BENCH AT INDORE v. Ramesh

Shri Mukesh Sinjonia, learned counsel for the petitioner. Shri Asif Warsi, learned counsel for the respondent no.1. ------------------------------------------------------------------------------------ W.P. No.14614/2010 Mamta Bai W/o Radheshyam .... Petitioner Vs. Sangeeta Bai W/o Dinesh and 9 othrs .... Respondents ------------------------------------------------------------------------------------ Shri A.K. Sethi, learned senior Advocate with Shri Rahul Sethi Adv., for the petitioner. Shri Ramesh Chhajed, learned counsel for the respondent no.1. Smt. Jyoti Tiwari, learned G.A. for the respondent/State. ------------------------------------------------------------------------------------- Whether approved for reporting : ------------------------------------------------------------------------------------ ORDER (Passed on 11.7.2011) This order will govern the disposal of W.P. Nos.14612/2010, 14610/2010, 14611/2010, 14613/2010 & 14614/2010. 1/ These writ petitions have been filed by the returned candidates against the orders even dated 27.12.2010 passed by the Sub Divisional Officer and the specified officer, Narsinghgarh, District Rajgarh (Biaora) allowing the election 3 petitions and setting aside the election of the writ petitioners on the post of Sarpanch. 2/ These writ petitioners had contested the election to the post of Sarpanch of following village Panchayats of Vikaskhand Narsinghgarh and were elected as Sarpanch in Fabruary 2010 :- i. W.P. No.14610/2010 :- Village Panchayat Parasukhedi, Tehsil Narsinghgarh, Distt. Rajgarh (Biaora). ii. W.P. No.14611/2010 :- Village Panchayat Kuklyakhedi, Tehsil Narsinghgarh, Distt. Rajgarh (Biaora). iii. W.P. No.14612/2010 :- Village Panchayat Bhuchakhedi, Tehsil Narsinghgarh, Distt. Rajgarh (Biaora). iv. W.P. No.14613/2010 :- Village Panchayat Jhagaria, Tehsil Narsinghgarh, Distt. Rajgarh (Biaora). v. W.P. No.14614/2010 :- Village Panchayat Jhadpiplya, Tehsil Narsinghgarh, Distt. Rajgarh (Biaora). 3/ The post of Sarpanch in the aforesaid Panchayats were reserved for the backward class candidate. The election petitions were filed by the respondent no.1 in the writ petitions inter alia raising the plea that the writ petitioners do not belong to the backward class since they are Chourasia Rajput. The writ petitioners had contested the election petitions and thereafter the Tribunal by the impugned order has set aside the election of the writ petitioners by holding that the writ petitioners do not belong to the backward class and further declaring the writ petitioner disqualified for contesting the election for six years. 4 4/ Common arguments advanced by learned counsel appearing for the writ petitioners is that the procedure prescribed under the relevant rules has not been followed in as much as the parties were not given opportunity to adduce oral evidence and to cross-examine the witnesses. They further submitted that no original documents were produced by the election petitioners in evidence, therefore, the said documents cannot be relied upon. They also submitted that the election petitioners have failed to discharge the onus of establishing that the writ petitioners do not belong to the backward class. They have also submitted that the order disqualifying the writ petitioners for six years is unsustainable since such power was not available with the SDO while deciding election petition. 5/ Learned counsel appearing for the election petitioners (respondent no.1 in all writ petitions) supporting the order of the SDO submitted that the orders do not suffer from any error. The parties had filed the documents as well as the affidavits in evidence and thereafter the impugned orders have been passed. They have relied upon Rule 29 of the Rules to show that the SDO had the power to disqualify the petitioner from contesting the election for six years. 6/ I have heard the learned counsel for the parties and perused the record. 7/ The election petitions were filed by the respondent no.1 under Rule 122 of the M.P. Panchayat Raj Adhiniyam, 1993 (for short “the Act”). Rules have been framed namely M.P. Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short “the 5 Rules) under the Act. The Rule 11 and 12 deal with the procedure required to be followed by the specified officer while deciding the election petition and read as under :-

11. Procedure before the specified officer and his powers.-(1) Subject to the provisions of these rules, every election petition shall be enquired into by the specified officer as nearly, as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908, to the trial of suits: Provided that it shall only be necessary for the specified officer to make a memorandum of the substance of the evidence of any witness examined by him. (22) The specified officer, shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters:- (a) (b) Discovery and inspection; Enforcing the attendance of witnesses, and requiring the deposit of their expenses; (c) (d) (e) Compelling the production of document; examination of witnesses on oath; Reception of evidence taken on affidavit; and (f) issuing commission for examination of witnesses and summoning and examining suo moto any person whose evidence, appears to him to be material.

12. Parties to produce their witnesses.- It shall be the duty of the parties to produce their witnesses on the date fixed for evidence, and they shall not be entitled to an adjournment for non-attendance of their witnesses; Provided that the specified officer may, at his discretion, order the issue of summons to any witness on the necessary process fee and costs being deposited by the party concerned. 8/ The Rule 16 of the Rules quoted below provides for the application of the Indian evidence Act, 1872 :- 6

16. Application of the Indian Evidence Act, 1872.- Subject to the provisions of these rules, the provisions of the Indian Evidence Act, 1872 (1 of 1872) shall apply in all respects to an enquiry into an election petition. 9/ The Section 137 and 138 of the Indian Evidence Act dealing with the recording of oral evidence provide as under :-

137. Examination-in-chief.-The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination.-The examination of a witness by the adverse party shall be called his cross- examination. Re-examination.-The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination.

138. Order of examinations.-Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.-The re- examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re- examination, the adverse party may further cross- examine upon that matter. 10/ This Court in the matter of Lalamadas S/o Roopdas Lilhare Vs. Vidyawatim W/o Umdas Lilhare and others reported in 2007(1) MPLJ 410 while considering Rule 11 has held as under :- “The aforesaid provision specifically provides that the enquiry in the election petition shall be as nearly as may be in accordance with the procedure applicable to the trial of suits under the Code of Civil Procedure. But in this case after filing of the pleadings 7 the presiding officer heard preliminary arguments and on the basis of this the election petition has been Though in the order the tribunal has dismissed. referred the evidence filed by the parties and discussed them but without extending any opportunity to the parties to cross-examine on the aforesaid affidavits. Apart from this no order was passed by the Election Tribunal in respect of filing of any evidence on affidavits by the parties. It appears that the aforesaid affidavits were filed along with the election petition and the reply of the parties and considered by the Election Tribunal while deciding the case. Such recourse was not available to the Election Tribunal as the procedure envisaged in the Code of Civil Procedure has been made applicable to the Election Tribunal under the Rules. In the absence of this, the evidence produced by the parties along with the pleadings ought not to have considered by Election Tribunal while deciding the case of the preliminary arguments. The Election Tribunal ought to have directed the parties to produce the witness or to produce their evidence on affidavits. If the procedure for filing of the evidence on affidavits could have been followed, then the parties ought to have been allowed an opportunity to cross-examine the deponent of the affidavit but in absence of this the affidavit filed along with the election petition or reply ought not to have been taken into consideration while deciding the matter. Preliminary objections may be considered by the Election Tribunal but the scope of preliminary objections is limited under Rule 8 of the Rules, in respect of objection relating to the presentation of election petition under Rule 3, non- furnishing of the security as required under Rule 7 of the Rules or non-impleadment of parties as required under Rule 4 of the Rules. Except these, there is no provision for hearing preliminary objection and deciding the case at preliminary stage. The Election Tribunal committed an error of jurisdiction in adopting the aforesaid procedure which is not permissible under the law.” 11/ Another Single Bench of this Court in the matter of Kalka Prasad V. Ramji Lal and others reported in 2002(3) 8 MPHT 547 relying upon the judgment of the Supreme Court in the matter of Mahan Lal Bangal Vs. Manas Bhunia and others [2001(2) SCC 652] has taken the view that framing of issues and recording of evidence is necessary in the trial of the election petition under the Panchayat Act, by observing as under :- “11. The Tribunal had not jurisdiction or authority to entertain the petition as it was filed beyond the period prescribed for filing of an election petition. In these circumstances the learned Election Tribunal should have dismissed the petition. Apart from this, the order Annexure P-6 rejecting the application for framing of issues and recording of evidence was also unsustainable in law. The Supreme Court in the case of Makhan Lal Bangal Vs. Manas Bhunia and others, (2001)2 SCC 652, has held that in an election trial evidence has to be adduced and issues are also to be framed. It has been held by the Supreme Court in the aforesaid case that trial of an election petition is like a civil trial and framing of issues and recording of evidence are necessary for the proper adjudication of the dispute.” 12/ In the matter of Ashok Kumar Rawat Vs. State of M.P. and others reported in 2002(4) MPLJ 446 in which there was a serious dispute between the parties as regard the social status of the returned candidate, this Court took the view that such a dispute can not be decided on the basis of affidavits and documents but it should be decided on the basis of the evidence. This Court with said observations had dismissed the writ petition by observing :- “13. A perusal of the above indicates that a 9 person has to be disqualified by or under any law made by the legislature of the State. In the present case, I am of the opinion that this provision cannot be brought into effect. The question in the present case is with regard to social status of the respondent No.6. Even though, the petitioner prima facie has tried to establish that he belongs to Sapera by caste and by placing reliance on entries made in certain khasras, it is demonstrated that he belongs to a Scheduled Caste and not Scheduled Tribe. But the respondent No.6 has made and having specifically stated that he has filed his caste certificate before the Election Officer and it was only after the caste certificate was scrutinized that he was permitted to contest. That being so, there is a serious dispute between the parties with regard to social status of the respondent No.6. This requires adjudication of the matter. Apart from this, election rules known as Madhya Pradesh Panchayat (Upsarpanch, President and Vice President) Nirvachan Niyam, 1995 have been framed. In the said election rules, provision for nomination paper, scrutiny of nomination paper and various other procedure have been prescribed. If the petitioner has any objection, he should have immediately objected at the time of submission of nomination paper by the respondent No.6 and at the time of scrutiny of nomination paper. It seems that no such objection was raised at the time of scrutiny of nomination papers before the Election Officer. It is for the first time that a dispute has been brought before this Court in the form of present petition chalenging the social status of the petitioner. In the opinion of this Court, determination of the social status of the respondent no.6 and the fact with regard to his being member of the Schedules Caste or Scheduled Tribe cannot be decided only on the basis of the affidavits and documents brought on this record. For this, the petitioner has to raise a dispute before the Election Tribunal and it will be the appropriate authority to decide the dispute on the basis of the evidence. This is not a case where the disqualification prescribed under the law is apparent on the face of the record, as laid down by the Supreme Court in the case of K. Venkatachalam, (supra). In this view of the matter, the law laid down 10 by the Supreme Court in the case of K. Venkatachalam (supra) is not applicable in the present case.” 13/ The Division Bench of this Court in the matter of Lata Patel Vs. Smt. Kamlesh Gautam reported in 2008(1) MPLJ 388 has taken the view that the cross-examination of a witness is integral part of the statement of the witness and any statement is to be read as a whole without ignoring the cross- examination and only relying upon the examination-in-chief. 14/ From the above quoted provisions of law and the judgments it is clear that the SDO was required to conduct the election petition as nearly as possible like a trial of the suit by keeping in mind the provisions of Rule 11. He was also required to fix the election petition for recording the evidence of the parties in terms of Rule 12 and while recording evidence, if any adduced by the parties, follow the provisions contained in Section 137 and 138 of Evidence Act. 15/ In these matters it is not in dispute that the post of Sarpanch was reserved for the backward class candidate and under the notification issued by the State Government “Barai (Chourasia)” is included in the list of the backward class. The returned candidates claim that they belong to Chourasia backward class. The election petitions were filed raising the plea that the returned candidates belong to Chourasia Rajput (General Category) and are not from backward class. The returned candidates had filed the reply denying the said fact and had also filed the necessary documents in support of their plea that they belong to Chourasia backward class except in 11 W.P. No.14614/2010 where the returned candidate instead of filing the formal reply to election petition, had filed his affidavit opposing the election petition. The proceedings before the SDO indicate that the SDO had required the Tehsildar to submit the comments on the election petition but in some case comments were not received and in some case comments were received in favour of returned candidate. 16/ On the direction of this Court the original record of trial of election petition has been produced before the Court to ascertain the procedure followed by the SDO. In W.P. No.14612/2010 it is noticed that on 1.12.2010 the matter was fixed for evidence though the issues were not framed till that time. The SDO had framed issues on 3.12.2010 and fixed the matter for documentary evidence and arguments on 4.12.2010. The election petitioner had filed the documentary evidence on

4.12.2010 and matter was fixed for documentary evidence of returned candidate on the next date. On 6.12.2010 both the parties had filed the affidavits under Order 12 Rule 4 of the C.P.C. and the SDO had observed that they will be decided at the time of order (“Inka Nirakaran Vaqt Adesh Kiya Jayega”) and thereafter the matter was fixed for filing written arguments and arguments on 8/12/2010 and on that date the case was closed for order. The order-sheet dated 6/12/2010 does not make it clear if the affidavits were accepted by SDO. Before fixing the case for argument the returned candidate was given hardly any opportunity to examine the affidavits and pray for cross-examination. 17/ In W.P. No.14611/2010 the Tehsildar submitted the 12 report dated 27.10.2010 stating that the returned candidate belongs to the backward class. The proceedings before the SDO indicate that the issues were framed on 3.12.2010 and the matter was fixed for evidence and arguments on 6.12.2010, when the returned candidate had filed the affidavit of himself and his witness and the matter was fixed for the evidence of the election petitioner and arguments on 8.12.2010. On 8.12.2010 both the parties had filed their written arguments and the matter was closed for orders. This shows that election petitioner had not adduced any evidence after framing of issues on 3/12/2010. 18/ In W.P. No.14610/2010 the proceedings before the SDO indicate that the SDO had fixed the case for evidence on

1.12.2010 without framing the issues. The SDO had framed the issues on 3.12.2010 and had fixed the matter for documentary evidence and arguments. The election petitioner had filed the evidence on 4.12.2010 and the matter was fixed for the documentary evidence of the returned candidate who had filed the documentary evidence on 6.12.2010 and the matter was fixed for the evidence of election petitioner on

8.12.2010. On 8.12.2010 both the parties had filed their written arguments and the matter was closed for orders. This shows that when the matter was fixed for election petitioner's evidence on 8/12/2010, he had not adduced any evidence. In this matter the petitioner had also questioned the jurisdiction of the SDO Narsinghgarh and had raised the preliminary objection in respect of non compliance of Rule 3, 4 and 7. 19/ In W.P. No.14613/2010, the Tehsildar had given report in favour of returned candidate. On 3.12.2010 SDO had 13 framed the issues and fixed the matter for evidence. On

6.12.2010 the returned candidate had filed the affidavit and the matter was fixed for the evidence of the election petitioner. On

8.12.2010 the election petitioner had filed the documents and the matter was fixed for arguments on 13.12.2010 and on that date the case was closed for orders. This also shows that after filing of affidavit by the election petitioner, the returned candidate was not given any opportunity to cross-examine the witness or even to pray for it. 20/ In W.P. No.14614/2010 the Tehsildar had submitted the report dated 1.11.2010 stating that the returned candidate belongs to the backward category. The proceedings before the SDO indicate that on 3.12.2010 the issues were framed and the matter was fixed for the documentary evidence and arguments. On 6.12.2010 the returned candidate had filed the affidavit stating that she belongs to the backward class. She had also filed the affidavit of one Lakshman Singh along with documents. The matter was fixed for the evidence of the election petitioner on 8.12.2010. On 8.12.2010 the election petitioner had filed the documents and the matter was closed for orders. 21/ The aforesaid analysis indicate that the SDO had hurriedly concluded the proceedings in the election petitions. In all the election petitions the issues were framed on 3/12/2010 and almost within a week of framing of issues the election petitions were closed for orders. 22/ The issue which was being tried in the election petition was a serious issue concerning the caste of the 14 returned candidates which could only be decided by giving adequate opportunity to the parties to adduce oral and documentary evidence and permitting cross-examination of the witness. The proceedings indicate that even the adequate opportunity was not given by the SDO to parties to make a request for the cross-examination of witnesses. In some of the matter it has been noted that after framing of issues the election petitioner had not adduced any evidence yet the election petition has been allowed. In other matter immediately on filing the evidence by election petitioner the matter was fixed for arguments or closed for order without giving any opportunity to the returned candidate to make a request for cross-examining the witnesses whose evidence was given in affidavit. Such affidavits without giving opportunity to cross-examine the witness could not have been relied upon. In some matters the documents filed by the election petitioners have not been proved by any witness. In case of photocopies of documents their authenticity is to be seen. This shows that the election petitions have not been decided following the procedure prescribed in the Rules specially Rules 11, 12 and 16. 23/ It is also noticed that the SDO has disqualified the returned candidates from contesting election for 6 years without mentioning any provision of law. He has neither found it to be a case covered under Section 40 or Rule 29 which provide for disqualification, therefore, that part of the order of SDO also suffers from serious error. 24/ Thus the impugned order dated 27/12/2010 passed by the SDO Narsinghgarh, Distt. Rajgarh (Biaora) can not be 15 sustained and are set aside with a direction to the SDO to decide the election petitions afresh by properly following the procedure prescribed under the relevant provisions of law. Looking to the nature of dispute SDO is directed to conclude the proceedings within 3 months from the date of receipt of certified copy of this order. Parties are directed to appear before the SDO on 25/7/2011. 25/ The writ petitions are accordingly allowed. 26/ Original order is kept in W.P. No.14612/2010, a copy whereof be placed in the record of W.P. Nos.14610/2010, 14611/2010, 14613/2010 and 14614/2010. No cost. J u d g e Trilok. (PRAKASH SHRIVASTAVA)