Chattisgarh High Court
Mansharam Turkane vs The State Of Chhattisgarh on 15 July, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 2640 of 2022
1 - Mansharam Turkane S/o Shri Chhotelal, Aged About 43 Years
R/o Village Todgaon, Tahsil Aarang, P.S. Aarang, District : Raipur,
Chhattisgarh
---- Petitioner
Versus
1 - The State Of Chhattisgarh, Through The Secretary, Department Of
Panchayat And Rural Development, New Mantralaya, Raipur
(Chhattisgarh)
2 - The State Election Commission, Local Body, Raipur (Chhattisgarh)
3 - The Director, Panchayat And Rural Development Department,
Raipur, District : Raipur, Chhattisgarh
4 - The High Power Caste Scrutiny Committee Of Chhattisgarh
Schedule Caste, Schedule Tribe And Other Backward Class, Through
Its Secretary, Pandit Deen Dayal Upadhyay Marg, Sector-IV, Raipur,
District : Raipur, Chhattisgarh
5 - The Sub Divisional Officer (Rev.), Sub Division- Aarang/ Mandir
Hasaud, District : Raipur, Chhattisgarh
6 - The Naib Tahsildar, Sub Tahsil Nawapara (Abhanpur), District :
Raipur, Chhattisgarh
7 - The Chief Executive Officer, Janpad Panchayat Aarang, District :
Raipur, Chhattisgarh
8 - Santosh Kumar, S/o Shri Deepak Kumar Kondar Aged About 40
Years, Caste Kondar (Member Of Schedule Tribe), R/o Village
Todgaon, Tahsil Aarang, District : Raipur, Chhattisgarh
---- Respondents
For Petitioner : Mr. A.N. Bhakta, Advocate with Mr. Vivek Bhakta, Advocate For Res./State No.1,3, 4, 5 & 6 : Mr. Shubham Bajpai, P.L. For Respondent No.2 : Mr. Abhyuday Singh, Advocate For Respondent No.8 : Mr. Akash Kumar Kundu, Advocate 2 Hon'ble Shri Justice Parth Prateem Sahu Order On Board 15/07/2024Sd/- Sd/-
1. Petitioner has filed this petition challenging the order dated 19.02.2020, whereby respondent No.5/Sub-Divisional Officer dismissed the election petition filed by petitioner on the ground of its maintainability.
2. Facts relevant for disposal of this petition are that petitioner contested election of Sarpanch of Village Panchayat Todgaon along with other contestant including respondent No.8, which was held on 28.01.2020. The post of Sarpanch was reserved for a member belonging to the scheduled caste community. After declaration of result, respondent No.8 was declared as a returned candidate. Election on the post of Sarpanch of Gram Panchayat Todgaon is put to challenge by way of filing election petition under Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (Hereinafter referred to as "the Adhiniyam, 1993). The election petition was filed on 11-12.02.2020 pleading that caste of returned candidate/respondent No.8 "Kandra" is not mentioned in the list published by the State of Chhattisgarh as scheduled caste but caste "Kandra" is mentioned in the list published by State of Chhattisgarh of scheduled tribe and prayed for declaration of election of respondent No.8 to be illegal and void. After filing of election petition, it was listed for hearing on 12.02.2020 and thereafter it was listed on 19.02.2020 for hearing 3 on its maintainability. On 19.02.2020 election petition was dismissed after hearing arguments only, against which this petition is filed seeking following relief (s) :-
"10.1 That, the Hon'ble Court may kindly be pleased to call for the entire records of the case from the authorities concerned for its kind perusal.
10.2 That the Hon'ble Court may kindly be pleased to set-aside the impugned order dated 19.02.2020 (Annexure P-1), passed in Revenue Case No.1/A- 145/2019-20, by the Respondent No.5 (SDO Rev.).
10.3 That the Hon'ble Court may kindly be pleased to set-aside/quash the certificate of Sarpanch issued in favour of Respondent No.8 on 30.01.2020 (Annexure P-
7), and the petitioner be declared as elected Sarpanch of Gram Panchayat - Todgaon, in the interest of justice.
10.4 That the Hon'ble Court may kindly be pleased to direct the authorities concerned to take appropriate action against the Respondent No.08 and his father for committing fraud in obtaining the caste certificate. 10.5 Any other relief, which this Hon'ble Court deems fit and proper be also awarded."
3. Learned counsel for petitioner submits that petitioner has filed election petition under the provisions of Section 122 of the Adhiniyam, 1993 within 30 days from the date of election and therefore, it was within the limitation as prescribed under Section 122 of the Adhiniyam, 1993. The election petition was not dismissed on the ground that it suffers with any defects. Once 4 duly constituted election petition is filed within limitation as prescribed under Section 122 of the Adhiniyam, 1993 it is for the Election Tribunal to decide the election petition following due procedure prescribed under the Chhattisgarh Panchayat (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (Hereinafter referred to as "the Rules, 1995"). The Election Tribunal has dismissed the election petition at the threshold on its maintainability only observing that the grounds raised in the election petition was not raised at the time of submission of nomination papers. Once election petition is filed, it has to be decided after framing issues, examining witnesses.
4. Learned counsel for State opposes the submission of learned counsel for petitioner and would submit that respondent No.5 while passing the impugned order has assigned reasons that petitioner at the initial stage of submission of nomination paper has not raised any objection with regard to caste of respondent No.8 to be not a member belonging to scheduled caste nor at the time of scrutiny and therefore, he could not raise the said ground after conclusion of election proceedings.
5. Learned counsel for respondent No.8 supports the impugned order.
6. I have heard learned counsel for parties and perused the documents placed on record.
5
7. The subject matter of writ petition is election of respondent No.8 on the post of Sarpanch of Gram Panchayat Todgaon, which was held on 28.01.2020. The post of Sarpanch of Village Panchayat Todgaon is reserved for member belonging to scheduled caste is also not in dispute. Respondent No.8 and petitioner both contested the election and respondent No.8 was declared as a returned candidate. Election petition was filed on 12.02.2020 which is within 30 days. The limitation for filing of the election petition is provided under Section 122 (2) of the Adhiniyam, 1993. The limitation as prescribed under aforementioned provision is 30 days from the date of which the election in question was notified. Perusal of the impugned order passed by the respondent No.5/S.D.O. (Revenue) would show that election petition was not dismissed on the ground of defects in filing of election petition. The procedure for presentation of election petition, parties to the petition, contents of petition, relief which can be claimed in the petition, procedure on receiving petition and further procedure before the Specified Officer and his powers is provided under the Rules of 1995 framed in exercise of powers under Section 95 (1), read with Sub-section (1) & (3) of Section 122 of the Adhiniyam, 1993. Rule 3 of the Rules, 1995 deals with presentation of election petition. Rule 4 talks of parties to the election petition. Rule 7 deals with deposit of security and Rule 11 of Rules, 1995 provides for the procedure to be followed by the Specified Officer and his powers. Under sub-rule 1 of Rule 6 11 it is provided that 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. Under proviso to Sub-Rule 1 it is also mentioned 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.
8. This Court in case of Visheshar Dhruve Vs. Suresh Dhruve & Ors, reported in MANU/CG/1746/2023 has observed in para 9, 10, 12 and 14 which reads as under :-
"9. From bare reading of the Rule 11, it is clear that it is a procedural provision which empowers the Specified Officer to try an election petition, as may be as possible, in accordance with the procedure of the trial of suit. Rule 11 (2) has further specified in clause
(a) to (f), the manner and procedure for trial of election petition. Thus, there is no dispute that "provisions of the Civil Procedure Code, 1908 are made applicable in election petition filed under Section 122 of the Adhiniyam, 1993. This Court in Balaram Rathore vs. State of CG, AIR 2011 Chhattisgarh 134, while interpreting the provisions of Rule 11 of the Rules, 1995 has also held that for trial of an election petition, framing of issues and examination of witnesses, would be necessary as provided under Order 14 Rule 1 of the CPC.
10. Order 14 of the CPC provides for settlement of issues and determination of suit on issues of law or 7 on issues agreed upon. Rule 1 of Order 14 of the CPC provides that issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other shall form the subject of a distinct issue and thereafter, provisions have been made for framing of issues. Rule 3 of Order 14 of the CPC provides for material from which issues may be framed and Rule 4 provides for examination of witnesses and documents before framing issues. Rule 6 envisages that nothing in this rule require the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence. Meaning thereby, if respondent or defendant entered appearance and submit reply/written statement admitting pleadings of, the Court / authority can proceed to decide the matter on the basis of admissions. However, if there is categorical denial of allegations and contentions made in the election petition, the issues on the disputed questions of fact shall be framed and based thereon, the parties shall be called upon to lead evidence in support thereof.
12. Rule 11 of the Rules of 1995 cast a duty on the Specified Officer to enquire into every election petition as may be as possible, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Meaning thereby, if any election petition is filed under Section 122 of the Adhiniyam, 1993, it is incumbent upon the Specified Officer to decide the same as is done in civil jurisprudence i.e. after framing issues with regard to the pleadings which are asserted by one party and 8 denied by the other, and after giving opportunity to the parties to lead evidence, as provided under Order 14 of CPC.
14. Recently, the issue of non-compliance of the provisions of Rule 11 of the Rules of 1995 has come up for consideration before this Court in Writ Petition (C) No.1939/2020 (Smt. Girija Devi Agrawal vs. State of CG & ors, decided on 27.8.2020) and taking note of its earlier decision in case of Parvatia vs. Padmini & ors, reported in 2005 (2) CGLJ 335, has held thus:-
"17. The impugned order Annexure P/1, dated 10.08.2020 thus is not sustainable in the eye of law. The same is in contravention to the settled legal position and also is in contravention to the statutory provision. The same deserves to be and is accordingly set aside. Once when this court holds that the order of setting aside of the election i.e. the impugned order dated 10.08.2020 to be bad in law and violative of rule provisions, any consequential action which has been passed by the authorities would also get rendered bad and void ab initio.
18. Therefore, the action of recounting of votes done by the respondents and in the course declaring the respondent No.6 as winning candidate also is liable to be declared bad and the same is also set aside. Since the order is being set aside on the technical ground of non following the procedure as specified in Rule 11 of Rules, 1995, the matter stands remitted back to the respondent No.3 for deciding the matter afresh after framing of issues and giving 9 opportunity of hearing to the parties to lead evidence."
9. In case of Makhan Lal Bangal vs. Manas Bhunia, reported in (2001) 2 SCC 652, the Hon'ble Supreme Court has held that in an election petition issues are to be framed and trial evidence has to be adduced. 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 proper adjudication of the dispute. It has been observed in the aforesaid case as under :--
"19. An election petition is like a civil trial, the stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the Court reflecting the pleadings of the parties pin-points into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other 10 should form the subject of a distinct issue. An obligation is cast on the Court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned Counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their Counsel are bound to assist the Court in the process of framing of issues. Duty of the Counsel does not be little the primary obligation cast on the Court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the Court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided."11
10. Rule 21 of the Rules, 1995 provides for grounds for declaring election to be void. Rule 21 (1) (d) (i) provides that election can be declared void if the Specified Officers is of the opinion that there is improper acceptance of any nomination also along with other grounds as mentioned therein. The relevant portion of the Rule 21 of the Rules, 1995 is extracted below for ready reference :-
"21. Grounds for declaring election to be void. -- (1) Subject to the provisions of sub-rule (2) if specified officer is of opinion --
(a) xxxx
(b) xxxx
(c) xxxx
(d). that the result of the election in so far as it concerns returned candidate has been materially affected.
(i) by the improper acceptance of any
nomination: or
(ii) xxxxx
(iii) xxxxx
(iv) xxxxx
the specified officer shall declare the election of the returned candidate to be void."
11. Copy of the election petition is also placed on record as Annexure P-3, wherein the sole ground raised is that respondent No.8 submitted nomination 'Form' showing him to be a member belonging to scheduled caste community. It is also specifically pleaded in the election petition that in the school register of father 12 of petitioner his caste is mentioned as "Kandra", which is not mentioned in the list of scheduled caste as declared and published by the State of Chhattisgarh. It is further pleaded that respondent No.8 being member of scheduled tribe community has submitted nomination form for the seat, reserved for scheduled caste category candidate and Respondent No. 8 was permitted to contest the election.
12. Perusal of the impugned order Annexure P-1 would show that Specified Officer under the Adhiniyam, 1993 and the Rules, 1995 has not dismissed the election petition on technical defects or defect in constituting and submitting the election petition, but election petition was dismissed on the ground that, grounds as raised in the election petition was not raised at the time of submitting nomination papers. Under the Rules, 1995 or the provisions under Section 122 of the Adhiniyam, 1993, it does not bar from filing election petition if the acceptance of the nomination paper is not challenged at the initial stage i.e. its submission or scrutiny.
13. In case of State Election Commission M.P. Vs. Ras Bihari, reported in AIR 1995 MP 245, the Division Bench of High Court of Madhya Pradesh has observed that where any nomination paper is rejected by the Returning Officer under Rule 35, his order is final subject to revision, if any, under rule 36. The Election Commission has no jurisdiction to review such an order 13 either on any application or suo motu. The remedy lies in an election petition only under the provisions of this Section.
14. Under Rule 21 of the Rules, 1995 one of the ground for declaring election to be void by way of filing election petition is "by the improper acceptance of any nomination", hence, when the election petition is filed on the ground as provided under Rule 21 of the Rules, 1995 it is for the Specified Officer to follow the procedure as provided under Rule 11 of the Rules, 1995 and ought to have conducted an enquiry into the grounds raised in the election petition in accordance with the Rules, 1995.
15. As the Specified Officer has not followed the procedure as envisaged under Rule 11 of the Rules, 1995 and has dismissed the election petition by the impugned order only on the ground that objection is not raised at the time of submission of nomination paper the order impugned dismissing election petition, is not sustainable accordingly it is set-aside.
16. For the forgoing reasons, the writ petition is allowed. Impugned order dated 19.02.2020 is set-aside and the matter is remitted back to the respondent No.5/Sub-Divisional Officer (R) to decide the election petition afresh in accordance with law.
Sd/-
(Parth Prateem Sahu) Judge Balram