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2012 DIGILAW 109 (CHH)

SHIFANATH v. STATE OF C. G.

2012-04-11

PRASHANT KUMAR MISHRA

body2012
ORDER 1. Both the above mentioned writ petitions are disposed of by this common order because they are arising from the same election but giving rise to separate Election Petitions. 2. In the election held on 28.01.2010, the petitioner was elected as Sarpanch of Gram Panchayat Kasturi, Tahsil Jagdalpur, District Bastar. Respondent no.2 Kundomani and respondent no.3 Krishna Kumari preferred two separate election petitions to challenge his election before the Election Tribunal. In course of trial of Election Petition, the Election Tribunal directed for holding recount of votes on 29.10.2011. The said order was challenged by the petitioner by filing W.P(C).No.6715/2010 & W.P(C).No. 6716/2010 which were allowed by order dated 23rd November, 2010 (Annexure P-8) on the ground that the Election Tribunal should not have ordered for recount without framing issues on the basis of pleadings made by the parties. 3. It has been argued by learned counsel for the petitioner that after the decision rendered by this Court in the earlier writ petition, Election Tribunal was required to frame issue and thereafter proceed to record evidence of the parties in the manner required in law after serving them with notice but no notice was served on the petitioner and the petitioner was proceeded exparte. He would submit that the manner in which the Election Tribunal proceeded with the trial is wholly illegal and contrary to the procedure prescribed in law, therefore, the impugned order deserves to be set aside. 4. On the other hand, learned State Counsel as well as the learned counsel for the Election Petitioners have argued that the earlier writ petition was decided in the presence of parties, therefore, the Tribunal was not required to summon the parties again and in any case, the petitioner being aware of the proceedings should have remained present before the Election Tribunal instead of consuming time and allowing the proceedings to go on. 5. I have heard learned counsel for the parties at length and perused the record. 6. The earlier order in W.P (C). Nos. 6715/2010 & W.P(C).No.6716/2010 was presented before the Election Tribunal by the Election Petitioner Kundomani on 06.12.2010 and thereafter, the Election Tribunal directed for summoning the parties. Complete order sheets of the proceeding before the Election Tribunal have been filed alongwith the writ petition, on perusal of which it would appear that the notice remained unserved as per the order sheet recorded on 13.12.2010. Complete order sheets of the proceeding before the Election Tribunal have been filed alongwith the writ petition, on perusal of which it would appear that the notice remained unserved as per the order sheet recorded on 13.12.2010. The order sheets of different dates record that the parties are not present and they be summoned. On 27.06.2011, the Election Tribunal again directed for issuance of notice. In the order sheet of 27.6.2011 and 15.07.2011 also, it is mentioned that the non-applicants be summoned. However, on the next date of hearing i.e., 22.07.2011, the Election Petitioner submitted affidavit under Order 18 Rule 4 of CPC and the Tribunal again directed for summoning Non-Applicants 1, 3, 4 & 5. On 08.08.2011 the Election Petitioner as well as Non-Applicants 4 & 5 were present and the matter was proceeded exparte. The case was fixed for 12.8.2011 and thereafter, on 19.8.2011 for arguments and the matter was closed for orders. 7. From a reading and examination of the order sheets of Election Tribunal as mentioned above, it would appear that the Election Tribunal had earlier decided the Election Petition after holding recount and the said order has been set aside by this Court and the matter was remitted back to decide the Election Petition afresh in accordance with law after framing issues and examining the witnesses. When the Tribunal was directed to decide the Election Petition in accordance with law, it would mean, by summoning all the parties to the Election Petition and securing their presence in the manner recognized in law, the Tribunal was not only required to frame issues but was also required to examine the witnesses which could have been possible only when the parties including the petitioner who was elected as Sarpanch are served with the notice of the Election Petition. Copies of the notices sent to the petitioner have been placed on record as Annexure P-11 wherein the Process Server has endorsed that the petitioner refused to accept the notice in the presence of village Kotwar. This notice was for hearing on 08.08.2011. The endorsement of the process server does not mention any date of noting. From the order sheet of the Election Tribunal recorded on 08.08.2011, it does not appear that the Tribunal recorded a satisfaction about service of notice. The said order sheet is reproduced hereunder:- "Election Petitioner with his Advocate Sudhir Pandey present. This notice was for hearing on 08.08.2011. The endorsement of the process server does not mention any date of noting. From the order sheet of the Election Tribunal recorded on 08.08.2011, it does not appear that the Tribunal recorded a satisfaction about service of notice. The said order sheet is reproduced hereunder:- "Election Petitioner with his Advocate Sudhir Pandey present. Non-applicants 4 & 5 present. Statements of non-applicants 4 & 5 are recorded. Non-applicant no. 1 is absent. Non-applicant No.3 is summoned. Not present. Proceeded exparte." On any previous date of hearing, the Election Petitioner was not cross-examined after filing affidavit under Order 18 Rule 4 of CPC. In fact, the matter was never fixed for recording evidence before 22.07.2011 when the Election Petitioner submitted affidavit under Order 18 Rule 4 of CPC. 8. In Long Life Carpet Industries, Gaharpur and others Vs. Smt. Kesar Jahan AIR 1988 Allahabad 55, it has been held that after restoration of the suit dismissed exparte against the defendant, he must be given notice of the date fixed by the Court for hearing and unless such notice was given it would practically amount to passing a decree without giving him any opportunity of hearing. 9. In exercise of powers under section 95 read with section 119 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993, Rules have been framed regarding service of notice which are known as the Chhattisgarh Panchayat (Method of Service of notice and Document) Rules 1995 (hereinafter referred to as the "Rules 1995"). Section 119 of the Adhiniyam provides that save otherwise provided in this Act, the service of any notice or other documents under this Act or under any rule, bye-law or order made thereunder shall be effected in the prescribed manner and the manner has been prescribed by framing Rules (supra). In the said Rules 1995, the following has been provided under Rule 3 regarding service of any notice or other document under the Act. Rule 3 Rule reads as under : "3. In the said Rules 1995, the following has been provided under Rule 3 regarding service of any notice or other document under the Act. Rule 3 Rule reads as under : "3. Save as otherwise provide in the Act the service of any notice or other document under the Act or under any rule, bye-law or order made thereunder on any person to whom it is by name address shall be effected- (a) by giving or tendering the said notice or document to such person; or (b) if such person is not found, by giving or tendering the same to some adult member or servant of his family; or (c) by sending the same by post under certificate of posting; or (d) if such person does not resides in the jurisdiction of Panchayat and his address elsewhere is known to the officer directing the issue of such notice or document by sending the same to him by registered post of acknowledgment: Provided that if officer directing the issue of such notice or document is satisfied that the addressee is evading the notice or document and the notice or document cannot be served by the methods mentioned as above, the said officer shall cause such notice or document to be served by affixing a copy thereof upon some conspicuous part of the last known place of residence or business of the person concerned and service shall be as effectual as if it had been made on the addresses personally." On a plain reading of the above quoted Rule 3, it would appear that the notice has to be served by giving or tendering the said notice or document to the person concerned and where the officer directing to issue such notice or document is satisfied that the addressee is evading the notice or document and the notice or document cannot be served by the methods mentioned above, the said officer shall cause such notice or document to be served by affixing a copy thereof upon some conspicuous part of the last known place of residence or business of the person concerned and service shall be as effectual as if it had been made on the addresses personally. 10. In Sushil Kumar Sabharwal Vs. 10. In Sushil Kumar Sabharwal Vs. Gurpreet Singh and other AIR 2002 SC 2370 it has been held that when the defendant allegedly refused to accept the notice and the process server neither affixed copy of summons and plaint on wall of premises in question nor making, tendering of summons, its refusal, and affixation on wall witnessed by persons, identifying the defendant, it amounts to non-service of summons. In Sushil Kumar Saha Vs. Juran Chandra Saha AIR 1993 Gauhati 48, it has been held that when summons alleged to have been served by affixation but return of serving officer not verified by affidavit nor officer examined, the party cannot be proceeded exparte. 11. In the case in hand, when the petitioner allegedly refused to accept notice it was obligatory for the Presiding Officer to have recorded his satisfaction that the endorsement made by the Process Server has been correctly recorded and the Presiding Officer should have thereafter recorded the satisfaction in the order sheet to conclude that he is treating the said refusal as effectual service of notice on the petitioner. However, without mentioning anything about the service of notice or for that matter even without recording the fact that the petitioner has refused to accept the notice the Tribunal proceeded ex-parte and has thereafter examined the witnesses in absence of petitioner and again passed the final order. The manner in which the Election Petition has been tried by the Tribunal is contrary to Rule 3 of Method of Service of Notice and Document Rules 1995 and since after the matter was remitted back by this Court, the petitioner was required to be noticed afresh for examining the witnesses after framing issues, the entire trial and the election petition is vitiated. 12. In view of the above, both the writ petitions succeed on this ground alone and are allowed. The impugned orders dated 26.08.2011 & 3.9.2011 are set aside. The matter is again remitted back to the Election Tribunal for deciding it afresh after noticing all the parties to the Election Petition and allowing them to produce their witnesses. Petitions Allowed.