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2012 DIGILAW 383 (JHR)

Geeta Devi v. State of Jharkhand

2012-03-16

N.N.TIWARI

body2012
ORDER 1. In this writ petition, the petitioner has prayed for quashing the order dated.10.1.2012 passed by the Divisional Commissioner, North Chotanagpur Division-cum-Election Tribunal, Hazaribagh under Section 151 (iii) of Jharkhand Panchayat Raj Act. 2. By the said order learned Divisional Commissioner has directed for recounting of votes and examination of rejected ballots. The impugned order has been challenged by the petitioner on the ground that the same is wholly arbitrary, illegal and passed without following the rules and the procedure provided for dealing with the election petition. The procedure for filing election petition and hearing thereof and the relevant provisions have been dealt with under Chapter-13 of the Jharkhand Panchayat Election Rules, 2001 (hereinafter to be referred as the said Rules). 3. According to the petitioner, Rules 112 and 113 provide for a complete procedure for dealing with the election petition filed by the aggrieved person. Rule 113 of the said Rules provides for hearing of election petition in accordance with the procedure provided for hearing in Civil Procedure Code, 1908. 4. In the instant case learned Tribunal has entertained the petition and has passed order without following the said procedure. 5. The writ petitioner is a returned candidate. The election petition was filed against him. Summonses were issued. The petitioner appeared on 16.11.2011 by filing vakalatnama. It would be evident from order sheet dated 29.11.2011 that without giving opportunity for filing written statement and without hearing the petition in accordance with the procedure prescribed in the Civil Procedure Code, learned Tribunal fixed the case for orders on 10.1.2012, the impugned order was passed holding that the result of the election was vitiated and that the votes are required to be recounted. He also held that there was a mistake in tabulation of, votes. 6. Learned Tribunal directed the District Election Officer, Giridih to recount the votes within two months also by scrutinizing the rejected votes. 7. It has been submitted that the election petition cannot be dealt with and disposed of in the manner, it was disposed of. Law does not permit disposal of election petition in a mechanical and summary manner. It prescribes a detailed procedure, as provided in Civil Procedure Code. The impugned order is wholly arbitrary, illegal and without jurisdiction and is liable to be quashed. 8. The writ petition has been contested by the election petitioner-respondent No.6. Law does not permit disposal of election petition in a mechanical and summary manner. It prescribes a detailed procedure, as provided in Civil Procedure Code. The impugned order is wholly arbitrary, illegal and without jurisdiction and is liable to be quashed. 8. The writ petition has been contested by the election petitioner-respondent No.6. In the counter affidavit it has been stated that there was irregularity in the counting of votes, which was objected to by the election agent of respondent No.6. But the said objection was not heeded upon. The writ petitioner then filed the said election petition challenging the election. Learned Divisional Commissioner/Tribunal found the illegality on the basis of the record and accordingly decided the case in favour of respondent No. 6 and directed for recounting and scrutiny of the rejected ballot papers. 9. Mr. V.P. Singh, learned Senior Counsel appearing on behalf of the respondent No. 6 submitted that the Commissioner has decided the election petition on the basis of the records and in presence of the petitioner and, as such, the order cannot be said to be arbitrary, illegal or without jurisdiction. Learned counsel submitted that though the procedure laid down in Civil Procedure Code has not been followed, learned Divisional Commissioner has decided the matter in presence of the petitioner and on the basis of the documents. The petitioner has not been put to any prejudice by the said under. The order of learned Tribunal is sound and legal and required no interference by this Court. 10. Counter affidavit has been also filed on behalf of the other respondents, but no clear stand has been taken by them; 11. I have heard learned counsel for the petitioner and counsel for the contesting respondent No. 6 as also the State respondents and perused the facts and materials on record. 12. On perusal of order sheet of learned Tribunal in Election Petition (Appeal) No. 25/2011, I find that the writ petitioner, who is the returned candidate and against whom the election petition was filed, for the first time appeared on 16.11.2011 by filing Vakalatnama. Thereafter, 29.11.2011 was fixed as the next date. On perusal of the order sheet dated 29.11.2011, it is evident that on that date, the parties were heard and the case was fixed for order on 10.1.2012. Thereafter, 29.11.2011 was fixed as the next date. On perusal of the order sheet dated 29.11.2011, it is evident that on that date, the parties were heard and the case was fixed for order on 10.1.2012. The impugned order is dated 10.1.2012, whereby learned Commissioner-cum-Tribunal has held that there was irregularity in counting and that the result was wrongly declared. He has directed for recounting of votes. 13. The grievance of the petitioner is that the said election petition has been dealt with arbitrarily and the impugned order has been passed without following the procedure prescribed by law and is wholly illegal. It has been submitted on behalf of the petitioner that the election petition has not been dealt with and heard in accordance with the procedure prescribed in Chapter-13 of Jharkhand Panchayat Election Rules, 2001 and is non est and liable to be quashed. 14. On going through Chapter-13 of the said Rules I find that procedure for filing election petition, hearing and disposal thereof has been provided in detail. 15. Rule 113 provides for the procedure for hearing election petition, which reads as follows:- "Chunav Yachika Ki Sunwai. Vihit Pradhikari Vyavhar Prakriya Sanhita, 1908 Mein Vihit Riti Se Chunav Yachika Ki Sunwai Karega." 16. It has been clearly provided in the said rule that the election petition shall be heard in accordance with the procedure prescribed in the Civil Procedure Code, 1908. 17. The Civil Procedure Code, 1908 prescribes for appearance of the parties, giving opportunity to file written statement and filing documents and extensive procedure for hearing and examining the parties, discovery and inspection, production, etc. of the documents, settlement of issues, summoning, attendance and examination of witnesses and arguments before pronouncing the judgment. Admittedly the said prescribed procedure has not been followed in this case. The election petition has been summarily disposed of just on the next date of appearance without affording opportunity to the petitioner for hearing the petition in accordance with the procedure prescribed by law. 18. I, therefore, find substance in the grievance and submission of the petitioner that the election petition has been summarily and illegally dealt with and disposed of without hearing in accordance with law. 19. In view of the above, the order dated 10.1.2012 passed by the learned Commissioner-cum-Tribunal cannot sustain and the same is quashed. 18. I, therefore, find substance in the grievance and submission of the petitioner that the election petition has been summarily and illegally dealt with and disposed of without hearing in accordance with law. 19. In view of the above, the order dated 10.1.2012 passed by the learned Commissioner-cum-Tribunal cannot sustain and the same is quashed. The matter is remitted to the Divisional Commissioner-cum-Tribunal for dealing with the petition afresh in accordance with the procedure prescribed in Chapter-13 of the Jharkhand Panchayat Election Rules, 2001. Both the parties shall appear on 30th April, 2012 before learned Divisional Commissioner/Tribunal for further proceeding in the case, in accordance with law.