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2023 DIGILAW 507 (CHH)

Visheshar Dhruve S/o Karthik Ram Dhruve v. Suresh Dhruve S/o Bhawar Singh

2023-09-25

PARTH PRATEEM SAHU

body2023
ORDER : 1. Challenge in this writ petition is to the order dated 11.3.2022 passed by the Sub-Divisional Officer-cum-Specified Officer (Panchayat) in Appeal Case No.202003080100002/B-121/ 2019-20. 2. Facts of the case, in brief, are that the petitioner was elected as Sarpanch of Gram Panchayat Baiharsari. Respondent No.1 filed an election under Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (henceforth 'the Adhiniyam, 1993') questioning election of petitioner inter alia on the ground that petitioner has encroached upon the government land by raising construction thereon; he had suppressed material particulars of criminal case registered against him while furnishing information with his nomination paper. On service of notice of election petition, petitioner filed reply denying all adverse allegations in election petition. Petitioner also moved an application under Order 7 Rule 11 of the Civil Procedure Code, 1908 (for short 'CPC') for dismissal of election petition for non-compliance of mandatory provisions of the Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (for short 'the Rules of 1995'). Arguments were heard on application under Order 7 Rule 11 CPC on 06.01.2021 and it was fixed for order on objection/application under Order 7 Rule 11 CPC. Instead of deciding said application, the Sub-Divisional Officer-cum-Specified Officer passed the impugned order and removed the petitioner from the post of Sarpanch under the provisions of Section 40 of the Adhiniyam, 1993. It is observed by the SDO that petitioner has encroached upon the government land and as such he is guilty of misconduct in discharge of duties. 3. Learned counsel for the petitioner submits that Rule 11 of the Rules of 1995, prescribes procedure to be followed on receipt of an election petition, according to which, an election petition has to be enquired into in accordance with the procedure applicable under the Code of Civil Procedure is to be decided after holding trial. After submission of reply by petitioner herein denying all adverse allegations levelled in election petition, the Sub-Divisional Officer-cum- Specified Officer was required to proceed with the matter in accordance with Rule 11 of the Rules of 1995 and should have framed the issues, recorded evidence of the parties and granted opportunity for cross-examining the witnesses, if any. After submission of reply by petitioner herein denying all adverse allegations levelled in election petition, the Sub-Divisional Officer-cum- Specified Officer was required to proceed with the matter in accordance with Rule 11 of the Rules of 1995 and should have framed the issues, recorded evidence of the parties and granted opportunity for cross-examining the witnesses, if any. However, the Specified Officer without following the procedure prescribed under the Rules of 1995 i.e. without framing issues; recording evidence of the parties and giving opportunity for cross-examining the witnesses, has passed the order impugned removing petitioner from the post of Sarpanch. The manner in which election petition has been decided by the Specified Officer is absolutely contrary to the procedure prescribed under Rules 11 of the Rules of 1995 and therefore, the impugned order passed by the Specified Officer is liable to be set aside. He further contended that the Specified Officer has treated the election petition as an application under Section 40 of the Adhiniyam, 1993 and passed the impugned order, which is also bad in law. He also contended that during pendency of election petition petitioner filed an application under Order 7 Rule 11 of CPC seeking dismissal of election petition on the ground that Rule 3 (1) & (2) of the Rules, 1995 have not been complied with. The Specified Officer once heard arguments on application under Order 7 Rule 11 CPC, should have decided that application first because had that application allowed, the entire election petition would have been dismissed. Hence, the impugned order be quashed, the matter may be remitted back to the election tribunal for deciding the election petition afresh in accordance with law. 4. Learned counsel for respondent No.1 would submit that allegation against the petitioner is of suppression of material information while submitting nomination paper, which was found correct in a report submitted by the Tahsildar. Based on report submitted mentioning that petitioner had encroached upon the government land, the order of removal of petitioner from the post of Sarpanch was passed by the authority concerned following the procedure prescribed under the Adhiniyam, 1993 and the Rules of 1995. Before passing the order impugned, proper opportunity of hearing was afforded to the petitioner by issuing notice to which reply was also filed by him. Before passing the order impugned, proper opportunity of hearing was afforded to the petitioner by issuing notice to which reply was also filed by him. As the election petition involved singular point 'whether the petitioner suppressed material information at the time of submission of nomination paper', it was not incumbent upon the SDO to adhere to provisions of law, like framing the issues, recording statement of witnesses etc. Even otherwise, the Specified Officer has gone into all aspects of the matter while deciding with election petition filed by respondent No.1, obtained report from the Tahsildar with regard to encroachment of government land and only thereafter passed the impugned order. 5. Learned counsel for the State would submit that as per Section 36 (q) of the Adhiniyam, no person is eligible to be an office bearer of Panchayat who has encroached upon any government land. Upon enquiry, the petitioner was found to be encroacher of the government land and therefore, the Specified Officer has passed the order of removal of petitioner from the post of Sarpanch as per provisions of Section 40 of the Adhiniyam holding him guilty of misconduct in discharge of duties. The order passed by the Specified Officer removing the petitioner from the post of Sarpanch is in accordance with law and does not call for any interference. 6. I have heard learned counsel for the parties and perused the record of writ petition. 7. Undisputedly, the proceeding was started upon filing an election petition under Section 122 of the Adhiniyam, 1993. The validity of the order impugned has to be examined on the anvil of the facts of present case and the law governing the field of trial of election petition under the Adhiniyam 1993 and the Rules of 1995. 8. The procedure for trial of an election petition filed under Section 122 of the Adhiniyam, 1993 is governed under the Rules of 1995. Rule 11 of the Rules of 1995 is reproduced herein below for ready reference:- “11. Procedure before the specified officer and his powers. 8. The procedure for trial of an election petition filed under Section 122 of the Adhiniyam, 1993 is governed under the Rules of 1995. Rule 11 of the Rules of 1995 is reproduced herein below for ready reference:- “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 the 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. (2) 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. Discovery and inspection; b. Enforcing the attendance of witnesses, and requiring the deposit of their expenses; c. Compelling the production of document; d. Examination of witnesses on oath; e. 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.” 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 on issues agreed upon. 10. Order 14 of the CPC provides for settlement of issues and determination of suit on issues of law or 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. 11. Now coming back to the present case. Respondent No.1/ defeated candidate filed an election petition under Section 122 of the Adhiniyam seeking a declaration that election of petitioner as Sarpanch be declared void on the ground that he has furnished incorrect and false information in his nomination paper i.e. registration of criminal case and encroachment on government land. Election petition was registered on 2.3.2020 and notice was issued to respondents to election petition. During pendency of election petition, petitioner herein moved an application under Order 7 Rule 11 CPC seeking dismissal of election petition on the ground of non-compliance of Rule 3 (2) of the Rules, 1995. It mandates that election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Petitioner also filed written statement to election petition specifically denying all adverse averments made in election petition. Thereafter, the matter was fixed on several occasions for arguments on objection. Petitioner also filed written statement to election petition specifically denying all adverse averments made in election petition. Thereafter, the matter was fixed on several occasions for arguments on objection. Arguments on objection was heard on 06.01.2021 and thereafter on many dates it was fixed for orders on objection i.e. application under Order 7 Rule 11 CPC. The Specified Officer vide order dated 19.1.2022 called for the report from the Tahsildar with regard to nature of encroachment made by petitioner herein. The Tahsildar submitted report on 25.2.2022 and thereafter the Specified Officer passed the impugned order. The Election Tribunal erred in not deciding application under Order 7 Rule 11 CPC, and disposing of the entire proceeding on merits, that too removing Sarpanch under Section 40 of the Adhiniyam, 1993, which was not the subject matter for consideration. 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 denied by the other, and after giving opportunity to the parties to lead evidence, as provided under Order 14 of CPC. 13. In case at hand, respondent No.1 filed election petition challenging the election of petitioner on the ground that at the time of filing nomination paper petitioner has suppressed material information. Allegations in election petition were were specifically denied by petitioner by filing reply. Undisputedly, the Civil Procedure Code applies to election petition under Section 122 of the Adhiniyam, 1993 by virtue of Rule 11 of the Rules of 1995 and so the Specified Officer trying such election can act in exercise of powers of the Code including Order 14 Rule 1 CPC which provides for framing of issues when a material proposition of fact or law is affirmed by one party and denied by the other. This being the position, the Specified Officer was under obligation to frame issues on the facts, call upon the parties to adduce evidence in support of their respective case and thereafter to adjudicate election petition, going through evidence adduced by respective parties and affording opportunity of hearing to them. However, perusal of the impugned order would show that the Specified Officer even after specific denial of allegations by petitioner neither framed issues nor afforded the opportunities to the parties to lead evidence. Decision on the election petition without framing of issues and recording of evidence merely on the basis of report submitted by the Tahsildar was not proper. In the nature of proceeding with which the Specified Officer was dealing i.e. election petition, it ought not to call for report from the Tahsildar. In an election petition the burden is upon election petitioner to prove the grounds raised by producing oral and documentary evidence. Therefore, in the considered opinion of this Court, the Specified Officer has committed error in deciding the election petition without framing of issues and recording of evidence. Since the impugned order is apparently illegal and is in gross violation of the prescribed procedure under the Rules, 1995, the same is liable to be set aside. 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. 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 opportunity of hearing to the parties to lead evidence.” 15. 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 :-- "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. 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 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." 16. The impugned order passed by the Specified Officer suffers from another illegality. 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." 16. The impugned order passed by the Specified Officer suffers from another illegality. During pendency of election petition, petitioner submitted an application under Order 7 Rule 11 CPC seeking rejection of election petition for non-compliance of Rule 3 (2) of the Rules of 1995. Perusal of the proceedings drawn by the Specific Officer would show that the election petition was listed on many dates for disposal of said application of petitioner herein, arguments were heard, however, the order was not passed by the Specified Officer. Meanwhile, on 19.1.2022 the Specified Officer called for report from the revenue officer concerned in connection with allegation of encroachment on government land by petitioner, which was filed on 25.2.2022 and based on the report received, on 11.3.2022 election petition itself was decided finally. 17. Rule 8 of the Rules of 1995 envisages that an election petition can be dismissed for non-compliance of mandatory provisions of the Rules of 1995 i.e. Rules 3, 4 & 7. Thus, the Specified Officer is empowered under Rule 8 to reject an election petition summarily if comes to conclusion that it is filed without compliance of mandatory provisions of the Rules of 1995. When the petitioner herein has filed an application in the election petition itself raising specific preliminary objection that election petition is filed without compliance of Rule 3 (1) & Rule 3 (2) of the Rules of 1995, and under the scheme of the Rules of 1995, such kind of preliminary objection is required to be decided first before proceeding further in the matter, the Specified Officer was having no other option but to first decide that application of petitioner raising objection of preliminary nature. Non-exercise of such power by the Specified Officer is contrary to the very purpose of keeping such provision in the Rules of 1995. 18. Non-exercise of such power by the Specified Officer is contrary to the very purpose of keeping such provision in the Rules of 1995. 18. In case of Azhar Hussain vs. Rajiv Gandhi, reported in 1986 (Supp.) SCC 315, the Hon'ble Supreme Court has held thus:- “3.2 Since the Court has the power to act at the threshold, the powers must be exercised at the threshold itself in case the Court is satisfied that it is a fit case for the exercise of such power and that exercise of such power is warranted under the relevant provision of law.” 19. For the foregoing reasons, the writ petition is allowed. Impugned order is set aside and the matter is remitted back to the Specified Officer for deciding the election petition afresh in accordance with law i.e. after framing issues, granting opportunity to the parties to adduce evidence and thereafter to decide election petition on the strength of evidence available on record. However, before proceeding further with election petition in accordance with law, the Specified Officer shall first dispose of the application filed by petitioner under Order 7 Rule 11 of CPC in accordance with law. 20. Certified copy as per rules.