Smt. Subodh Kanti vs Distt. Judge Unnao And 6 Others
2023 Latest Caselaw 6017 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

										   	 A.F.R.
 
Court No. - 8
 
Case :- WRIT - C No. - 1350 of 2023
 
Petitioner :- Smt. Subodh Kanti
 
Respondent :- Distt. Judge Unnao And 6 Others
 
Counsel for Petitioner :- Ashish Kumar Rastogi
 
Counsel for Respondent :- Purusottam Awasthi,Ashish Kumar
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioner and Shri Purusottam Awasthi, learned counsel for the respondent no. 2.

2. The instant petition has been filed praying for the following main relief:

"(i) Issue writ, order or direction in nature of certiorari, this Hon'ble Court may graciously be pleased to set aside / quash the impugned order dated 05.01.2023 passed by the opposite party no. 1 in revision no. 15/2022 (Murali Prasad Verma vs Smt Subodh Kanti and others) as contained in annexure no. 1 to this petition."

3. The case set forth by the petitioner is that the petitioner was declared elected as Gram Pradhan of Village Fatehur, Block Pargana and Tehsil Safipur, District Unnao in the elections of the year 2021. The respondent no. 2 was one of the candidates in the said election. The respondent no. 2 filed an election petition before the prescribed authority under provisions of Section 12C of the U.P. Panchayat Raj Act, 1947 (hereinafter referred to as the Act, 1947) challenging the election of the petitioner. The election petition was dismissed vide the order dated 23.05.2022, a copy of which is annexure 9 to the petition. The respondent no. 2, being aggrieved, filed a revision before the learned District Judge, Unnao vide Civil Revision No. 15 of 2022 in re: Murali Prasad Verma vs Subodh Kanti and others and learned revisional court vide the order impugned dated 05.01.2023, a copy of which is annexure 1 to the petition, set aside the order passed by the prescribed authority and remanded back the matter to the prescribed authority for deciding afresh in the light of the given directions.

4. The ground which prevailed on the revisional court in setting aside the order of the prescribed authority was that prior to passing of the order dated 23.05.2022 by the prescribed authority, no issues were framed. In this regard learned revisional Court has placed reliance on the judgement of Hon'ble the Apex Court in the case of Makhan Lal Bangal vs Manas Bhunia and others reported in (2001) 2 SCC 652.

5. Raising a challenge to the order impugned by which the revisional court has remanded the matter to prescribed authority for deciding afresh on the ground of non framing of issues, the argument is that framing of issues is not a sine qua non to an election petition being decided in as much as the provisions of Civil Procedure Code are not strictly applicable on an election petition filed under the provisions of the Act, 1947. In this regard reliance has been placed on judgements of Hon'ble the Apex Court in the case of Kailas vs Nanhku and others reported in (2005) 4 SCC 480, Kalyan Singh Chouhan vs C. P. Joshi reported in AIR 2011 Supreme Court 1127, Samar Singh vs Kedar Nath @ K. N. Singh and others reported in 1987 (supp) SCC 663, Tarlok Singh vs Municipal Corporation of Amritsar and another reported in (1986) 4 SCC 27 and K Venkateswara Rao and anothers vs Bekkam Narasimha Reddi and others reported in (1969) 1 SCR 679.

6. Placing reliance on the aforesaid judgments the argument is that in all the aforesaid cases Hon'ble the Apex Court has held that provisions of the C.P.C. are not strictly applicable in an election petition and consequently the order of the revisional court whereby the matter has been remanded to the prescribed authority simply on the ground that no issues were framed prior to the prescribed authority dismissing the election petition calls for interference by this Court.

7. On the other hand, Shri Purusottam Awasthi, learned counsel appearing for the respondent no. 2 contends that the provisions of the Act 1947 read with the rules which have been framed for deciding of the election petition namely the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994 (hereinafter referred to as the Rules 1994) categorically provide the manner in which hearing of an election petition is to take place. He contends that this aspect of the matter has been considered by this Court in the case of Kulsum vs State of U.P. and others reported in 2018 (8) ADJ 182 wherein this Court after placing reliance on the Supreme Court judgement in the case of Makhan Lal Bangal (supra) as well as Uttamrao Shivdas Jankar vs Ranjitsinh Vijaysinh Mohite Patil reported in (2009) 13 SCC 131 has held that the prescribed authority has to first frame issues prior to deciding of an election petition or prior to directing for recounting as was the case involved in the case of Kulsum (supra).

8. Placing reliance on the judgement of Hon'ble the Apex Court in the case of Makhan Lal Bangal (supra) the argument of Shri Purusottam Awasthi, learned counsel for the respondent no. 2 is that the Apex Court has categorically held that an election petition is like a civil trial and the stage of framing of issues is an important one in as much as on that day the scope of trial of the case is determined by laying a path on which the trial shall proceed excluding divergence and departure. The Apex Court has also held that the issues shall be framed and recorded on which the decision of the case shall depend.

9. Placing reliance on the aforesaid observations of Hon'ble the Apex Court in the case of Makhan Lal Bangal (supra) the argument of Shri Purusottam Awasthi, learned counsel for the respondent no. 2 is that unless and until the issues were framed by the prescribed authority on which the election petition filed by the respondent no. 2 was to be decided, the summary and cursory dismissal of the election petition filed by the respondent no. 2 could not be said to be in accordance with law and as such the learned revisional court has not erred in law in remitting back the matter to the prescribed authority for framing of issues and for deciding the election petition.

10. Heard learned counsel for the parties and perused the record.

11. From a perusal of record it is apparent that upon the petitioner being declared elected as the Gram Pradhan of the village in question, an election petition was filed by the respondent no. 2 challenging the election of the petitioner. The prescribed authority, vide the order dated 23.05.2022 without admittedly framing issues, dismissed the election petition. The respondent no. 2, being aggrieved, filed a revision and the learned revisional court, vide order impugned dated 05.01.2023, after considering the law laid down by the Apex Court in the case of Makhan Lal Bangal (supra) and holding that as no issues have been framed by the prescribed authority prior to dismissing the election petition, has remitted back the matter to the prescribed authority for passing of a fresh order.

12. The issue for consideration before the Court is that as to whether framing of issues in an election petition is a sine qua non prior to deciding an election petition?

13. The said issue is no longer res-integra having been decided by a three judges bench of Hon'ble the Apex Court in the case of Makhan Lal Bangal (supra) where it has been held 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 pinpoints 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 XIV 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 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 belittle 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."

(emphasis by the Court)

14. Likewise Hon'ble the Apex Court in the case of Uttamrao Shivdas Jankar (supra) has held as under:

"48. In an election petition, the High Court acts as a Court of original jurisdiction and the election petition is a civil trial and the jurisdiction in such a trial, stricto sensu cannot be said to be appellate in nature. Clearly, the High Court acted illegally in treating its power only as an appellate authority and not as an original authority for it only proceeded to try and determine as to whether or not the decision making process is legal. That approach of the High court in our considered opinion was illegal and unjustified.

49. The High court was duty bound to treat the matter on merits by framing issues and thereafter calling for production of evidence in support of their respective cases. The High court should have examined the veracity of the rival claims based on the evidence produced by the parties and should have tested the correctness of the affidavits. The opinion of the hand writing expert in that regard would have been sufficient and on the basis of the same it could be possible for the High court to decide the entire lis between the parties. The High Court despite being the Court of original jurisdiction acted as a court of appellate jurisdiction and dismissed the petition without allowing the parties to produce evidence in support of their contention."

(emphasis by the Court)

15. Considering the judgments of Hon'ble the Apex Court in the cases of Makhan Lal Bangal (supra) and K Venkateswara Rao (supra) this Court in the case of Kulsum (supra) has held as under:

"Therefore, in view of the law laid down by the Supreme Court in the case of Uttamrao Shivdas Jankar (supra) and Makhan Lal Bangal (supra), in my opinion, the order of the prescribed authority directing the recounting of votes without first framing of issues is wholly illegal and unsustainable in law and is accordingly, set aside."

(emphasis by the Court)

16. Thus from a perusal of the aforesaid judgments it emerges that while trying an election petition, the election tribunal is required to frame issues prior to deciding the election petition.

17. The Apex Court in the judgement of Kailash (supra), over which much reliance has been placed by learned counsel for the petitioner has held, while considering the provisions of Section 87(1) of the Representation of People Act, 1950 that the applicability of the procedure provided for the trial of elections petition is not attracted with all its rigidities and technicalities and the rules of procedure contained in C.P.C. apply to the trial of election petitions under the Act 1947 with flexibility and only as guidelines.

18. From a perusal of the provisions of the Act 1947 more particularly Section 12-C(5) it comes out that sub-section (5) of Section 12-C of the Act 1947 has provided that without prejudice to the generality of the powers to be prescribed under sub-section (4) of Section 12-C of the Act 1947, the rules may provide for summary hearing and disposal of an application under sub-section (1) of Section 12-C of the Act, 1947. Subsequent thereto, the Rules 1994 have been framed which give the procedure for hearing of the election petition. Nowhere do the rules or Act prohibit the election tribunal from framing issues prior to deciding the election petition which has been filed before it.

19. Hon'ble the Apex Court in the case of Kalyan Singh Chouhan (supra) over which reliance has been placed by the petitioner, after considering the earlier judgement of Kailash (supra), has held as under:

"24. Therefore, in view of the above, it is evident that the party to the election petition must plead the material fact and substantiate its averment by adducing sufficient evidence. The court cannot travel beyond the pleadings and the issue cannot be framed unless there are pleadings to raise the controversy on a particular fact or law. It is, therefore, not permissible for the court to allow the party to lead evidence which is not in the line of the pleadings. Even if the evidence is led that is just to be ignored as the same cannot be taken into consideration."

20. Thus, in effect the judgement of Kalyan Singh Chouhan (supra) supports the order passed by the revisional court instead of supporting the argument of learned counsel for the petitioner.

21. The case of Samar Singh (supra) was a case in which the Apex Court has held that where a complaint or an election petition does not disclose any cause of action it does not stand to reason as to why the defendants of the respondents should incur cost in wasting public time producing evidence when the proceedings can be disposed of on preliminary objections.

22. It is not the case of the petitioner, from the pleadings on record, that there were certain preliminary objections that were raised before the prescribed authority on which basis the election petition should have been dismissed summarily. Moreover, the judgement of Samar Singh (supra) does not pertain to an election petition and as such does not have relevance to the facts of the instant case.

23. The judgements of Hon'ble the Apex Court in the case of K Venkateswara Rao (supra) and Tarlok Singh (supra) are judgements of two Hon'ble judges and obviously would have to give way to the three judges judgement of Makhan Lal Bangal (supra).

24. Keeping in view the aforesaid discussion as well as the judgments of Hon'ble the Apex Court in the case of Makhan Lal Bangal (supra) and Uttamrao Shivdas Jankar (supra) and the judgement of this Court in the case of Kulsum (supra), it is apparent that in an election petition filed under Section 12C of the Act 1947 the issues are to be framed by the prescribed authority unless the prescribed authority proceeds to dismiss the election petition on a preliminary objection raised on behalf of the respondents.

25. Keeping in view the aforesaid discussion, no illegality and infirmity is found with the order impugned, as such no interference is required in the order impugned. Accordingly, the writ petition is disposed of directing the prescribed authority to proceed to decide the matter in terms of the directions issued by the revisional court.

Order Date :- 24.2.2023

J.K. Dinkar