Chattisgarh High Court
Chitawar Jaiswal vs Rupesh Singh Thakur on 21 March, 2022
-1-
AFR
HIGH COURT of CHHATTISGARH, BILASPUR
Order Reserved on 09.03.2022
Order Delivered on 21.03.2022
WP227 No. 170 of 2021
Chitawar Jaiswal S/o Om Jaiswal, Aged About 44 Years (40 Years
Wrongly Mentioned In The Impugned Order), President, Municipal
Council Balodabazar, Collectorate Road, Near Warehouse,
Balodabazar, Taluka, Balodabazar, Village - Balodabazar (City), District -
Balodabazar, Bhathapara, Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
---- Petitioner
Versus
1. Rupesh Singh Thakur, S/o Chintu Singh Thakur, Aged About 40 Years
R/o Panchshil Nagar, Balodabazar, Taluka - Balodabazar, Village -
Balodabazar (City), District - Balodabazar, Bhathapara, Chhattisgarh.,
District : Balodabazar-Bhathapara, Chhattisgarh
2. Sanket Shukla S/o Lalit Kumar Shukla, Aged About 42 Years Parshad
Ward No. 03, Balodabazar, Bhathapara Road, New District Court,
Balodabazar, Taluka - Balodabazar, Village - Balodabazar (City), District
- Balodabazar, Bhathapara, Chhattisgarh.
3. Prakash Sharma S/o Premlal Sharma, Aged About 45 Years Parshad
Ward No. 05, Balodabazar, Civil Line, District - Balodabazar,
Bhathapara, Chhattisgarh.
4. Surendra, S/o Lt. Mohan Lal Jaiswal, Aged About 40 Years Vaishnav
Colony, Balodabazar, District - Balodabazar - Bhatapara, Chhattisgarh.,
District : Balodabazar-Bhathapara, Chhattisgarh
5. Govind Patre S/o Lakhan Lal Patre, Aged About 30 Years Parshad Ward
No. 01, Balodabazar, Panchshil Nagar, Balodabazar, District -
Balodabazar - Bhatapara, Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
6. Amitesh Netam S/o Kishan Lal Netam, Aged About 26 Years Parshad
Ward No. 02, Balodabazar, Jail Colony, Balodabazar, District -
Balodabazar - Bhatapara, Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
7. Gautam Thethvar S/o Neelkanth Thethvar, Aged About 38 Years
Parshad Ward No. 04, Balodabazar, Indra Colony, Balodabazar, District
-2-
- Balodabazar - Bhatapara, Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
8. Reeta Kesharwani W/o Ashok Kesharwani, Aged About 40 Years Ward
No. 06, Balodabazar, Gopal Mandir Gali, Sadar Road, Balodabazar,
District - Balodabazar - Bhatapara, Chhattisgarh.
9. Anjali Bharadwaj W/o Kamal Bharadwaj, Aged About 27 Years Ward No.
7, Balodabazar, Near Takiz, Latuva Road, Balodabazar, District -
Balodabazar - Bhatapara, Chhattisgarh.
10.Satish Patel S/o Late Shivnandan Patel, Aged About 40 Years Ward No.
08, Balodabazar, Near Purani Basti Mauli Mandir, Balodabazar, District -
Balodabazar - Bhatapara, Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
11. Manjeet Kaur W/o Inder Singh Saluja, Aged About 55 Years Ward No.
09, Balodabazar, Purana Bus Stand, Balodabazar, District -
Balodabazar - Bhatapara, Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
12.Manoj Kant Puraina S/o Atibal Puraina, Aged About 40 Years Ward No.
10, Balodabazar, Near Civil Line, Sashthi Mandir, Balodabazar, District -
Balodabazar - Bhatapara, Chhattisgarh.
13.Kamal Tandan S/o Madhoram Tandan, Aged About 40 Years Ward No.
11, Balodabazar, Dashrma Road, Balodabazar, District - Balodabazar -
Bhatapara, Chhattisgarh.
14.Savita W/o Pradeep Sahu, Aged About 35 Years Ward No. 13,
Balodabazar, Sadar Road, Balodabazar, District - Balodabazar -
Bhatapara, Chhattisgarh.
15.Priyanka Soni W/o Nitish Soni, Ward No.14 Gandhi Chowk
Balodabazar, Taluka - Balodabazar, Village - Balodabazar (City), District
- Balodabazar - Bhatapara, Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
16.Digeshwari, W/o Ravindra Namdev Aged About 35 Years Ward No. 15,
Nayapara Durg Chowk Balodabazar, Taluka - Balodabazar, Village -
Balodabazar (City), District - Balodabazar - Bhatapara, Chhattisgarh.,
District : Balodabazar-Bhathapara, Chhattisgarh
17.Pankaj Maraiya W/o Prakash Maraiya, Aged About 35 Years Ward No.
16, Sweeper Colony Chowk, Balodabazar, Taluka - Balodabazar, Village
- Balodabazar (City), District - Balodabazar - Bhatapara, Chhattisgarh.
18.Jitendra Mahale S/o Shriram Mahale, Aged About 23 Years Parshad
Ward No. 17, Behind Janpad Balodabazar, Taluka - Balodabazar,
Village - Balodabazar (City), District - Balodabazar - Bhatapara,
Chhattisgarh., District : Balodabazar-Bhathapara, Chhattisgarh
-3-
19.Kranti Sahu W/o Digamber Sahu, Aged About 40 Years Ward No. 18,
Sanjay Colony, Balodabazar, Taluka - Balodabazar, Village -
Balodabazar (City), District - Balodabazar - Bhatapara, Chhattisgarh.,
District : Balodabazar-Bhathapara, Chhattisgarh
20.Rohit Sahu S/o It. Shyamji Sahu, Aged About 35 Years Parshad Ward
No. 19, Laxmi Bai Ward, Balodabazar, Taluka - Balodabazar, Village -
Balodabazar (City), District - Balodabazar - Bhatapara, Chhattisgarh.,
District : Balodabazar-Bhathapara, Chhattisgarh
21.Returning Officer, Nagar Palika Parishad, Balodabazar, District -
Balodabazar - Bhatapara, Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
22.Election Officer / Collector, Balodabazar, District - Balodabazar -
Bhatapara, Chhattisgarh., District : Balodabazar-Bhathapara,
Chhattisgarh
23.State Election Commissioner, State Of Chhattisgarh, Raipur,
Chhattisgarh., District : Raipur, Chhattisgarh
24.Chief Municipal Officer, Nagar Palika Parishad, Balodabazar, District -
Balodabazar - Bhatapara, Chhattisgarh., District : Balodabazar-
Bhathapara, Chhattisgarh
---- Respondents
For Petitioner : Shri Kishore Bhaduri, Senior Advocate
with Shri Pawan Kesharwani, Advocate
For Respondent No.1 : Shri Prakash Tiwari, Advocate
For Respondent No.23 : Shri Abhyuday Singh, Advocate
S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
CAV Order
1. Petitioner by this petition has challenged the order dated
17.02.2021 passed by learned Election Tribunal (District Judge)
Balodabazar- Bhatapara in Election Petition No. 03 of 2020
whereby application filed by the petitioner under Order 7 Rule 11(a)
of CPC came to be dismissed.
2. Facts
relevant for disposal of this petition are that the State
Election Commission issued Notification for election of Councillors
in 22 Wards of Balodabazar Municipality. Petitioner and
respondents No. 1 to 20 were declared elected as Councillors by
the Election Officer-cum-Collector, District Balodabazar
-Bhatapara. All the Councillors after taking oath participated in
election of the President of the Municipality. Petitioner and
respondent No.1 were the contesting Councillors for the post of
President. After conclusion of election proceedings, petitioner/non-
applicant No.1 was declared elected by one vote. Respondent
No.1/applicant filed election petition under Section 20 of the
Chhattisgarh Municipalities Act, 1961 (for short "Act of 1961")
before the District Judge Balodabazar on the grounds mentioned
therein. Election Tribunal issued notice for appearance of non-
applicants therein. Petitioner/non-applicant No.1 after appearance
submitted application under Order 7 Rule 11 (a) of CPC for
dismissal of election petition. The application was replied by the
election petitioner. Learned Election Tribunal, upon considering the
pleadings of both sides of Order 7 Rule 11 (a) of CPC, submission
of counsel for respective parties, dismissed the application by
impugned order.
3. Learned counsel for the petitioner/non-applicant No.1 would submit
that the election petition is filed raising the ground of corrupt
practices. In the Election Petition, there is no specific pleading of
material particulars nor supporting documents is filed along with
Election Petition. In absence of the material particulars/facts, the
Election Petition was not maintainable. The application under
Order 7 has been filed under the specific clause i.e. Rule 11 (a) of
CPC. Election Tribunal cum District Judge has not considered the
pleadings made in the application for rejection of the Election
Petition, contents of the Election Petition and provision of law in
proper perspective and erred in rejecting application filed by the
petitioner. He contended that the election petitioner is required to
disclose all material facts in the election petition on which election
petitioner relies to establish the existence of cause of action. In
absence of material facts, the Election Petition is liable to be
rejected. He also submits that in sub-Rule (5) of Rule 39 of
Conduct of Elections Rules, 1961 (for short " Rules of 1961"), it is
very specifically provided that if an elector to whom a ballot paper
has been issued, refuses, to observe the procedure, even after
warning given by the Presiding Officer, ballot paper issued to such
elector be taken back whether he recorded his vote or not. No such
pleading is made in this regard. In Election Petition, it is mandatory
duty upon the election petitioner to disclose all the material facts,
which is lacking, hence, writ petition may be allowed, impugned
order be set aside and consequently, Election Petition be rejected.
In support of his contention, he places reliance upon order passed
by Madhya Pradesh High Court in Election Petition No.14 of 2019
between Radheshyam Darsheema VS. Kunwar Vijay Shah & Ors .
decided on 22.07.2020.
4. Learned counsel for respondent No.1 vehemently opposes the
submission of learned counsel for the petitioner. He submits that
for filing of Election Petition under the Act of 1961, limitation
prescribed is only 30 days. Respondent No.1 collected the
documents which were provided by the State Authority and
engaged in the election proceedings. Election petition was filed
along with the documents supplied to him, pleading all the material
facts on which Election Petition is based. He contended that
detailed pleading of all the material facts disclosing cause of action
is pleaded in paragraphs 6, 7 & 8 of the Election Petition
(Annexure P-2). Section 39 of the Rules of 1961 provides for
maintenance of secrecy of voting. Sub-rule (5)of Rule 39 of the
Rules of 1961 provides for action to be taken by Presiding Officer if
provision under Rule 39 (1) & (2) is not followed by any elector. In
paragraphs 6 to 8, detailed pleadings disclosing all material facts
upon which the Election Petition is filed are pleaded, disclosing
clearly the name of elector who violated Rule 39 of the Rules of
1961. Application under Order 7 Rule 11 (a) of CPC is filed, relates
to a petition not disclosing the cause of action. Learned Election
Tribunal have considered the grounds raised by the election
petitioner, elaborately discussing the relevant provision and have
rightly dismissed the application under Order 7 Rule 11 (a) of CPC.
He contended that petition is devoid of any merit. In support of his
contention, he places reliance upon judgment passed by Hon'ble
Supreme Court in Kuldeep Singh Pathania Vs. Bikram Singh
Jaryal (2017) 5 SCC 345.
5. I have heard learned counsel for the parties.
6. Perusal of Election Petition particularly paragraphs 6 to 8 would
reflect that respondent No.1/election petitioner has pleaded that
non-applicant No.21 in Election Petition has publically shown his
vote to the non-applicant No.1 to 20. Election petitioner raised
objection before the Presiding Officer who took cognizance by
declaring the vote to be invalid but later on have again declared it
to be valid vote. Written objection was also filed by the election
petitioner and non-applicant No.1 but election proceedings
continued. Invalid vote has been declared to be a valid vote without
deciding the objection overlooking the provision of Section 22 (d)
(ii) of the Act of 1961.
7. Before proceeding further, I find it appropriate to extract relevant
provision applicable to the facts of the case. Section 20 of the Act
of 1961 talks about the filing of Election Petition. Section 20 (3) (i)
provides limitation of 30 days for filing of Election Petition from the
date of result of such election. Section 22 provides for grounds for
declaring election or (nomination) to be void. Relevant provision of
Section 22 of the Act of 1961 is extracted as below :-
"22. Grounds for declaring election or
[nomination-] to be void - (1) Subject to the
provisions of sub-section (2) if the Judge is of the
opinion -
(a) x x x
(b) x x x
(c) x x x
(d) that the result of the election or
[nomination], in so far as it concerns a
returned candidate, has been materially
affected-
(i) x x x
(ii) by the improper acceptance or
refusal of any vote or reception of any
vote which is void.
8. Section 51 of the Nagarpalika Nirvachan Niyam, 1994 reads as
under :-
"51. Voting Procedure (1) A voter, on receiving
the ballot paper shall forthwith proceed to the
voting compartment, there, make a mark on the
ballot paper with the instrument supplied for the
purpose on or near the symbol of the candidate
for whom the intends to vote: fold the ballot
paper so as to conceal his vote: insert the folded
ballot paper into the ballot box and quit the
polling station.
2) No voter shall remain in polling station longer
than what is reasonably necessary for casting
his vote."
9. Rule 39 (1) and 39 (5) of the Rules of 1961 reads as under:-
"[39. Maintenance of secrecy of voting by
electors within polling station and voting
procedure.--(1) Every elector to whom a ballot
paper has been issued under rule 38 or under
any other provision of these rules, shall maintain
secrecy of voting within the polling station and
for that purpose observe the voting procedure
hereinafter laid down.
(2) x x x
(3) x x x
(4) x x x
(5) If an elector to whom a ballot paper has been
issued, refuses, after warning given by the
presiding officer, to observe the procedure as
laid down in sub-rule (2), the ballot paper issued
to him shall, whether he has recorded his vote
thereon or not, be taken back from him by the
presiding officer or a polling officer under the
direction of the presiding officer.
10.The petitioner has filed the application under Order 7 Rule 11 (a) of
CPC that the Election Petition does not disclose the cause of
action. In para-7 of the pleading of the application filed by the
petitioner under Order 7 Rule 11 (a) of CPC, it is pleaded that no
document is placed on record for any action as stated to have
been taken in para-6 by the Presiding Officer for conclusive
proof/evidence.
11. Perusal of contents of Election Petition would show that the
election petitioner has pleaded all the necessary material facts and
grounds on which election petition is filed. In the Election Petition
what is required to be proved is all the material facts on which
election petitioner relying to establish existence of cause of action.
It is not that along with the Election Petition, conclusive evidence is
also to be placed on record. Proving the pleading by leading
evidence is a different stage of the Election Petition. The case law
relied upon by learned counsel for the petitioner is on different
facts. There the Election Petition was filed on corrupt practices.
High Court of Madhya Pradesh considering the precedent of
Hon'ble the Supreme Court have allowed the application under
Order 7 Rule 11 of CPC observing that on the date on which the
allegation/facts of corrupt practices was pleaded, the returned
candidate was not the contesting candidate as he submitted his
nomination paper on the date later to the facts pleaded in the
Election Petition. Hon'ble Supreme Court in case of Virender Nath
Gautam Vs. Satpal Singh & Ors. reported in (2007) 3 SCC 617
while discussing the expression material facts has held as under:-
"31. The expression "material facts" has
neither been defined in the Act nor in the
Code. According to the dictionary meaning,
"material" means "fundamental", "vital",
"basic", "cardinal", "central", "crucial",
"decisive", "essential", "pivotal",
"indispensable", "elementary" or "primary".
[Burton's Legal Thesaurus, (3rd Edn.); p.349].
The phrase "material facts", therefore, may
be said to be those facts upon which a party
relies for his claim or defence. In other
words, "material facts" are facts upon which
the plaintiff's cause of action or the
defendant's defence depends. What
particulars could be said to be "material
facts" would depend upon the facts of each
case and no rule of universal application can
be laid down. It is, however, absolutely
essential that all basic and primary facts
which must be proved at the trial by the party
to establish the existence of a cause of
action or defence are material facts and must
be stated in the pleading by the party."
12.In the aforementioned ruling, Hon'ble Supreme Court has held that
all basic and primary facts must be proved at the trial by the party
to establish the existence of a cause of action or defence.
13.In the aforementioned ruling, Hon'ble Supreme court has further
observed that pleading of primary/material facts and proof of
material facts are two different stages in trial. Hon'ble Supreme
Court in case of Harkirat Singh Vs. Amrinder Singh (2005) 13
SCC 511 dealing with the issue of whether merits of the case can
be considered at the stage of considering the ground of
maintainability of petition held thus :-
"82. As we have already observed earlier, in
the present case, 'material facts' of corrupt
practice said to have been adopted by the
respondent had been set out in the petition
with full particulars. It has been expressly
stated as to how Mr. Chahal who was a
Gazetted Officer of Class I in the Government
of Punjab assisted the respondent by doing
several acts, as to complaints made against
him by authorities and taking of disciplinary
action. It has also been stated as to how a
Police Officer, Mr. Mehra, who was holding
the post of Superintendent of Police helped
the respondent by organizing a meeting and
by distributing posters. It was also alleged
that correct and proper accounts of election
expenses have not been maintained by the
respondent. Though at the time of hearing of
the appeal, the allegation as to projecting
himself as 'Maharaja of Patiala' by the
respondent had not been pressed by the
learned counsel for the appellant, full
particulars had been set out in the election
petition in respect of other allegations. The
High Court, in our opinion, was wholly
unjustified in entering into the correctness or
otherwise of facts stated and allegations
made in the election petition and in rejecting
the petition holding that it did not state
material facts and thus did not disclose a
cause of action. The High Court, in our
considered view, stepped into prohibited area
of appreciating the evidence and by entering
into merits of the case which would be
permissible only at the stage of trial of the
election petition and not at the stage of
consideration whether the election petition
was maintainable."
14.In view of the aforementioned dictum of Hon'ble Supreme Court
and considering the pleading made by the election petitioner
particularly in para-6,7,8 & 9, I do not find any illegality of infirmity
in the order passed by learned Election Tribunal/District Judge.
The election petitioner has pleaded the material facts disclosing
cause of action for filing Election Petition. Facts are to be proved
by producing evidence at the stage of trial. The submission of
learned counsel for the petitioner that there is no cause of action
because no document is submitted with Election Petition is not
sustainable and is repelled.
15.In view of aforementioned discussion, I do not find any merit in the
writ petition which is liable to be and is accordingly dismissed.
Sd/-/-
(Parth Prateem Sahu)
Judge
Praveen
