Chattisgarh High Court
Netram Kashyap vs State Of Chhattisgarh on 21 April, 2025
1
2025:CGHC:17849
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 1975 of 2025
1 - Netram Kashyap S/o Pran Nath Aged About 42 Years R/o Ward No.-12,
Chorbhatti, Tahsil - Pamgarh, District Janjgir-Champa (C.G.)
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through Its Secretary, Department Of Panchayat And
Rural Development, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nava Raipur,
District - Raipur (C.G.)
2 - The Collector District Janjgir-Champa (C.G.)
3 - Sub-Divisional Officer (R.) Pamgarh, District Janjgir-Champa (C.G.)
4 - Janki Prasad Kashyap S/o Keshav Prasad Aged About 70 Years R/o Ward No.-
12, Chorbhatti, Tahsil - Pamgarh, District Janjgir-Champa (C.G.)
5 - Lakshmi Prasad S/o Rajaram Aged About 40 Years R/o Ward No.-10, Chorbhatti,
Tahsil - Pamgarh, District Janjgir-Champa (C.G.)
6 - Naresh Kashyap S/o Baldev Prasad Aged About 35 Years R/o Ward No.-18,
Chorbhatti, Tahsil - Pamgarh, District Janjgir-Champa (C.G.)
7 - Puniram Kashyap S/o Chaitram Aged About 40 Years R/o Ward No.-11,
Chorbhatti, Tahsil - Pamgarh, District Janjgir-Champa (C.G.)
8 - Sanat Patel S/o Ramfal Patel Aged About 40 Years R/o Ward No.-17, Chorbhatti,
Tahsil - Pamgarh, District Janjgir-Champa (C.G.)
9 - Presiding Officer Raghuraj Singh Chandel, R/o Village - Taraud, Tahsil - Akaltara,
District Janjgir-Champa (C.G.)
10 - Returning Officer Shri Mahendra Lahre, Tahsildar, Pamgarh, District Janjgir-
Champa (C.G.)
... Respondent(s)
(Cause Title is taken from CIS System)
For Petitioner : Mr. Anish Tiwari, Advocate and Mr. Atul
Kumar Kesharwani, Advocate
For State : Ms. Upasana Mehta, Panel Lawyer
For Respondent No. 4 : Mr. Chandresh Shrivastava, Advocate
Digitally
signed
by
SHAYNA
KADRI
Hon'ble Mr. Justice Amitendra Kishore Prasad
Order on Board
21/04/2025
1. By way of this petition, the petitioner has prayed for following
reliefs:-
"10.1 The Hon'ble Court may kindly be
pleased to quash/set-aside impugned
order dt. 16.04.2025 (Annexure P-1)
passed by the Election Tribunal in
revenue case no.
202504061100019/122/2025 titled as
Janki Prasad Kashyap vs Netram
Kashyap & Ors., in the interest of
justice.
10.2. This Hon'ble Court may kindly be
pleased to grant any other writ/writs,
order/ orders, relief/ reliefs in favour of
the petitioner, which the Hon'ble Court
deemed fit & just in the facts and
circumstances of the case, including
awarding of the costs to the petitioner."
2. Facts of the case, in a nutshell, are that that petitioner is a duly
elected Sarpanch of Gram Panchayat Chorbhatti, Block Pamgarh,
District Janjgir-Champa (C.G.), and has challenged the impugned
order dated 16.04.2025 passed by the Sub-Divisional Officer
(Revenue), Pamgarh, District Janjgir-Champa (C.G.) Election
Tribunal whereby a direction has been issued for recounting of
votes in a mechanical and arbitrary manner without conclusion of
the election petition itself. The petitioner had secured 489 votes
as against 451 votes obtained by respondent No. 04 in the
election conducted on 23.02.2025. Pursuant to the clear majority,
the petitioner was declared as elected Sarpanch, and an election
certificate was issued on 25.02.2025. Subsequently, respondent
No. 04 has filed an election petition under Section 122 of the C.G.
Panchayat Raj Adhiniyam, 1993 alleging discrepancies in the
counting process, particularly at booth no. 79, without any formal
objection or demand for recount at the time of counting. On
16.04.2025 impugned order has been passed by learned Tribunal
directing for recounting of votes.
3. Learned counsel for the petitioner would submit that respondent
No. 3 has failed to frame issues and has also not given any
opportunity to lead evidence and to examine / cross - examine
the witnesses. It is further contention of learned counsel for the
petitioner that in the absence of any material evidence and without
framing issues and opportunity to lead evidence, the learned
Tribunal has passed the impugned order dated 16.04.2025
directing for recounting of votes, which is per se illegal, arbitrary,
and in gross violation of settled proposition of law laid down by the
Hon'ble Court. Hence, the present writ petition is being filed
seeking quashment of the said impugned order and to protect the
sanctity of the democratic electoral process. He relied upon the
decision of Hon'ble Supreme Court in case of Makhan Lal
Bangal vs. Manas Bhunia & Others, reported in 2001 (2) SCC
652. Further referred to decisions of this Court in case of Rama
vs. State of Chhattisgarh, reported in 2023 SCC OnLine Chh
2258 and in case of Smt. Sabyarani vs. State of Chhattisgarh
and Others, reported in 2019 SCC OnLine Chh 101.
4. Learned counsel appearing for the State as well as respondent
No. 4, submit that prima facie the competent authority finds that
recounting of the votes is required to be directed without framing
issues, hence, the impugned order has been passed which cannot
be said to be faulted.
5. I have heard the contentions put forth on either side and also
perused the documents annexed along with the writ petition.
6. It is necessary at this juncture to refer to Rule 11 of the
Chhattisgarh Panchayats (Election Petitions, Corrupt Practices
and Disqualification for Membership) Rules, 1995 (for short "the
Rules. 1995") provides for procedure before the specified officer
and his powers. It is prescribed that 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 Civil Procedure, 1908 (for
short "the CPC"), to the trial of suits. The proviso to sub-rule (1) of
Rule 11 of the Rules, 1995 provides that it shall only be necessary
for the specified officer to make a memorandum of the substance
of evidence of any witness examined by him. Rule 11 of the
Rules, 1995 reads is quoted 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 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 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
docu-ment;
(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
motu any person whose evidence,
appears to him to be material."
7. Order XIV 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.
8. In the case of Makhan Lal Bangal (Supra), the Hon'ble Supreme
Court has held as under : -
"19. 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 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 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."
9. In case of Sabyarani (Supra), this Court has held as under :-
"11. The procedure which has been laid down
in the aforesaid Rules would go to show that
in order to hold the election illegal, the
authority must follow certain procedure laid
down in the Rules. Meaning thereby, the
election could not be disturbed when the
person has been duly elected by democratic
process. Further the similar propositions have
been followed in case of Parvatia v. Padmini
& Others reported in 2005(2) C.G.L.J. 335
that Rule 11 & 12 has to be followed.
Consequently, in view of the aforesaid
propositions, in the opinion of this Court, the
order dated 19.12.2016 cannot be sustained.
Accordingly, it is set aside. The matter is
referred back to the Court of Collector,
Raigarh with a direction that the Collector
shall be obliged to frame the issues on the
disputed question of fact and thereafter shall
follow the Rules provided under Rule 11 & 12
of the Chhattisgarh Panchayats (Election
Petitions, Corrupt Practices & Disqualification
for Membership) Rules, 1995."
10. Very recently, in case of Rama (Supra), Single Bench of this Court
has held as under : -
"13. The said view of this High Court has
been followed in series of decisions rendered
by this court which includes the one which
has been cited by the petitioner in the case of
Gouri Baghel (Supra) decided on 17.11.2016.
Even the judgment cited by the State
Counsel also would clearly indicate that the
law while deciding an Election Petition is to
be treated like that of the Civil Trial and
framing of issues is an important aspect in a
Civil Trial which cannot be ignored."
11. In the case at hand, in the absence of any material evidence and
without framing issues and opportunity to lead evidence, the
learned Tribunal has passed the impugned order dated
16.04.2025 directing for recounting of votes, which is per se
illegal, arbitrary, and in gross violation of settled proposition of law.
Thus, framing of issues and examination of witnesses is
necessary before passing the order, the impugned order, it
appears, has been passed without complying with the substantial
procedure as provided under the provisions of law.
12. In light of the aforementioned decisions and considering the
submissions made hereinabove, as the principle of law is well
settled that no election petition can be decided finally without
framing proper issues and examining witnesses, if produced by
the parties, the impugned order dated 16.04.2025 (Annexure P/1)
is quashed. The matter is remitted back to the Tribunal to restore
in its original file and decide the case in accordance with law. In
view of the foregoing, it is expedient and proper to direct the
election tribunal to consider and decide the case afresh, in
accordance with law and on its own merits, within a period of 45
days from the date of production of this order.
13. With this observation and direction the writ petition is allowed.
No order as to costs.
Sd/-
(Amitendra Kishore Prasad)
Shayna Judge
