Smt. Bhagvati Bai vs The State Of Madhya Pradesh
2023 Latest Caselaw 1700 MP

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                          IN    THE     HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                                  HON'BLE SHRI JUSTICE MANINDER S. BHATTI
                                           ON THE 31 st OF JANUARY, 2023
                                          WRIT PETITION No. 17856 of 2022

                         BETWEEN:-
                         SMT. BHAGVATI BAI W/O SHRI TEJRAM JAT, AGED
                         ABOUT 59 YEARS, OCCUPATION: SARPANCH GRAM
                         PANCHAYAT GULLAS VILLAGE GULLAS TEHSIL
                         TIMAMI DISTRICT- HARDA, M.P. (MADHYA PRADESH)

                                                                            .....PETITIONER
                         (BY SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI ESHAAN DATT
                         - ADVOCATE)

                         AND
                         1.    THE STATE OF MADHYA PRADESH THROUGH
                               THE SECRRETARY DEPARTMENT OF PANCHAYAT
                               AND RURAL DEVELOPMENT BHOPAL BHOPAL,
                               M.P. (MADHYA PRADESH)

                         2.    THE     DISTRICT     MAGISTRATE/COLLECTOR
                               H A R D A DISTRICT   HARDA M.P. (MADHYA
                               PRADESH)

                         3.    SUB   DIVISIONAL  OFFICER     (REVENUE)
                               COMPETENT AUTHORITY DISTRICT HARDA M.P.
                               (MADHYA PRADESH)

                         4.    RETURNING   OFFICER (PAN CHAYAT) TEHSIL
                               TIMARNI DISTRICT HARDA M.P. (MADHYA
                               PRADESH)

                         5.    SMT. KIRAN JAT W/O SHRI GYANESH JAT R/O
                               VILLAGE GULLAS TEHSIL TIMARNI DISTRICT
                               HARDA M.P. (MADHYA PRADESH)

                         6.    SMT. LEELA BAI W/O SHRI MUKESH CHALOTRE
                               R/O VILLAGE GULLAS TEHSIL TIMARNI
                               DISTRICT HARDA M.P. (MADHYA PRADESH)

                         7.    SMT. MAMTA BAI W/O SHRI RAJESH JAT R/O
Signature Not Verified
                               VILLAGE GULLAS TEHSIL TIMARNI DISTRICT
Signed by: MANOJ NAIR
Signing time: 2/3/2023
3:02:30 PM
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                               HARDA M.P. (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                         (BY SHRI SANJEEV KUMAR SINGH - PANEL LAWYER )
                         (SHRI B.K. SHUKLA - ADVOCATE FOR THE RESPONDENT NO.5)

                               This petition coming on for admission this day, th e court passed the
                         following:
                                                             ORDER

The challenge in this petition is to the order dated 26.07.2022 (Annexure- P/6) passed by the Sub Divisional Officer-cum-Presiding Authority Village Gullas, Tehsil Timarni District Harda.

It is contended by the Senior counsel for the petitioner that the election of

the present petitioner against the post of Sarpanch Gram Panchayat Gullas Tehsil Tirmani District Harda was assailed by respondent no.5 by filing an election petition in terms of provision of Section 122 of the M.P. Panchayatraj Evam Gram Swaraj Adhiniyam, 1993. The said election petition was preferred on 20.07.2022 and within a period of 5 days only, the election petition was decided and recount of votes was ordered. Upon recounting of votes, the respondent no.5 was elected as Sarpanch Gram Panchayat Gullas Tehsil Tirmani District Harda.

It is contended by the counsel for the petitioner that there is a flagrant violation of the provisions of the Nirwachan Niyam framed under the provisions of Adhiniyam of 1993. Neither the issues were framed nor the parties were extended opportunity to adduce evidence and also the objection regarding the maintainability of the petition was not considered, therefore, the order dated 26.07.2022 (Annexure-P/6) is unsustainable.

Learned counsel for the petitioner has placed reliance on the decision passed by this Court in the cases of Uday Singh vs. Himmat Singh and Ors. Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

[1991 (1) JLJ 200] and the judgement passed by the Apex Court in the case of Makhan Lal Bangal vs Manas Bhunia And Ors [(2001) 2 SCC 652].

Per contra, learned counsel for respondents submits that the order impugned does not require interference inasmuch as, the Authority while appreciating the record have rightly issued recounting of votes. Even the counsel for the respondent no.5 does not dispute that neither the issues were framed nor evidence was adduced by the parties.

Heard rival submissions and perused the record. It is trite that for deciding an election petition, the framing of the issue is sin quo non if the parties are at loggerhead and disputing each other claim. The opportunity to adduce evidence is also necessary after framing of issues.

This Court in the case of Uday Singh (supra) and has held as under:-

16. The election petitioner has to first specifically aver in the petition grounds and then prove it by leading evidence to justify the prayer for recount. Recount can be directed by the Election Tribunal only on a satisfaction reached on the basis of evidence that such recount is necessary.

The Apex Court in the case of Makhan Lal Bangal (supra) 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 oh that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions

Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

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 Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

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.

Shri Manish Datt, learned senior counsel for the petitioner contends that the order impugned has been passed by one Mahesh Kumar Badole, who is Sub Divisional Officer, Timarni District Harda and the same Sub Divisional Officer has filed return in the present petition which is supported by his affidavit and, therefore, as he has already passed the impugned order, he will deal with the matter with prejudice mind.

Shri Sanjeev Kumar Singh, learned counsel for the State submits that the Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM

election petition filed by respondent no.5 shall be transferred to competent Sub- Divisional Officer posted in District Harda.

In view of the aforesaid, the order impugned dated 26.07.2022 (Annexure-P/6) is set aside. The Collector, Harda is directed to transfer the election petition to Sub Divisional Officer, Harda who shall deal with the election petition in accordance with the Nirwachan Niyam as well as Adhiniyam of 1993.

The parties shall be at liberty to submit their rival pleadings before the Authority concerned. The prescribed Authority shall proceed to decide the election petition in terms of Nirwachan Niyam and also law down by this Court in the case of Uday Singh (supra) and the Apex Court in the case of Makhan Lal Bangal (supra). The Sub Divisional Officer cum prescribed Authority shall decide the election petition within a period 90 days from the date of production of certified copy of this order.

The parties are directed to maintain the status quo, till the adjudication of

the election petition by the prescribed Authority.

With the aforesaid, the petition stands allowed to the extent indicated herein above.

(MANINDER S. BHATTI) JUDGE mn

Signature Not Verified Signed by: MANOJ NAIR Signing time: 2/3/2023 3:02:30 PM