1 2025:CGHC:61722 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 6054 of 2025 1 - Budhnath Paigor S/o Late Shri Shivram Paigor Aged About 52 Years Member Janpad Panchayat Bilha Area No. 12, R/o Village Nagoi, Thana Sarkanda, Tahsil Beltara, District- Bilaspur (C.G.) --- Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Panchayat Department Mahanadi Bhawan, Capital Complex Atal Nagar, New Raipur, District- Raipur (C.G.) 2 - State Election Commission Through Its Secretary, Near D.K.S. Bhawan, Old Mantralaya, Road, Motibag Raipur, District- Raipur (C.G.) 3 - Collector And District Election Officer Bilaspur, District- Bilaspur (C.G.) 4 - Returning Officer (Panchayat) Sub Divisional Officer (Revenue) Bilha Janpad Panchayat Bilha District- Bilaspur (C.G.) 5 - Assistant Returning Officer (Panchayat )/ Tahsildar Bilha Tahsil Bilha District- Bilaspur (C.G.) 6 - Deepak Kumar Liberty S/o Shri Om Narayan Liberty Aged About 27 Years R/o Village Nagoi Dhabhipara, Tahsil Beltara District- Bilaspur (C.G.) 7 - Alka Jwala Suryawanshi R/o Mangla Bilaspur District- Bilaspur (C.G.) 8 - Durga Kariyare R/o Urtum Tahsil Beltara District- Bilaspur (C.G.) 9 - Kapil Nath Suryawanshi R/o Village Nagoi Tahsil Beltara District- Bilaspur (C.G.) 10 - Kunti Mehar D/o Shri Neturam Mehar R/o Village Nagoi Tahsil Beltara District- Bilaspur (C.G.) 11 - Lok Prakash Diwakar R/o Village Nagoi Tahsil Beltara District- Bilaspur (C.G.) --- Respondent(s) BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.12.19 19:53:06 +0530 2 ____________________________________________________________ For Petitioner : Mr. Sunil Sahu, Advocates For State/Respondents No.1 to 5 : Mr. Akhilesh Kumar, Govt. Advocate For Respondent No.6 : Mr. Nikhil Wadhwani, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 17/12/2025 1. Petitioner has filed this petition seeking following relief (s) :- “10.1 That, this Hon’ble Court may kindly be pleased to issue an appropriate writ by quashing the impugned order dated 06.10.2025 (Annexure P-1) passed by the Collector Bilaspur. 10.2 That, this Hon’ble Court may kindly be pleased to call for the record from the Election Tribunal for kind perusal of this Hon’ble Court. 10.3 That, this Hon’ble Court may kindly be pleased to direct the learned Collector for deciding the election petition after framing of issues and recording the evidence of parties in the matter. 10.4 Any other relief, which may be suitable in the facts and circumstances of the case, may also be granted.” 2. Learned counsel for petitioner submits that petitioner was elected as Member of Janpad Panchayat, Bilha Region No.12. Respondent No.6 filed an election petition U/s.122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (hereinafter referred to as ‘the Adhiniyam, 1993’) questioning the election of the petitioner. On service of notice of election petition, petitioner filed reply denying all the adverse allegation made in the election petition. He further contended that thereafter, respondent No.3 without framing any issue and without recording any evidence has passed the order impugned directing the Returning 3 Officer-cum-Tahsildar, Bilha for recounting of the votes of Booth No.194 observing that there is contradiction in the number of votes mentioned in the Form-18 Part-I submitted by petitioner and Returning Officer. He submits that the impugned order passed by the respondent No.3 is contrary to the provisions and procedure as prescribed in Chhattisgarh Panchayat (Election Petition Corrupt Practices and Disqualification for Membership) Rules,1995 (In short ‘the Rules, 1995’). 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 to the trial of suits. After submission of reply by petitioner herein denying all adverse allegations levelled in election petition, the respondent No.3 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 to cross-examine the witnesses, if any. However, the respondent No.3 without following the procedure prescribed under the Rules of 1995 i.e. without framing issues; recording evidence of the parties and giving opportunity to cross- examine the witnesses, order impugned has been passed erroneously. Hence, the impugned order be quashed and a direction be issued to the respondent No.3/Specified Officer for deciding the election petition in accordance with law. 3. Learned counsel appearing for the State, as well as for respondent No. 6, supported the impugned order and submitted that, prima facie, respondent No. 3 had found recounting of votes to be necessary and therefore directed the same without framing issues, hence, the 4 impugned order cannot be said to be erroneous in any manner, as the order is passed in exercise of the jurisdiction vested on him. Counsel for respondent No.6/election petitioner submits that he is having no objection if petition is allowed and matter is remitted back to election tribunal. 4. I have heard learned counsel for parties and perused the documents placed on record. 5. Before proceeding further with the case I find it appropriate to refer the Rule 11 of the Rules, 1995, which provides for procedure for trial of an election petition filed Under Section 122 of the Adhiniyam, 1993. Rule 11 of the Rules, 1995 envisages 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 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 5 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.” 6. 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. 6 7. 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. 8. 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. 9. Recently, the issue of non-compliance of the provisions of Rule 11 of the Rules of 1995 came 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 7 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.” 10. 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 8 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 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 9 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." 11. In case at hand, respondent No.6 filed election petition challenging the election of petitioner. Allegations in election petition were specifically denied by petitioner by filing reply. Respondent No.3 upon comparison of Form-18 Part-1 produced by respondent No.6 and the Returning Officer separately, came to a conclusion that there is discrepancy with regard to number of votes in Polling Booth No.194, and therefore, passed the impugned order directing for recounting of votes. Perusal of order impugned would show that before passing such an order, respondent No.3 has not framed issues, not examined any witnesses and passed the impugned order of recounting of votes, merely on the basis of pleading submitted by parties, which is not proper. It is well settled that election petitioner has to first specifically aver in the petition grounds and then prove it by leading evidence to justify the prayer for recount. Recounting of votes cannot be passed on mere asking, issue should have been framed and after recording the evidence, if the Election Tribunal is satisfied that recount is necessary, then recount can be directed. Therefore, in the considered opinion of this Court, the Specified Officer has committed error in passing the order impugned for recounting of votes of Pooling Booth No.194 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. 10 12. For the foregoing discussions made here-in-above and in light of the decisions as mentioned above, this petition is allowed. The order impugned dated 06.10.2025 (Annexure P-1) passed by Specified Officer/Respondent No.3 is set-aside. Case is remitted back to the respondent No.3/Specified Officer with a direction to decide the election petition afresh following due procedure of law as envisaged under the Rules, 1995. 13. Parties are directed to appear before the respondent No.3 on 31.12.2025. Certified copy as per rules. Sd/- (Parth Prateem Sahu) Judge Balram