Netram Kashyap Vs State of Chhattisgarh

1 - State Of Chhattisgarh Through Its Secretary, Department Of Panchayat And Rural Development, Mahanadi Bhawan, Mantralaya, Atal Nagar, Nava Raipur, District - Raipur Chhattisgarh

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2 - The Collector District Janjgir-Champa Chhattisgarh

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3 - Sub-Divisional Officer (R) Pamgarh, District Janjgir-Champa Chhattisgarh

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4 - Janki Prasad Kashyap S/o Keshav Prasad Aged About 70 Years R/o Ward No. 12, Chorbhatti, Tahsil Pamgarh, District Janjgir-Champa Chhattisgarh

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5 - Lakshmi Prasad S/o Rajaram Aged About 40 Years R/o Ward No. 10, Chorbhatti, Tahsil Pamgarh, District Janjgir-Champa Chhattisgarh

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Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.12.08 17:28:07 +0530

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6 - Naresh Kashyap S/o Baldev Prasad Aged About 35 Years R/o Ward No. 18, Chorbhatti, Tahsil Pamgarh, District Janjgir-Champa Chhattisgarh

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7 - Puniram Kashyap S/o Chaitram Aged About 40 Years R/o Ward No. 11, Chorbhatti, Tahsil Pamgarh, District Janjgir-Champa Chhattisgarh

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8 - Sanat Patel S/o Ramfal Patel Aged About 40 Years R/o Ward No. 17, Chorbhatti, Tahsil Pamgarh, District Janjgir-Champa Chhattisgarh

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9 - Presiding Officer Raghuraj Singh Chandel R/o Village Taraud, Tahsil Akaltara, District Janjgir-Champa Chhattisgarh

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10 - Returning Officer, Shri Mahendra Lahre Tahsildar, Pamgarh, District Janjgir-Champa Chhattisgarh

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... Respondent(s)

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For Petitioner : Mr. Shivang Dubey, Advocate For Resp. No.1 to 3 & 10/State : Mr. Satish Gupta, Govt. Advocate For Respondent No.4 : Mr. Chandresh Shrivastava, Advocate

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

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CAV Order

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Petitioner by this instant petition has challenged the legality and sustainability of the order dated 26.05.2025 (Annexure P-1) whereby Sub Divisional Officer (Revenue)- cum- Election Tribunal has passed an order of re-counting of votes.

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Facts relevant for disposal of this writ petition are that petitioner along with respondent No. 4 to 8 have contested the election for the post of Sarpanch of Village Panchayat Chorbhatti, Tahsil – Pamgarh District Janjgir Champa, Chhattisgarh. Polling for election was held on 23.02.2025. On the same date, counting of votes was also done and

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after conclusion of counting, as per declaration, petitioner secured 489 votes whereas respondent No.4/election petitioner secured 451 votes. Petitioner was declared as returned candidate and certificate of election was issued in his favour on 25.02.2025. Respondent No.4 thereafter filed an election petition under provision of Section 122 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993, pleading therein that number of votes as secured by petitioner and respondent No.6 has been interchanged and thereby petitioner has been held to have secured highest votes which is erroneous, prayed for re-counting of votes of Booth No.79, election of petitioner/non-applicant No.1 to be illegal and void, to cancel the election of non-applicant No.1/petitioner and to declare election petitioner as elected candidate. Petitioner submitted reply to election petition denying the pleading made therein. Respondents No. 5, 6, 8, 9 have also submitted their reply.

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Election Tribunal had passed order for re-counting of votes which was put to challenge in a writ petition bearing WPC No.1975 of 2025 on the ground that order was passed without following due procedure under Rule 11 of Chhattisgarh Panchayats (Election Petitions, Corrupt Practices and Disqualification for Membership) Rules, 1995 (hereinafter referred to as “Rules of 1995”). Writ petition was allowed and order dated 16.04.2025 was quashed. Matter was remitted back to Election Tribunal to decide the election petition in accordance with law. After receipt of case in remand Election Tribunal has formulated issues, fixed the case for recording of evidence of parties and thereafter impugned order is passed.

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Learned counsel for the petitioner would submit that order impugned is

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passed without application of mind. It is in verbatim to order dated 16.04.2025 which was set aside/quashed by this Court in WPC No.1975 of 2025. Election Tribunal has not discussed the evidence for recording its satisfaction that the case for re-counting is made out and therefore order impugned is non-speaking order, hence, it is not sustainable. He also contended that ‘counting slip’ which is relied upon by Election Tribunal is submitted just before the date of fixing of case for argument and it was not filed along with election petition and therefore also said document could not have been considered. Author of the document i.e. ‘counting slip’ is not examined as witness. Hence, also, ‘counting slip’ which is relied upon by Election Tribunal is contrary to law.

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Learned counsel for respondent No.1 to 3/State would oppose submission of learned counsel for the petitioner and would submit that Election Tribunal after receipt of case in remand has followed due procedure as envisaged under Rule 11 of the Rules of 1995, recorded evidence of parties and only thereafter order has been passed. He contended that in the impugned order, the Prescribed Authority has clearly observed that ‘Form -17’ which is produced of Booth No.79 is prepared incorrectly and, therefore, order impugned is a reasoned order.

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Learned counsel for respondent No.4/election petitioner while opposing submission of learned counsel for the petitioner would submit that election petitioner in his petition has very specifically and clearly stated as to how petitioner has been shown to have secured highest votes. Referring to ‘counting slip’ of Booth No.79 it is argued that petitioner

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secured 85 votes and respondent No.6 Naresh secured 157 votes. However, votes of above two persons have been interchanged and thereby the petitioner has been shown to have secured highest votes. He also submits that Annexure R-4/1 which is a ‘counting slip’ of Booth No.79 clearly mention that Naresh secured 157 votes and petitioner secured 85 votes which is issued under signature of Presiding Officer. This document is not questioned by petitioner in its reply and therefore at this stage, validity of this document could not be questioned. He also contended that along with election petition, election petitioner submitted documents along with list of documents which could be verified from records. Hence, in this writ petition, petitioner would not be permitted to raise the ground which is not pleaded in the reply.

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I have heard learned counsel for the parties and also perused records of election petition.

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So far as submission of learned counsel for the petitioner that ‘counting slip’ which is filed along with reply Annexure R-4/1 is not filed along with election petition and it is handed over before Election Tribunal for first time just before fixing the case for arguments is concerned, perusal of record would show that election petition was filed by the election petitioner on 27.02.2022. Along with election petition list of documents is also available . Three documents have been filed along with election petition by the election petitioner. First document is counting slip dated 23.02.2025 which is of Booth No.79, second document is an application before the competent authority for supply of relevant information as sought therein and last document is receipt of application under Lok Seva Guarantee. From aforementioned

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documents available in record it is apparent that petitioner along with election petition had submitted list of documents and ‘counting slip’ of Booth No.79 also.

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Respondent No.6 Naresh Kashyap with home vote of petitioner is alleged to have interchanged had submitted reply to election petition pleading specifically that non-applicant No.6 Raghuraj Singh Chandel was Presiding Officer of Booth No.79 and non-applicant No.7 was Returning Officer. He pleaded that he is having no objection for recounting of votes and further that in Booth No.79 he has secured 157 votes and returned candidate/petitioner herein 85 votes. Non-applicant No.4 Puniram Kashyap also filed his reply mentioning that he is having no objection. Non-applicant No.6- Presiding Officer of Booth No.79 submitted his reply pleading that after completion of counting, ‘counting slips, were issued to Agents of candidates in which Jaanki Prasad secured 30 votes, Laxmi Prasad 22 votes, Naresh Kashyap 157 votes, Netram petitioner herein/returned candidate 85 votes, Puniram 49 votes and Sanat Patel 132 votes. It is also pleaded that if there is any difference in counting slip and the lection results it may be a human error.

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Election petitioner in his election petition has categorically pleaded in para-11 with regard to error committed with respect to mentioning of secured votes by each of candidates while preparing election results contrary to number of votes secured by candidates as mentioned in ‘counting slip’. Further, number of votes has also been specified in para-8 of pleading . In support of pleadings made in election petition, election petitioner has examined himself as witness No.1, Ramkumar

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Kashyap as witness No.2, Vedprakash as witness No.3 and Laxminarayan Kashyap as witness No.4. Non-applicant Netram Kashyap is also examined before the Tribunal. Witnesses examined by election petitioner has supported the case of election petitioner.

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11.Perusal of the order sheet would show that on 08.05.2025, election petitioner had made statement that he do not want to give further evidence. Order sheet dated 13.05.2025 would show that nonapplicant No.1 submitted affidavit under Order 18 Rule 4 CPC as examination-in-chief of non-applicant No.1/election petitioner. Returned candidate Netram Kashyap, Omprakash and Ramnarayan were crossexamined on 16.05.2025 and have closed evidence. Election Tribunal thereafter had fixed the case for argument.

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Though in election petition there is specific pleading that in the ‘counting slip’, Presiding Officer of Booth No.79 while preparing counting slip has recorded that returned candidate secured 85 votes, Naresh/non-applicant No.3 secured 157 votes and in the election results, number of votes have been erroneously mentioned by Presiding Officer, the Election Tribunal has not fixed the case for recording of evidence of other non-applicants. No notice has been issued to non-applicants No.6 and 7 against whom allegations were made, overlooking the fact that non-applicant No.6 has submitted his reply.

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True it is that order to be passed by Election Tribunal/Authority should contain reasons by discussing the evidence which is not appearing in this case. Hon’ble Supreme Court in case of Arikala Narasa Reddy

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Vs. Venkata Ram Reddy Reddygari and Anr. (2014) 5 SCC 312 ,has

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observed thus:

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“14. Before the court permits the recounting, the following conditions must be satisfied:

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(i) The court must be satisfied that a prima facie case is established;

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(ii) The material facts and full particulars have been pleaded stating the irregularities in counting of votes;

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(iii) A roving and fishing inquiry should not be directed by way of an order to re-count the votes;

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(iv) An opportunity should be given to file objection; and

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(v) Secrecy of the ballot should be guarded. ”

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In case of Secretary and Curator, Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity and Ors. (2010) 3 SCC 732, Hon’ble Supreme Court has observed thus:

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“40 . It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind." [Vide State

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of Orissa Vs. Dhaniram Luhar and State of Rajasthan Vs. Sohan Lal & Ors.]

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41. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. [Vide Raj Kishore Jha Vs. State of Bihar & Ors. AIR 2003 SC 4664; Vishnu Dev Sharma Vs. State of Uttar Pradesh & Ors. (2008) 3 SCC 172; Steel Authority of India Ltd. Vs. Sales Tax Officer, Rourkela I Circle & Ors. (2008) 9 SCC 407; State of Uttaranchal & Anr. Vs. Sunil Kumar Singh Negi AIR 2008 SC 2026; U.P.S.R.T.C. Vs. Jagdish Prasad Gupta AIR 2009 SC 2328; Ram Phal Vs. State of Haryana & Ors. (2009) 3 SCC 258; Mohammed Yusuf Vs. Faij Mohammad & Ors. (2009) 3 SCC 513; and State of Himachal Pradesh Vs. Sada Ram & Anr. (2009) 4 SCC 422].

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42. Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as why his application has been rejected. ”

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In view of the aforementioned decisions of Hon’ble Supreme Court, it is apparent that before passing of order of re-counting of votes, Election Tribunal should be satisfied that prima facie case is made out and all material facts and particulars have been pleaded stating irregularities in counting of votes by providing opportunity to all parties to lead evidence and further that order to be passed must be supported by reason.

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From perusal of the order sheets, it is clearly appearing that case was not fixed for recording of evidence of other non-applicants who submitted reply to election petition and further from impugned order, it is not reflecting that Election Tribunal has discussed the evidence and has assigned cogent reason for directing re-counting of votes.

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Perusal of the pleadings made in the election petition would show that election petitioner in election petition has pleaded material facts, provided full particulars in support of the case, further, have examined witnesses supporting the pleadings and therefore election petitioner cannot be put at fault when he pleaded material facts and provided full particulars on which his case is based, but the Prescribed Authority failed to record satisfaction and have not followed due procedure for fixing of case for recording of evidence of witness/witnesses of other non-applicants.

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In the aforementioned facts of case and discussions made as also decisions of Hon’ble Supreme Court, I am of the view that order dated 26.05.2025 Annexure P-1 passed by Prescribed Authority/Election Tribunal directing re-counting of votes is not sustainable in the eye of law and it is accordingly set aside. Matter is remitted back to respondent No.3/Prescribed Authority -cum- Sub Divisional Officer to pass order afresh following due process of law, providing opportunity of hearing to other non-applicants also to lead evidence if they so desire and opportunity of hearing to all parties. Proceedings of election petition may be concluded following due process of law within a further period of 3 months from the date of appearance of the parties before it.

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Parties are directed to appear before the Election Tribunal on 23^rd December 2025.

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Writ petition is accordingly allowed to the extent and in the manner indicated above.

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Original Record of election petition which is placed before this Court for perusal by learned counsel for the State be returned back.

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Sd/- Sd/- (Parth Prateem Sahu) Judge

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Praveen

Netram Kashyap v. State of Chhattisgarh

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Netram Kashyap v. State of Chhattisgarh

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