Rajasthan Panchayati Raj (Election) Rules| Election Tribunal Can Get Statements Of Witness Recorded Through Court Commissioner: Rajasthan HC
The Rajasthan High Court held that the Election Tribunal rightly exercised the discretion vested with it in deciding to get the statements of an ailing 72 yr-old woman recorded through the Court Commissioner appointed in this behalf.
The petitioner had approached the High Court for issuance of a writ, order or direction for quashing the impugned order passed in the Civil Miscellaneous Case (Election Petition) whereby the Tribunal allowed the Respondent to get her statements recorded at her home through a commissioner.
The Single-Judge Bench of Justice Kuldeep Mathur held, “Thus, in the present case, if after considering the facts and circumstances of the case and in the interest of justice, if the learned Election Tribunal having exercised the discretion vested with it had decided to get the statements of the witness Smt. Looni devi recorded through the Court Commissioner appointed in this behalf, the said discretion can neither be held illegal nor arbitrary.”
Advocate Vinay Shrivastava represented the Petitioner while Advocate Gaurav Choudhary represented the Respondent.
Factual Background
The election of the petitioner pursuant to the election held on October 10, 2020, was challenged by the respondent- Looni Devi by way of an election petition filed before the District Judge mainly on the ground that the petitioner is a mother of three children and thus was ineligible to contest the elections as per Section 19(l) of the Rajasthan Panchayati Raj Act, 1994. The said election petition was transferred to the Court of Senior Civil Judge (Election Tribunal) for trial.
During the pendency of trial, the respondent moved an application under Order XXVI Rule 1 read with Section 151 of CPC, stating that the respondent wanted to get her evidence recorded through a Commissioner appointed by the Election Tribunal at her home on account of her illness. The grievance of the petitioner was that the Election Tribunal had directed vide the impugned order to get the statements of the respondent recorded at her home through commissioner appointed in this behalf.
For the petitioner, Shrivastava submitted that the impugned action of the Tribunal in allowing the statements of the respondent to be recorded at her home was in complete disregard to the Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, 1994. It was submitted that by way of filing an application under Order XXVI Rule 1 read with Section 151 of CPC, the respondent simply intended to delay the trial.
It was the case of the respondent that the power of issuing commission under Order XXVI is discretionary and the same should not be interfered with by this Court.
The Bench found that sufficient documentary evidence was produced before the Election Tribunal with the application filed under Order XXVI Rule 1 read with section 151 CPC to establish that the election petitioner- Smt. Looni Devi who is aged about 72 years, has been suffering from serious ailments and therefore she is entitled to be cross-examined by the Commissioner to be appointed by the Election Tribunal.
Referring to Rule 85 of the Rules of 1994, the Bench clarified that the Tribunal after assessing the nature of proceedings shall have the liberty to decide as to what extent the procedure as mandated under the provisions contained in CPC can be applied.
The High Court also relied upon its judgment in Smt. Kamla v. Ms. Radha Vishnoi wherein it was observed that the proviso (b) to Rule 85 of the Rules of 1994 enables to record only a memorandum of evidence and provides, ‘the judge shall not be required to record evidence in full’. The Rule further leaves it to his discretion to make a memorandum of the evidence, which is sufficient in his opinion for the purpose of deciding the petition. It cannot be said that in case instead of recording the deposition of a witness by way of memorandum of evidence, if evidence of witness is at length is recorded, the said procedure would be against the provisions of Rule 85 of the Rules of 1994 and the same would stand vitiated.
The Bench rejected the plea raised on behalf of the petitioner that the Court Commissioner cannot be appointed for examining the witness Looni Devi in view of the law laid down in In view of the law laid down in Smt. Kamla (supra).
“The language of provision, providing for recording of memorandum only and providing for discretion regarding the sufficiency, makes the provision as enabling and not prohibitory. Therefore, the objection raised by the learned counsel for the petitioner regarding non- adherence of Rule 85 of the Rules of 1994 has no basis”, the Court emphasized.
Thus, finding no merit in the Writ Petition, the Bench dismissed the same.
Cause Title: Anju Parihar vs. Looni Devi [Neutral Citation: 2024:RJ-JD:44099]
Appearance:
Petitioner: Advocate Vinay Shrivastava
Respondent: Advocate Gaurav Choudhary
