Election Tribunal's Discretion Under Rajasthan Panchayati Raj Rules To Appoint Commissioner For Recording Evidence Is Enabling: High Court

The Jodhpur bench of the Rajasthan High Court ruled that Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, did not prohibit the Election Tribunal from appointing a Court Commissioner for examining a witness because the discretion provided in proviso (b) to the Rule made the provision enabling and not prohibitory.In doing so the court dismissed a plea moved against the election tribunal's order which had permitted to 72-year-woman who had challenged the petitioner's election, to record her evidence by way of a court commissioner as she was unwell. For context, Rule 85 of the Rules provides that the procedure provided in CPC shall be followed in hearing the election petitions, so far as it could be made applicable. Proviso (b) to the Rule 85 lays down that the Judge shall not record evidence in full but shall only make a memorandum sufficient in his opinion for deciding the petition.A single judge bench of Justice Kuldeep Mathur in its order said, “...the use of expression 'shall not be required to record evidence in full' and further giving discretion regarding sufficiency of the memorandum cannot be read as prohibition against recording of evidence at length and it cannot be said that in case instead of recording the deposition of 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.It cannot be said that in case instead of recording the deposition of 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.”It further said, "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 was hearing a petition filed by the petitioner whose election was challenged by the respondent in an election petition. During the pendency of the trial, the respondent filed an application under CPC for getting her evidence recorded through a Commissioner appointed by Election Tribunal at her home on account of illness. This application was accepted by the Election Tribunal against which the petition was moved before the High Court. It was argued on behalf of the petitioner that the application was allowed by the Election Tribunal in complete disregard to Rule 85 of the Rules which made it amply clear that only the Tribunal could record evidence in the matter. The counsel also referred to proviso (b) to the Rule to argue that as per the provision the judge shall not record evidence in full and shall make a memorandum. It was submitted that allowing recording of evidence of the respondent violated this Rule because such recording did not amount to recording of evidence in memorandum. Rejecting the arguments put forth by the counsel for the petitioner, the Court said, "Having perused Rule 85 of the Rules of 1994, in the opinion of this Court, the phrase “in so far as it can be made applicable” indicates that while deciding an election petition, the Election Tribunal shall have the discretion to determine the applicability of CPC to the case and the procedure provided under CPC shall not apply to the case automatically. In other words, the Election 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. 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". Furthermore, the Court agreed with the ruling in a coordinate bench judgment by the Rajasthan High Court, Smt. Kamla v. Ms. Radha Vishnoi, in which it was held that, the use of expression 'shall not be required to record evidence in full' in the proviso (b) to Rule 85 and further giving discretion regarding sufficiency of memorandum could not be read as prohibition against recording of evidence at length. It held that the language of the proviso made it enabling and not prohibitory. Finally, the Court also highlighted that the Election Tribunal had sufficient evidence to establish that the respondent who was a 72 year old woman was suffering from serious illness and thus was entitled to be cross-examined by the Commissioner appointed by the Tribunal. In this background, the Court ruled that there was no substance in the petition...

Election Tribunal's Discretion Under Rajasthan Panchayati Raj Rules To Appoint Commissioner For Recording Evidence Is Enabling: High Court

Nupur Agrawal

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