Election Tribunal's Discretion to Appoint Commissioner for Evidence Recording Upheld; Rule 85 Rajasthan Panchayati Raj Rules Not a Bar: Rajasthan High Court - 2024-11-06

Rajasthan High Court Upholds Election Tribunal's Discretion in Appointing Commissioner for Witness Examination

Jodhpur: The Rajasthan High Court recently dismissed a writ petition challenging an Election Tribunal's order that allowed an elderly election petitioner to have her evidence recorded by a court-appointed commissioner at her residence due to illness. The Court affirmed that the provisions of Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, 1994, regarding the recording of a "memorandum of evidence" by the Judge, are enabling and do not prohibit a more detailed recording by a commissioner if the Tribunal deems it necessary in the interest of justice.

The writ petition was filed by Anju , whose election as a Panchayati Raj institution member, held on October 10, 2020, was contested by Looni Devi . Devi challenged Anju 's election before the District Judge, Jodhpur Metropolitan (later transferred to the Senior Civil Judge No. 7, Jodhpur Metropolitan, acting as the Election Tribunal), primarily on the ground that Anju was ineligible under Section 19(1) of the Rajasthan Panchayati Raj Act, 1994, for allegedly having three children.

During the trial, Looni Devi , aged 72 and suffering from serious ailments, filed an application under Order XXVI Rule 1 read with Section 151 of the Code of Civil Procedure (CPC), requesting that her evidence be recorded by a commissioner at her home. The Election Tribunal, by an order dated September 17, 2024, allowed this application. Aggrieved, Anju approached the High Court, seeking to quash the Tribunal's order.

Arguments Before the High Court

Petitioner's Contentions ( Anju ): The petitioner's counsel argued that the Election Tribunal's order was erroneous in fact and law. Key arguments included:

* Violation of Rule 85: The order allegedly disregarded Rule 85 of the Rajasthan Panchayati Raj (Election) Rules, 1994, which, according to the petitioner, mandates the Election Tribunal (as a persona designata) to record evidence. Appointing a commissioner amounted to an impermissible delegation of this function.

* Memorandum of Evidence: Proviso (b) to Rule 85 states the Judge "shall not be required to record evidence in full but shall only make a memorandum thereof." It was argued that a commissioner would likely record full evidence, contrary to this provision.

* Delay Tactics: The application was a ploy to delay the trial, as Looni Devi 's evidence affidavit was filed in 2021, and she allegedly failed to appear despite ample opportunities.

* Lack of Medical Proof: No medical documents certifying the illness were supposedly tendered before the Tribunal.

* Reliance was placed on Mahendra Kumar v. Arjun Kumar (2014) and Panna Ram v. Ramu Ram (2019).

Respondent's Contentions ( Looni Devi ): The respondent's counsel opposed the writ petition, submitting that:

* The writ petition was an attempt to delay the trial. * The Tribunal's order was just and lawful, and the High Court should not interfere with the discretionary power to issue a commission under Order XXVI CPC.

* Reliance was placed on Smt. Kamla v. Ms. Radha Vishnoi (S.B. Civil Writ Petition No. 519/2016).

High Court's Rationale and Decision

The High Court, after hearing both parties and perusing the record, dismissed the writ petition.

Interpretation of Procedural Rules: The Court referred to Rules 85 and 86 of the 1994 Rules. Rule 85 states that the CPC procedure shall be followed "in so far as it can be made applicable." The Court interpreted this phrase to mean that the Election Tribunal has the discretion to determine the applicability of CPC provisions to the specific case.

"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."

The Court also noted its observation from paragraph 10 of the judgment:

"In the present case, this Court finds 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, is suffering from serious ailments and therefore she is entitled to be cross-examined by the Commissioner to be appointed by the learned Election Tribunal."

Rule 85 Proviso (b) Not Prohibitory: Addressing the petitioner's main contention regarding Rule 85 proviso (b) (requiring the Judge to make a "memorandum of evidence"), the High Court relied on its co-ordinate bench decision in Smt. Kamla (supra) . It held that this provision is enabling, not prohibitory.

"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..." The Court clarified that if evidence is recorded at length by a commissioner, instead of just a memorandum, it would not vitiate the procedure under Rule 85.

Procedural Law as Handmaid of Justice: The Court cited the Supreme Court's decision in Bachhaj Nahar v. Neelima Mandal (AIR 2009 SC 1103), emphasizing that procedural laws are intended to facilitate justice, not obstruct it.

Conclusion: The High Court found no illegality or arbitrariness in the Election Tribunal's discretionary decision to appoint a commissioner for recording Looni Devi 's statement, especially given the evidence of her illness and age.

"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."

Finding no substance in the writ petition, the Court dismissed it, thereby allowing Looni Devi 's evidence to be recorded by a commissioner as ordered by the Election Tribunal. No order as to costs was made.