CHIKHURI Vs. SPECIAL JUDGE

JUDGEMENT

(1.) By this petition filed under Article 226 of the Constitution orders passed by opposite parties declaring election of petitioner as null and void have been challenged.

(2.) This declaration was granted while deciding the issue regarding the age of petitioner as preliminary issue. Although learned counsel for opposite parties attempted to defend the order on merits by referring to evidence relied by. Sub-Divisional Magistrate, but the order being bad for procedural irregularity and not inspiring confidence of impartiality and fairness has to be quashed. It is not disputed that on 2-11-1982 the case was directed to be fixed on 10-11-1982 for evidence of petitioner. On 9-11-1982 petitioner obtained stay of proceedings from the Court of District Magistrate on a transfer application alleging that Sub-Divisional Magistrate was being influenced against him by a local M. L. A. According to the petitioner the stay order was produced before the Sub Divisional Magistrate on 10-11-1982 in the morning, who orally directed parties to appear before the Magistrate on 23-11-1982, but later decided the case without affording any opportunity to him. The claim is contested because Basti being 65 Kms. from Naugarh, the place where the petition was pending, the petitioner could not have produced the order on 10-11-82. It is also alleged that the petitioner is not speaking the truth as in a different application filed by the petitioner before the Sub-Divisional Magistrate, the date of filing of stay order was disclosed as 9-11-1982 and 10-11-1982. Reliance is also placed on the comments submitted by the Sub-Divisional Magistrate that as the stay order was received after delivery of order nothing could be done.

(3.) It does not appear necessary to decide the correctness of these allegations and counter-allegations, but it stands out clearly that stay order was produced before the Sub-Divisional Magistrate on 10-11-1982 and that he decided the issue on merits when it was fixed only for evidence. In absence of any order fixing 10-11-1982 for hearing normally the Sub-Divisional Magistrate should not have decided it on merits. Of course, if parties would have agreed it might have been different; otherwise on a date fixed for evidence the Sub-Divisional Magistrate could not have taken up the hearing. The order-sheet is silent, it only mentions, in view of the order election is declared null and void and charge may be handed over to the opposite party. In deciding the petition on merits on a date the case was fixed for evidence, the Sub-Divisional Magistrate committed an error of procedure. The petitioner was obviously taken by surprise. Even he would have participated, it would have been denial of adequate opportunity of hearing. Then, proceedings conducted in a Court of law must appear to be fair. In the background and the manner in which the order was passed it leaves much to be desired.