ACHINTA KUMAR GHOSH Vs. NIYAT HOSSAIN

JUDGEMENT

(1.) This application is at the instance of the defendant and is directed against the order dated July 22, 2009 passed by the learned Civil Judge (Junior Division), First Court, Kandi in Misc. (Election) Case No.14 of 2008 thereby allowing an application filed by the plaintiff/opposite party for production of the ballot papers and ballot account I and II, result sheet, etc.

(2.) The short fact of the case is that the opposite party filed an election petition challenging the legality and validity of the election of the petitioner before the learned Civil Judge (Junior Division), First Court, Kandi and the said petition was registered as Misc. (Election) Case No.14 of 2008. THE petitioner won the election held on May 18, 2008 and 736 persons voted for the seat. On May 21, 2008, the counting was started and election officer declared that 742 ballots would be counted, i.e. 736 casting votes and 6 E.O. votes. THE opposite party contended that in fact at the time of counting 738 ballots were found instead of 742 and that 4 ballots cast in favour of the opposite party no.1 was considered in favour of the petitioner and 14 ballots though legal were rejected by the election officer. THE opposite party filed an objection on May 21, 2008 but it was not received. THErefore, on May 22, 2008, the opposite party lodged a complaint with the election officer and prayed for recounting of the ballot papers. Since nothing was done, he filed the election petition. In that Misc. (Election) case, the opposite party herein filed an application for production of the ballots, counting papers, etc. which was allowed by the impugned order. Being aggrieved by the said order, the successful candidate of the election preferred this application. Mr. Roy, learned Advocate appearing on behalf of the applicant, submits that the order impugned is very much cryptic and nothing has been discussed. Such type of serious matter cannot be simply sustained without any discussion more. As per provisions of Section 82 of the Panchayat Election Act, 2003, the election petition must contain the full particulars of any corrupt practice that the petitioner alleges including a full statement as possible, the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, etc. THE opposite party did not comply with such provisions. Before allowing the application for calling for the ballot papers, etc. the learned Civil Judge was required to see that whether the petitioner of the Misc. (Election) case has been successful in bringing out sufficient materials in support of his contention as required under Section 82 of the said Act. In the instant case, he did not file such particulars relating to corrupt practices. Even the application for calling for the ballot papers, etc. does not lay down anything as to corrupt practice but the learned Civil Judge allowed the application in a cryptic manner and so the order impugned should be set aside.

(3.) Lastly, Mr. Roy has referred to the decision of Chandrika Prasad Yadav Vs. State of Bihar and Ors., 2004 6 SCC 331 specially the paragraph no.20 and 21 and submits that an order for recounting of votes can be passed upon fulfilling of certain conditions such as prima facie case pleading of material facts stating irregularities in counting votes and roving and fishing enquiry shall not be made while directing recounting of votes. In the instant case, I find that there is no material in support of the allegation to support for recounting of the votes. The simple prayer for recounting to verify whether the allegation is true or not cannot be allowed. So, there being no materials in support of the application, I am of the view that the cryptic order passed by the learned Civil Judge cannot be supported.