AKSHAYA KUMAR BARIK Vs. BHASKAR SAHOO

JUDGEMENT

(1.) THE petitioner has challenged the decision of the Civil Judge (Senior Division), Padmapur (the Election Commissioner) in Election Misc. Case No. 2/97 as confirmed by the appellate authority, namely the District Judge, Sambalpur, whereunder the election of the petitioner as Member, Amthi Panchayat Samiti has been set aside and opposite party No.l has been declared to be elected. The election had taken place on 13.1.1997. The present petitioner as well as present opposite party No. 1 were found to have secured the same number of votes in their favour. The other candidates had secured much less votes. In accordance with rules, there was a draw of lots and the present petitioner was declared as elected. Opposite party No. 1 filed the aforesaid Election Misc. Case seeking for recount of ballots. Thereafter, the trial Court recounted the ballots and found opposite party No. l to be duly elected. The appeal filed by the present petitioner was dismissed. Hence the present writ application.

(2.) THE learned counsel appearing for the petitioner has submitted that in the election petition, the only prayer was to count the disputed rejected ballots and there was no prayer for counting all the ballots. It is, therefore, submitted that the trial Court has committed an illegality in permitting recounting of all the ballots. Though such submission appears to be prima facie justified in view of the peculiar facts and circumstances of the present case, I am not inclined to accept such contention. It has been observed by the appellate Court that at the time when the trial Court directed for recounting of all ballots, no objection was raised on behalf of the present petitioner. In other words, it appears that the direction regarding recounting of all the ballots was practically on the basis of consent of both parties. There is no material on record to indicate that the present petitioner had ever protested when the trial Court had directed for recounting of all the ballots. Only after the decision went against the petitioner after recounting, the petitioner had challenged the same in appeal. Moreover, as observed by the appellate Court, the trial Court exercised its discretion in directing recount of all the ballots. Since both the candidates had secured the same number of votes, directing recount of all the ballots, though not prayed for, appears to be in aid of substantial justice. Since after recounting it has been found that opposite party No. l had secured more votes and the truth is now known, it may not be in the interest of justice to set aside such decisions of the trial Court and the appellate Court merely on the basis of legal technical contention that there was no justification for recounting all the ballots.