CHAITANYA PRASAD DAS Vs. BANAMALI SWAIN

JUDGEMENT

(1.) THE Petitioner has filed this Writ Petition challenging the Judgment & Order Dated 5.1.2009 passed by the Learned District Judge, Cuttack, in Election Appeal No. 15 of 2008 wherein he allowed the appeal & set aside the Judgment & Order Dated 22.2.2008 passed by Learned civil Judge (Sr. Division) 2nd Court, Cuttack In Election Misc. Case No. 2 of 2007 filed by Opp. Party No. 1, & declared the election of the present Petitioner to the seat of Panchayat Samiti Member of Salipur Panchayat Samiti under Raisunguda constituency as void & further declared that Opp. Party No. 1 was duly elected for the said seat.

(2.) AS per the case of Opp. Party No. 1 (election Petitioner), he along with three others including the Petitioner contested for the seat of member of Salipur Panchayat Samiti from Raisunguda constituency. Polling was held on 17.2.2007. On counting, Petitioner was found to have secured 1753 votes & opp. Party No. 1, 1773 votes. The result of the election was declared by the Election Officer (Opp. Party No. 2) on 24.2.2007, declaring Opp. Party No. 1 as elected, but a few minutes thereafter the Election Officer proceeded to recount the votes, without any formal application on behalf of the Petitioner & despite objection raised by the polling agent of Opp. Party No. 1. At the time of recording, some ballot papers cast in favour of the Opp. Party No. 1 were found missing & some fictitious ballot papers found in unsealed packets were illegally counted in favour of the Petitioner. After such recounting, the Election Officer declared Opp. Party No. 1 to have secured 1757 valid votes as against 1763 votes polled by the Petitioner. Thereafter, the Election Officer declared the Petitioner as elected Samiti member of Raisunguda constituency.

(3.) THE Election Officer, Opp. Party No. 2 filed a separate written statement denying the averments made in the election petition. He pleaded that the polling agent of Petitioner made a written application for recounting of votes & accordingly the ballot papers were recounted. It is his further case that all the documents, including the ballot papers were received from the concerned presiding officers in sealed condition & the same were opened in presence of the candidates at the time of recounting. No objection was raised by Opp. Party No. 1 or his agent. After recounting, it was found that Opp. Party No. 1 had polled 1757 valid votes & the Petitioner 1763 votes. Accordingly, the Petitioner was rightly declared elected.