GOLAK BEHARI CHHOTRAI Vs. HARIHAR JENA AND ORS.

JUDGEMENT

(1.) THE Plaintiff and opposite parties 1 to 7 were contestants in the election held on 16 -11 -1967 for the office of chairmanship of the Delang Punchayat Samity in the district of Puri. The Plaintiff was declared to be elected having secured the largest number of votes. He polled 60 votes as against 59 polled by opposite party No. 1. opposite party No. 1 filed an application under Section 44 -D and 44(E) of the Orissa Parichayat Samiti and Zilla Parishad Act, 1959 (hereinafter to be referred to as the Act) challenging the election of the Plaintiff. The application was filed in the Court of the Munsif, Puri, who is the Election Commission under Section 41 -B, Sub -section (2), Clause (b) of the Act. The application was registered &s a miscellaneous case No. 321 of 1967. opposite party No. 1 in paragraph 4 of the election petition averred that out of 60 votes polled by the Plaintiff, three of the ballot papers were defective and should not have been counted in his favour and should have been rejected as those ballot papers did not bear the required seal mark. In paragraphs 5 to 9 of the petition, various acts of corrupt practice materially affecting the results of the election, were alleged. The Plaintiff contested the election petition. The miscellaneous case was decreed by the learned Munsif, by his judgment dated 21.9.1968. The election petition was allowed and opposite party No. 1 was declared to have been duly elected as chairman of the Delang Punchayat Samity. This conclusion was reached on a finding that two of the ballot papers (Exts. 1 and 4) were invalid. If these two votes were deducted from the 60 votes cast in favour of the Plaintiff, then opposite party No. 1 secured one vote more and as such secured a majority of votes.

(2.) THE learned Munsif rejected exts. 1 and 4 on the ground that they did not bear the cross -marks required to be caused by affixing the seal correctly. The marks found on those exts. were given with the reverse end of the seal and by these marks the voters can be identified. He rejected exhibits 1 and 4 on the basis of Rule 34(i) of the Orissa Panchayat Samity and Zilla Parishad (Conduct of Election) Rules, 1966 (hereinafter to be referred to as the Rules). Against this order the Plaintiff has filed this writ application under Articles 226 and 227 of the Constitution.

(3.) BEFORE examining the aforesaid two questions of law, it would be necessary to give clear description of the nature of the marks put on exts. 1 and 4. The seal prescribed is a small rectangular piece of wood the base and apex of which are square shaped. To one of the square shaped ends a piece of rubber having a cross mark is affixed while there is no such rubber attached to the other end. The seal is put by using the end containing the rubber cross mark stamp. If the stamp is given, with ink, with the end of containing the rubber it would leave a crossmark on the ballot paper, if the stamp is given, with ink, with the reverse end it would leave the impression of square with no cross mark.