HARIHAR SETHI Vs. TRINATH NAIK

JUDGEMENT

(1.) This election petition has been filed by Sri Harihar Sethi, a Congress (I) candidate against Sri Trinath Naik. a Lok Dal candidate who has won the election. It has been prayed that the election of respondent No. 1 Trinath Naik be declared void and that it also be declared that the petitioner has been elected as a member of the Orissa Legislative Assembly from Hindol No. 117 (SC) Constituency, The facts stated in the petition so far as it is relevant may be briefly stated thus:

(2.) Petitioner, who is a member of the Scheduled Caste, contested the election as a candidate of Congress (I) party from Hindol (S.C.) Constituency to the Orissa Legislative Assembly. Respondent No. 1 contested the same election to which polling took place on 31-5-3 980. Respondent No. 1 contested as a candidate of Lok Dal and respondent No. 2 contested as a candidate of Congress (U) party. The counting of votes was done on 1-6-1980 by the Subdivisional Officer, Hindol who was the Returning Officer. In this election respondent No. 1 was declared elected as he secured 16,670 votes as against 16,390 votes secured by the petitioner and 5,269 votes secured by respondent No. 2. According to the petitioner, some irregularities were committed in the counting. The details of the irregularities have been mentioned in paragraph 2 of the election petition. It is also alleged that several corrupt practices have been committed by respondent No. 1 and his election agents and by other persons with his consent and he has obtained and/or procured the assistance for the furtherance of the prospects of his election from the persons in the service of the Government and by such corrupt practices the result of the election has been materially affected. The alleged corrupt practices said to have been committed are as follows :--

(3.) Respondent No. 1 alone filed written statement, but respondent No. 2 did not file any written statement. Respondent No. 1 in his written statement has denied all allegations made in the election petition regarding corrupt practiced, improper reception or refusal or rejection of votes and acceptance of void votes in favour of respondent No. 1 etc. According to respondent No. 1, the election petition is not maintainable as barred by limitation and is liable to be dismissed for non-compliance with the provisions of Section 83 of the Act. It is further alleged that the petition is vague and unspecific and that the irregularities in counting as alleged are false. It is further averred that an irregularity in counting in respect of Table No. 3. was detected by one of the Assistant Returning Officers who, therefore, returned all the counted bundles of votes in respect of Table No. 1 for recounting and the ballot papers were recounted by order of the Returning Officer. On scrutiny it was found that three votes which should have gone to respondent No. 1 were wrongly counted in favour of respondent No. 2 which fact has been admitted by respondent No. 1, but the petitioner has not been in any way affected by this. The petitioner or his counting agent never pointed out any irregularities in the counting process at any time. One of the counting agents of the petitioner applied for recounting of all votes on a suspicion only and on the ground that the difference in votes between the petitioner and respondent No. 1 was very small. Neither before the Returning Officer nor in the petition any allegation has been made that the result of the election in so far as it concerns the returned candidate has been materially affected by improper reception, refusal or rejection of any vote or acceptance of any vote which is void or by non-compliance with the provisions of the Act or Rules or Orders made thereunder. It is averred that recounting cannot be claimed as a matter of right nor can it be ordered simply basing on mere suspicion or because the margin of votes is narrow. The Returning Officer rightly rejected the prayer for recounting. Further it is urged that the averment made in paragraph 2 of the petition that the counting agents of the petitioner could not be present at the time of counting of votes of first 24 booths as they could not enter the room due to stampede is false and, even if it is true, it is not a ground to justify recounting. The nonattendance of the counting agents at the place and time appointed does not in law invalidate the proceedings of counting before the Returning Officer. It is false to say that respondent No. 1 has published in any of the papers that his symbol represents 'Utkal Janani'. Assuming for the sake of argument that it is true, it is submitted that this is not an appeal on the ground of race, community or language and does not constitute a corrupt practice as envisaged un-under Section 123 of the Act. The allegations that the S. D. O. Hindol Sri K. K. Bose canvassed for respondent No. 1 and that on 20-5-1980 during canvassing respondent No. 1 was present with him in a Government Jeep are false. Similarly the allegation that one Khirod Kumar Acharya worked for respondent No. l is false. The gravamen of the charge being 'obtaining' or 'procuring' the assistance of Government servants specified in Section 123 (7) of the Act, and there being no allegation of 'obtaining' or 'procuring' against respondent No. 1 or any agent with his consent, it does not make a triable issue. It is further asserted that no corrupt practice was committed in the* election by respondent No. 1 or his agents and respondent No. 1 took all reasonable means for preventing commission of corrupt practice at the election and the election was free from any corrupt practice on the part of respondent No. 1 or his agents. On the above averments dismissal of the election petition is claimed. On the aforesaid pleadings the following issues have been framed;---