SANDHYARANI JENA Vs. JHILI JENA

JUDGEMENT

(1.) IN the present writ petition, the petitioner challenges the order dated 15.09.2012 (Annexure-5) passed by the learned Civil Judge (Junior Division), Anandapur in Election Misc. Case No.4 of 2012 in rejecting the prayer of the petitioner for re-counting the votes cast in respect of election of Ward Member of Ward No.17 of Madanpur Grama Panchayat on the ground that the said order suffers from non-application of judicial mind, against the weightage of materials available on record and therefore, liable to be quashed.

(2.) PETITIONER 's case is that the election to the post of the Ward Members of Madanpur Grama Panchayat was held on 11.02.2012. In the said election, the writ petitioner and opposite party No.1 contested for the post of Ward Member of Ward No.17 under Madanpur Grama Panchayat of Ghasipura Block in the district of Keonjhar. The election symbol of the petitioner was "NIKITI" and the symbol of opposite party No.1 was "SAGADA". There was only one Booth for casting of votes and votes were counted by the Presiding Officer in the Booth after voting was over on the very date of Election held on 11.02.2012. It is alleged that at the time of counting, the supporters of opposite party No.1 at the instance of opposite party No.1 over-powered the Polling staff including the Presiding Officer in the Booth, dominated the entire scenario of counting and mobilized the Presiding Officer and Polling Officer to play into their hands, whims and caprices. About 38 votes which would have been rejected were counted in favour of opposite party No.1 and about 40 votes which would have been counted in favour of the petitioner were rejected. On 21.02.2012 the Election Officer announced the election result declaring opposite party No.1 elected as Ward Member of Ward No.17 of Madanpur Grama Panchayat. The Election Officer also declared that the petitioner had secured 138 valid votes and the opposite party No.1 had secured 176 valid votes. But actually the petitioner had secured 176 votes and opposite party no.1 had secured 138 votes. After declaration of result, the petitioner submitted a petition before the Election Officer for re-examination and recounting of votes, but the Election Officer turned down the petition of the petitioner and did not re-examine and recount the votes. Thereafter, petitioner filed the election petition. Legality and validity of the impugned order is challenged in the present writ petition.

(3.) MR . Das, further submits that it is not humanly possible to remember the number of any ballot papers at the time of counting. The findings of the learned Tribunal that the petitioner has not set forth material facts or particulars required for counting of votes and tried to make a roving and fishing inquiry of ballot papers are equally perverse. The petitioner in fact has made out a prima facie case for recounting of ballot papers. The impugned order suffers from pre-judging the issue involved in the Election Petition and thereby seriously affects the decision on the said issue resulting in dismissal of the Election Petition. Mr. Das, concluding his argument submitted that the impugned order under Annexure-5 passed rejecting the prayer for recounting of votes is liable to be set aside as the same is a total product of non-application of mind.