RABINARAYAN HATI Vs. NITYANANDA PATRA

JUDGEMENT

(1.) THE petitioner and the opp. party No. 1 contested in the election for membership of Rajnagar Panchayat Samiti from Rangani Grama Panchayat and the petitioner was declared elected. The opp. party No. 1 filed Panchayat Samiti Election Case No. 1 of 2002 before the learned Civil Judge (Senior Division ) -cum - Election Commissioner, Kendrapara, alleging inter alia that in the first count, the opp. party No. 1 polled as many as 2269 valid votes whereas the petitioner polled only 2268 valid votes, but a re -count was held illegally in which 39 number of valid votes polled by the opp. party No. 1 were rejected illegally and the opp. party No. 1 was shown to have polled 11300 and the petitioner was shown to have polled 2260 valid votes. Evidence was led by the opp. party No. 1 in support of the said allegations and a petition was filed by the opp. party No. 1 before the learned Civil Judge (Sr. Division), Kendrapara for opening of ballot paper packets of the respective booths for inspection and reference by the concerned polling agent of the opp. party No. 1 at the time of their examination in witness box. By order dated 14.8.2003, the learned Civil Judge (Sr. Division), Kendrapara, allowed the said petition and directed that the ballot packets of the respective booths be opened for inspection for reference by the concerned polling agent -witness Whose evidence was being recorded on behalf of the opp. party No. 1. Aggrieved by the said order dated 14.8.2003 of the learned Civil Judge (Sr. Division), Kendrapara, the petitioner has filed this writ petition under Articles 226 and 227 of the Constitution.

(2.) MR . Mishra, learned counsel for the petitioner vehemently submitted that no such order can be passed by the learned Civil Judge (Sr. Division), Kendrapara until the Election Officer and the witnesses on behalf of the petitioner are examined. He further submitted that in any case on the mere asking by the opp. party No. 1, the ballot packets cannot be opened and the ballots cannot be inspected by the concerned polling agent as such a practice is alien to Election law.

(3.) IT is true that if a strong case is made out by the election petitioner in pleadings as well as in evidence by showing that the margin of votes between the winning candidate and the losing candidate was small and that there was also an error or illegality committed by the Election Officer in counting, an order of inspection of ballot papers and recounting can be passed by the Election Tribunal. But, it is also well settled that strict secrecy of the ballot papers has to be maintained in a democracy and unless the Election Tribunal is satisfied on the basis of specific pleadings of the parties and the evidence led by the parties that such inspection or recount is necessary, no such order for inspection or re -count should be passed. In this case, witnesses on behalf of opposite party No. 1 are being examined and opp. party No. 1 is yet to make out case for such inspection and, at this stage, ballot packets cannot be opened for inspection and examined by the witnesses. After examining the witnesses on behalf of the opp. party No. 1 and after examining the witnesses of the petitioner, if any the Court may consider the material that has come into the record and if the Court is satisfied that a case is made out for inspection of ballot packets or re -count, the Court may pass an order for inspection and/or re -count.