ANANDA CHANDRA OJHA Vs. ASHOK SAHOO

JUDGEMENT

(1.) The petitioner has filed this writ petition challenging the order dated 17.1.2013 passed by the teamed Civil Judge (Junior Division), Bhadrak in Election Misc. Case No. 49 of 2012 allowing the recounting of votes for the post of Sarapanch of Basanta Grama Panchayat under Bonth Block in the district of Bhadrak. Opposite party raised an election dispute challenging the election of Sarapanch of Basantia Grama Panchayat under Bonth Block. He pleaded that due to wrong folding of the ballot papers, the impression mark appeared in another symbol which was not assigned to any of the candidates and those votes were illegally rejected even though the vote was in his favour. Similarly, 7 votes were illegally counted in favour of the elected candidate though 4 votes were cast on the symbol "Umbrella" and 3 votes in the symbol "Fish". Likewise, he also pleaded that the Grama Panchayat is having 17 wards and he raised objection regarding counting of votes in respect of Ward Nos. 1, 2, 4, 5, 6, 9, 11, 12, 13, 15 and 17. He came to know about all these irregularities from the polling agents who raised objections. However, the same was not taken into consideration and the result was declared. Therefore, recounting of votes in those wards was necessary for just decision of the dispute. After receiving notice, the present petitioner appeared and filed his show-cause traversing the allegations made by the election petitioner. While the matter stood thus, another application was filed by him for recounting of votes. The petitioner filed his objection on the ground that the election petitioner did not produce or prove the allegations made by him in respect of total 29 disputed votes either through oral evidence or documentary evidence. The petitioner has examined 4 witnesses. Out of them, P.W. 2 is an agent of Ward No. 2, P.W.3 is an agent of Ward No. 17 and P.W.4 is an agent of Ward No. 15. Opposite party did not specifically aver the name of the agents, who were present in respect of the wards where the irregularities are said to have been committed. Therefore, on the said allegations, recounting and inspection should not have been directed for the purpose of fishing inquiry but the learned Civil Judge (Junior Division), Bhadrak, without passing the order for inquiring into the allegations made, in order to find out the truth has directed for counting of the ballot papers for the just decision of the case.

(2.) Mr. S.K. Nayak-2, learned counsel for the petitioner submitted that mere allegations are not sufficient to support the order for inspection of the ballot papers. Secrecy of ballot papers is sacrosanct which are to be maintained. In support of his contention, he has cited the decisions of the apex Court in the case of Vadivelu v. Sundaram and others, 2000 AIR(SC) 3230 Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and others, 2010 1 OrissaLR 66, Jitendra Bahadur Singh v. Krisnna Behari and others, 1970 AIR(SC) 276 (V 57 C 58) and the decision of this Court in the case Narayan Chandra Nayak v. Harish Chandra Jena and two others.

(3.) Mr. S.P. Mishra, learned Senior Advocate appearing for the opposite party, while supporting the impugned order submitted that the election petitioner has specifically pleaded in the election petition as well as in his application for recounting of the votes on the ground of irregularities in counting. Since the margin of votes is only 25 between the winning candidates and the election petitioner, the Court below has rightly passed the impugned order. In support of his contention, he has cited the decisions of the apex Court in the case of Sadhu Singh v. Darshan Singh and another, 2006 6 SCC 255, Virender Nath Gautam v. Satpal Singh and others, 2007 AIR(SC) 581 and the decisions of this Court in the case of Narayan Chandra Nayak v. Harish Chandra Jena, and Sri Ramji Pandey v. Smt. Jayanti Majumdar, 2006 1 OrissaLR 799.