DINABANDHU JANI Vs. HEMANTA KANHAR

JUDGEMENT

(1.) IN this writ petition, the petitioner, who happens to be the election petitioner in Election Petition No.1 of 2012 of the court of Civil Judge (Junior Division), Phulbani has assailed the order passed by the said court on 16.01.2013 rejecting the application to call for the ballot papers, counter foils and to summon the Anganwadi Worker to produce the Birth and Death Register.

(2.) THE petitioner and opposite party no.1 were the candidates for the post of Sarpanch of Dutipada Gram Panchayat in the district of Kandhamal. The petitioner challenged the election of opposite party no.1, i.e. returned candidate on the ground that by using muscle power the returned candidate has managed to obtain fake votes in his favour and also has cast vote in the names of some dead persons. At the beginning of the trial the election petitioner filed an application for calling for the counter foils, ballot papers etc. but the same was rejected by the learned Civil Judge (Junior Division), Phulbani holding that the petition has been filed at a premature stage. Thereafter, the petitioner led evidence, examined 25 witnesses and exhibited several documents. Thereafter, the returned candidate also examined witnesses on his behalf. When the case was posted for argument the petitioner filed an application to call for certain documents like ballot papers, counter foils etc and also to direct Anganwadi Worker to produce the birth and death register of the Jamojhori Anganwadi Centre. Such application was resisted by the returned candidate on the ground that the petition is not maintainable as no step has been taken by the election petitioner under Rules 44 and 51 of the Orissa Grama Panchayat Election Rules, 1965 (for short 'the OGP Election Rules') and that the petition is based on conjecture and surmise.

(3.) IN assailing the order passed by the learned Civil Judge (Junior Division), Phulbani, the learned counsel for the petitioner submitted that the order is based on wrong appreciation of facts. It is submitted that there is adequate pleading in the election petition regarding the cast of fake votes in favour of voters by dead persons. It is further submitted that such fact has already been shown adequately by the petitioner by leading evidence to that effect. The learned counsel for the opposite party no.1, on the other hand, submitted that the petition for calling for the document is without merit as there has been non-compliance of Rules 44 and 51 of the O.G.P. Election Rules and there was no objection at the time of counting of votes regarding such fraudulent practice adopted by the returned candidate. It is further submitted by learned counsel for the opposite party no.1 that the petition filed by the petitioner does not satisfy the requirements of the law laid down by the Supreme Court for calling for the ballot papers and counter foils and, therefore, the same should be rejected.