LAXMIBALA BOHIDAR Vs. JANAKI PATTANAIK

JUDGEMENT

(1.) Heard learned counsel for the parties. In this appeal, the appellant has challenged the judgment dated 4.10.2012 passed by the teamed Addl. District Judge, Kuchinda in Election Dispute Case No. 1/1 of 2012 allowing the election petition by directing the Collector, Sambalpur and B.D.O.-cum-Election Officer, Jamankira to recount the votes cast by each of the voters in 131 polling booths of Jamankira Zone-I Zilla Parishad Constituency within three months of receipt of the order, in presence of both the parties or their agents including the defeating candidate Smt. Manjulata Choudhury of Bharatia Janata Party, if she desires to participate in the counting process either by herself or through her agent and pronounce the result under intimation to the Court.

(2.) The facts as narrated on the records are that the appellant contested the election for the post of Zilla Parishad of Jamankira Zone-I Zilla Parishad Constituency, Sambalpur on behalf of Indian National Congress Party held on 13.2.2012. The respondent was contesting as a candidate on behalf of Biju Janata Dal and one Manjulata Choudhury was also contesting as a candidate on behalf of Bharatiya Janata Party. In the said election appellant won by a margin of 69 valid votes than the respondent. Challenging the said election, the respondent filed an Election Dispute Case before the competent Court under Section 32 of the Orissa Zilla Parishad Act to declare the election of the appellant as void and to declare her as elected. In the Election Dispute, the respondent further prayed to issue direction to the B.D.O.-cum-Election Officer, Jamankira to produce all the ballot papers used in respect of Jamankira Zone-I election for inspection and verification of the Court and further prayed for recounting, re-verification of the ballot papers under the supervision of the Court.

(3.) Learned counsel for the appellant submits that the respondent (election petitioner) has not pleaded in the election petition regarding how many numbers of vote were rejected and he has also not pleaded the material particulars in the election petition. Therefore, the Court below should not have directed for recounting of the ballot papers as there were no materials available on the record for recounting. He further submits that the respondent has also not specifically stated in her deposition before the Court below that how many votes were rejected illegally and who was the polling agent committed such illegality while counting the votes. Learned counsel for the appellant also produces the certified copy of the election petition as well as the copy of the deposition of the parties before this Court. In support of his contention, he cited the decisions (Katinokkula Murali Krishna v. Veeramalla Koteswara Rao and others, 2010 1 OrissaLR 66 (Ananda Chandra Ojha v. Ashok Sahoo, 2013 1 OrissaLR 575 ), (P.K.K. Shamsudeen v. K.A.M. Mappillai Mohidneen and others, 1989 AIR(SC) 640), (D.P. Sharma v. The Commissioner and Returning Officer and others, 1984 AIR(SC) 654) (Kishore Mohanty v. Birendra Chandra Pandey and others, 1999 2 OrissaLR 78).