BHAGABAN SETHI Vs. LOKANATH SETHI

JUDGEMENT

(1.) THE present writ appeal has been filed by the appellant -Bhagaban Sethi, the returned candidate, who was declared elected as a Sarpanch on polling 1342 votes as against respondent No.1 (writ petitioner) on polling 1337 votes. In other words, the appellant was declared elected for having five extra votes from respondent No.1.

(2.) SHORN of unnecessary details, it appears from the pleadings of the parties that respondent No.1 prayed for recounting of Booth No.2 of Ward No.2 and the same being illegally rejected, he ultimately filed an Election Misc. Case No.12 of 2012 before the Civil Judge (Junior Division), Puri challenging the election of the present appellant on the ground of corrupt practice, inter alia, on the ground that Prabhat Kumar Pradhan had forcibly taken away the ballot papers of Booth No.2 of Ward No.2 for which, the Presiding Officer -Sri Sankar Jena (respondent No.3) duly informed the Election Officer (respondent No.2), F.I.R. was lodged and G.R. Case No.322 of 2012 has been initiated. The Civil Judge (Junior Division), Puri on a prima facie finding that the ballots have been snatched away after counting and there was cause of action for filing of the election petition, and, after setting aside the election of the present appellant, directed for repoll of Booth No.2 of Ward No.2. This was the subject matter in Election Appeal No.2 of 2012 before the court of the District Judge, Puri, who by judgment dated 08.01.2013 confirmed the order passed by the Civil Judge (Junior Division), Puri and dismissed the Election Appeal. Challenging the said order, the appellant filed W.P.(C) No.1902 of 2013 before this Court. It also came to be dismissed by order dated 11.02.2013. Hence, the present writ appeal.

(3.) THE first issue that arises for consideration relates to as to whether the present writ appeal is maintainable. In W.P.(C) No.1902 of 2013 from which the writ appeal arises, the present appellant (writ petitioner) had made the following prayer "issue a writ in the nature of cetiorari by quashing the judgment and order dated 08.01.2013 passed in Election Appeal No.2 of 2012 by the learned District Judge, Puri as well as the judgment and order dated 23.11.2012 passed in Election Misc. Case No.12 of 2012 by the learned Civil Judge (Junior Division), Puri". The issue regarding maintainability of a writ appeal is no longer res integra, since it has been determined by a Full Bench of this Court in the case of Mahammed Saud and Ors. v. Dr. (Maj) Shaikh Mahfooz and another, 2008 2 OrissaLR 725. The following conclusions were arrived at in paragraph -47 of the said judgment: