PITAMBARA DAS Vs. RANJAN KUMAR BEHERA

JUDGEMENT

(1.) This Writ Petition has been filed by the petitioner challenging the order dtd. 23.3.2013 under Annexure-1 passed by the learned Civil Judge (Junior Division), Aska in Election Petition No. 2 of 2012 allowing the petition filed by opposite party No. 1 for recounting of votes in respect of Booth No. 15 of Dhanantara Grama Panchayat under Sheragada Block in the district of Ganjam. The brief facts of the case are that the petitioner and opposite party No. 1 were the candidates for election to the post of Sarapanch of Dhanantara Grama Panchayat under Sheragada Block in the district of Ganjam, which was held on 13.2.2012 and in the said election the petitioner was elected to the post of Sarapanch of the said Grama Panchayat. Being aggrieved opposite party No. 1 filed a petition under Section 31(1) of the Odisha Grama Panchayat Act before the learned Civil Judge (Junior Division), Aska with a prayer to declare the election of the petitioner to the post of Sarapanch of Dhanantara Grama Panchayat as void by recounting the votes polled and declare opposite party No. 1 as elected to the post of Sarapanch of the said Grama Panchayat since he has secured highest votes than the petitioner in the said election, which was registered as Election Petition No. 2 of 2012. The case of Opposite party No. 1 Is that for election to the post of Sarapanch of Dhanantara Grama Panchayat there was 15 numbers of booths and after closure of polling, the votes polled in the respective booths were counted in presence of election agents of the parties. In the said election, opposite party No. 1 has got 1379 number of votes whereas the petitioner has got 1359 number of votes. Though opposite party No. 1 got 38 votes more than the petitioner, on 21.2.2012 during official declaration of result at Sheragada Panchayat Samiti, the Election Officer-cum-Block Development Officer, Sheragada announced that the petitioner has won the election by a margin of 38 votes. After declaration of result, opposite party No. 1 filed an application before the Election Officer with a prayer to recount the votes in respect of Booth No. 15 of Sheragada Grama Panchayat as he has got 134 number of votes from the said Booth whereas the petitioner has got 97 number of votes but due to wrong recording in the result sheet that opposite party No. 1 has got 97 number of votes and the petitioner has got 134 number of votes, the petitioner has been illegally declared as elected to the post, of Sarapanch of Dhanantara Grama Panchayat. As the Election Officer refused to recount the votes, opposite party No. 1 approached the District Election Officer-cum-Collector, Chatrapur, but the said authority also did not take any step for recounting of the votes. Thereafter, opposite party No. 1 filed Election Petition No. 2 of 2012 before the learned Civil Judge (Junior Division), Aska with a prayer to declare the election of the petitioner as Sarapanch of Dhanantara Grama Panchayat to be void and also filed a petition for recounting of the votes polled in respect of Booth No. 15 of the said Grama Panchayat as opposite party No. 1 has secured highest votes than the petitioner in the said booth. The Court below, after hearing learned counsel for the parties by order dtd. 02.2.2013, allowed the application filed by opposite party No. 1 for recounting of the ballot papers without assigning any reason thereof, which was challenged before this Court by the petitioner in W.P. (C) No. 3174 of 2013. This Court by order dtd. 07.3.2013 while disposing of the said Writ Petition set aside the order dtd. 02.2.2013 and directed the Court below to reconsider the matter taking into consideration the materials available on record and the position of law as discussed in the said order. In pursuance of the order dtd. 07.3.2013, the Court below after considering the materials available on record and the position of law discussed by this Court therein, by the impugned order dtd. 23.3.2013 in Election Petition No. 2 of 2012 directed recounting of ballot papers and further directed the Election Officer-cum-Block Development Officer, Sheragada to produce the preserved and sealed used ballot papers along with Form No. 7-B, 8-A in respect of Booth No. 15 of Dhanantara Grama Panchayat in sealed condition in a box, which is challenged in this Writ Petition by the petitioner.

(2.) Mr. Rath, learned counsel appearing for the petitioner submitted that a party seeking recounting of ballot papers is not only to make out a case with sufficient pleadings in the Election Petition but also to adduce clear evidence justifying the prayer for recounting but the Court below passed the impugned order without considering the fact that opposite party No. 1 has not made out a case both on pleadings and evidence, as such the impugned order is liable to be set aside. He further submitted that the agent of opposite party No. 1 though admitted in the cross-examination that opposite party No. 1 has got 97 votes in respect of Booth No. 15 of Dhanantara Grama Panchayat and the petitioner has got 134 votes, the Court below while passing the impugned order did not consider the said fact. He also submitted that though opposite party No. 1 has made specific allegation of corrupt practice in the Election Petition with regard to improper filling up of the forms by a public servant but he has not proved the same by examining the concerned R.O. and as such the Court below committed gross error by observing in the impugned order that there is no allegation of corrupt practice. It is stated that the observation of the Court below at the end of paragraph-13 of the impugned order that opposite party No. 1 has filed application vide Ext. A on the very next day of declaration of result for recounting of votes in respect of Booth no, 15 shows his promptness to bring the notice of the Election Officer regarding the irregularity and illegality committed in Booth No. 15, hence, bereft of his pleading opposite party No. 1 has laid the basic foundation for recounting, which is not sustainable in law.

(3.) Mr. Samantaray, learned counsel appearing for opposite party No. 1 submitted that opposite party No. 1 has filed the Election Petition under Section 31(1) read with Section 39(2) of the Odisha Grama Panchayat Act and Section 39(2) of the said Act which mandates that the election shall not be declared void merely on the ground of any mistake in the forms regulated thereby or of any error, irregularity or informality on the part of the Officer or Officers charged with carrying out the provisions of the Act or of any rules made thereunder unless such mistake, error, irregularity or informality has materially affected the result of the election. Opposite party No. 1 has specifically pleaded in the election petition that the result of the election has been materially affected as the number of votes cast in his favour has been counted in favour of the petitioner and the votes cast in favour of the petitioner have been counted in favour of opposite party No. 1 due to mistake on the part of the Election Officer. He further submitted that there is no allegation of corrupt practice as defined under Section 41 of the Act and recounting of votes polled in respect of Booth No. 15 of Dhanantara Grama Panchayat was prayed for by opposite party No. 1 to find out and rectify the mistake only. He also submits that the pleadings of opposite party No. 1 in the Election Petition with regard to mistake committed during the process of recounting of votes has been supported by the evidence adduced by opposite party No. 1 as P.Ws. 1 and 2, who was the Polling and Counting Agent of Opposite party No. 1. It is submitted that as the pleadings of opposite party No. 1 has been supported by evidence to make out a case for recounting of votes, the mistake committed by the Election Officer has materially affected the election as per provisions of Section 39(2) of Odisha Grama Panchayat Act. Therefore, the Court below has rightly passed the impugned order for recounting of votes and the same does not call for any interference. It is further stated that the Court below has not correctly recorded the deposition of P.W.2 while he was cross-examined by the petitioner.