KULAMANI BEHERA Vs. JAYANTA SAMAL

JUDGEMENT

(1.) THE petitioner and the opposite party No. 1 contested the election for the post of Sarpanch of Kenduapada Grama Panchayat. On 28.2.2002, the result of the said election was declared and the petitioner was declared elected. On 2.4.2002 opposite party No. 1 filed Election Misc. Case No. 100 of 2002 praying for re examination and re counting of the votes cast in the election of Sarpanch of Kenduapada Grama Panchayat, declaration of election of the petitioner as Sarpanch of Kenduapada Grama Panchayat as invalid and void and declaration that the opposite party No. 1 has secured the majority of lawful votes and that the opposite party No. 1 has been elected as Sarpanch of Kendgapada Grama Panchayat. The petitioner filed a reply or rejoinder in the said Election Misc. Case and on the pleadings of the parties, the learned Civil Judge framed issues on 12.8.2002. Thereafter, witnesses were examined On behalf of opposite party No, 1 and on behalf of the petitioner and on 16.9.2002, the learned Civil Judge passed an order for re examination and re counting of the votes. Aggrieved, the petitioner filed a civil revision C.R.P. No. 37 of 2002 in the Court of the learned Additional District Judge, Bhadrak challenging the said order dated 16.9.2002 of the learned Subordinate Judge for re counting but by judgment dated 22.11.2002 the learned Additional District Judge, Bhadrak dismissed the said revision. Aggrieved, the petitioner has filed this writ petition under Articles 226 and 227 of the Constitution praying for quashing the order dated 16.9.2002 passed by the learned Civil Judge for re counting and the judgment dated 22.11.2002 of the learned Additional District Judge dismissing the revision.

(2.) ON 3.12.2002, the Court while issuing notice of admission passed an interim order in Misc. Case No. 4097 of 2002 staying the re counting of votes. The opposite party No. 1 thereafter filed Misc. Case No. 4665 of 2002 for vacating the said interim order stating therein that the counting of votes has started and votes of seven booths out of sixteen booths have already been counted and by order dated 7.1.2003, the Court modified the earlier interim order dated 3.12.2002 and directed the learned Civil Judge to complete re counting of votes but not to pass any final order in Election Misc. Case No. 100 of 2002 and submit the result in a sealed cover to this Court. In the said order dated 7.1.2003, the Court, however, observed that the order of modification was without prejudice and subject to the rights and contention of the parties. Pursuant to the said order dated 7.1.2003, the re counting has been completed and the results of the re counting have been sent to this Court in sealed cover.

(3.) MR . Mohanty next submitted that no complaint had been filed on behalf of opposite party No. 1 as envisaged under Rule 92 C of the Orissa Grama Panchayats Election Rules, 1965 (for short, 'the Rules') nor had any motion for re counting been made on his behalf under Rule 51 of the Rules. Similarly, no complaint regarding, booth capturing and tampering at the time of election was made in terms of Rule 56 of the Rules and yet when the Court received packets containing ballot papers from the B.D.O., opposite party No. 2, there were gross discrepancies found in the packets of booth Nos. 3 and 7 which would go to show that the packets in respect of the two booths had been tampered. Mr. Mohanty argued that all these facts should have weighed with the learned Civil Judge while deciding whether to pass an order for re examination and re counting of ballot papers.