MAKARDHWAJA MOHANTY Vs. DHARMABIRA KANUNGO

JUDGEMENT

(1.) The petitioner, who is the elected Sarpanch of "Uttaran" Gram Panchayat of Kantapada Block in the district of Cuttack has assailed the legality and correctness of the order dated 05.12.2013 in Annexure-3 passed by the leaned Civil Judge (Jr. Division) 2nd Court, Cuttack in Election Misc. Case No.08/2012 directing to issue a letter to B.D.O.-cum-Election Officer, Kantapada Block to remain present on 07.12.2013 with the key of the sealed box containing marked copy of electoral roll, ballot papers and other documents relating to Kantapada Block sought to be proved by the petitioner.

(2.) The short fact of the case in hand is that the petitioner was elected as Sarpanch of "Uttaran" Gram Panchayat under Kantapada Block pursuant to election held on 19.02.2012 and held the office of the Sarpanch by discharging his duty till date. The opposite party being the defeated candidate assailed the election of the petitioner raising a dispute by filing Election Misc. Case No.08/2012 before the learned Civil Judge (Jr. Division) 2nd Court, Cuttack praying therein to declare the election of the writ petitioner as void and to set aside the same and to declare the election petitioneropposite party herein to be duly elected to the office of the Sarpanch of "Uttaran" Gram Panchayat after inspecting and recounting the ballots.

(3.) The case of the election petitioner-opposite party herein is that pursuant to election held on 19.02.2012 counting was held by the respective Presiding Officers in respective booths after polling was over and the result of counting was recorded in Form 8-A. In the said Form 8-A, it is stated that the writ petitioner had secured 1267 votes whereas the election petitioner-present opposite party secured 1270 votes. Therefore, the election petitioner secured three numbers of more votes than the writ petitioner. On 21.02.2012 in the Block Office, the Election Officer totaled the election results received from different Presiding Officers in Form 8-A and found that the election petitioneropposite party has received 1270 votes where as the writ petitioner received 1267 votes. Therefore, the election petitioner-opposite party was declared to have won the election by margin of three votes. But the formal declaration of the result of the election was challenged by the election petitioner for which recounting was done and it was found that while recounting, the Election Officer rejected two valid votes (one in Ward No.5 and one in Ward No.6) of election petitioner-opposite party and added six votes in favour of the election petitioner. Thus despite of two improper rejections the present opposite party-election petitioner had received 1274 votes. So far as the writ petitioner is concerned, during recounting the Election Officer rejected three numbers of votes. Therefore, his votes became 1264 but improperly and illegally the Election Officer added twelve votes in favour of the writ petitioner as a result of which his total number of votes became 1276. As a result, the writ petitioner was declared elected to the post of Sarpanch of "Uttaran" Gram Panchayat by a margin of two votes only. Hence, the election petitioner-opposite party filed Election Misc. Case No. 08/2012 before the learned Civil Judge (Jr. Division) 2nd Court, Cuttack with a prayer to declare the election of the writ petitioner as void and to set aside the same and further to declare the election petitioner-opposite party to be duly elected Sarpanch of "Uttaran" Gram Panchayat having received majority of valid votes.