JAGANNATH DHAL Vs. DISTRICT JUDGE SELESORE

JUDGEMENT

(1.) Original decision of learned Munsif, Bhadrek and appellate order of District Judge, Selesore in an election dispute raised under Orissa Gram Panchayat Act, 1964 (in short, the 'Act') and Orissa Gram Panchayat Election Rules, 1965 (in short, the 'Election Rules') is the subjectmatter of challenge in this writ application. Petitioner Jagannath Dhal, opposite party No. 3 Manos Ranjan Barik and opposite party No. 4 Ashok Kumar Puhan were contestants for the office of Sarpanch of Panchani Gram Panchayat. Two others namely, Muktikanta Sahu and Biswamber Puhan withdrew their candidature after having filed nomination papers. Ultimately therefore, there were three contestants in they field. Manos was allotted symbol of umbrella, while Jagannath and Ashok were allotted symbols of fish and bird respectively. Though Biswamber and Muktikanta had withdrawn their candidature, symbols that were originally allotted them namely, Sun and cow head were printed on the ballot papers, but were cancelled. Polling took place on 5-6-1992 and 9-6-1992. In total 1897 voters cast votes on 16-4-1992, Block Development Officer, Dhasnagar, who was the Election Officer declared that Manos owned 851 valid votes, while Jagannath and Ashok owned 849 and 115 valid votes respectively. 79 votes were rejected. Jagannath applied for recounting and re-examination of ballot papers and on 14-6-1992 votes were recounted. After recounting, the Election Officer declared that both Manos and Jagannath have polled equal number of valid votes, i.e. 842 votes each and thereafter lots were drawn, and Jagannath was declared to the office of Sarpanch. The number of invalid votes was held to be 95. Manos filed an election petition under Section 31 of the Act before the learned Munsif, Bhadrak. The basis for such challenge was the allegation that there was improper rejection of about 25 valid votes cast in favour of Manos, and there was improper admittance of about 60 rejected votes cast in favour of Jagannath, further, allegations of resort to corrupt practice was made. It was pleaded that the Election Officer did not comply with various provisions of the Act and Election Rules. Jagannath denied the allegations and supported action of the Election Officer, Ashok did not choose to contest.

(2.) Learned Munsif held that election of Jagannath was invalid and, accordingly Manos was declared to have been duly elected to the office of Sarpanch. Jagannath assailed the correctness of conclusions before learned District Judge, Selesore in an appeal under Section 38(4) of the Act. The appellate authority confirmed the conclusions of learned Munsif. The conclusions of learned Munsif and learned District Judge were as follows:

(3.) In support of the writ application, learned counsel for petitioner submitted that the conclusions of the Courts below are erroneous. With reference to four votes which were treated to be valid, it is submitted that they contained marks which clearly indicated that they were intended to be cast in favour of the petitioner. So far as two votes which have been taken to the credit of Manas, it is submitted that they were intended to be cast in favour of Manos. Though symbols were scored through in case of persons who withdrew their candidature, some of the voters had put their marks on symbols originally allotted to them. This shows that the voter was not very sure about their presence in the field. If voters were not aware that two persons were not in the field, that itself shows that voting was not done in a regular and proper manner. Fairly large number of votes were cast in respect of the persons who had withdrawn their nominations. It is urged that ballot should not be rejected if the mark on it indicates the person in whose favour it was intended to be cast. Learned counsel for Manos however, supported the conclusions of the Courts below.