MOHANRAJ BOID Vs. ESWAR CHARAN PATNAIK

JUDGEMENT

(1.) This is an application for a writ of certiorari directed against the final order of the Election Tribunal (District Judge of Koraput at Jeypore) made under the Orissa Municipal Act of 1950.

(2.) Petitioner and opposite parties 1 and 4 were candidates for election to the Jeypore Municipal Council from Ward No. 9. The nominations of all these three persons having been accepted on scrutiny, they participated in the election, polling whereof took place on 30th of May, 1973. Opposite party No. 2, the Election Officer, took up counting of the ballot papers on 2-6-1973 and declared opposite party No. 1 elected on the footing that opposite party No. 1 secured 193 votes, petitioner secured 186 votes and opposite party No. 4 secured 108 votes. 60 ballot papers were rejected as invalid. Petitioner filed an election petition under the provision of Section 19 of the Orissa Municipal Act, 1950, before the Tribunal, opposite party No. 3, challenging the election of opposite party No. 1 on the ground that 24 ballot papers which had been validly cast in favour of the petitioner were improperly rejected by the Election Officer and if the petitioner had been given due credit of those ballot papers he would have been declared as the returned candidate. Petitioner submitted that these 24 ballot papers bore horizontal marks within the space allotted in favour of the petitioner on the ballot papers. These horizontal marks had been placed by the electors using the voting instrument on the wrong side. 12 of the rejected ballot papers similarly bore horizontal marks credit whereof should have been given to opposite party No. 1. Opposite party No. 1 took the stand that the horizontal marks do not manifest the intention of the voters in favour of a candidate against whose allotted space the marks appear. It was further contended that the result of the election was not materially affected by rejection of the ballot papers.

(3.) The Tribunal framed the following issues:-"( 1) Whether 24 votes were cast in favour of the petitioner and were wrongly rejected, as stated by the petitioner? (2) Is the petition bad for non-joinder of party? (3) To what relief, if any, is the petitioner entitled?" Each of the contesting parties examined himself as a witness in his support. The ballot papers were called for from the Election Officer. During the enquiry, petitioner gave evidence to support his plea and when the recording of evidence was over, an application was filed on behalf of the petitioner for scrutinising the ballot papers with a view to find out whether the counting had been properly done and the rejection of ballot papers was appropriate. Recounting was not made and the Tribunal dismissed the application by holding that the petitioner failed to establish that 24 ballot papers had horizontal marks in the space provided for him, the credit of which he could legitimately claim. This writ application is directed against the said order of rejection of the Election Tribunal.