HAREKA LAKHAN Vs. DISTRICT JUDGE KORAPUT

JUDGEMENT

(1.) The appellate order of the District Judge, Koraput in an election petition arising out of election of a Sarpanch of a Gram Panchayat is under challenge in this writ application. The short question that arises for consideration is, whether an Election Officer who having exercised his discretion had directed recounting of the votes for the second time could have stopped the said recounting on account of certain law and order problem having arisen and declared the result on the basis of the first recounting.

(2.) The short facts necessary for adjudicating the aforesaid dispute are that the polling for the post of Sarpanch of the Gram Panchayat took place on 26-5-1992 where the petitioner, opposite party No. 2 and opposite party No. 5 were the contesting candidates. In the initial counting it transpired that the opposite party No. 2 had polled the highest number of votes. Before declaration of the result, the petitioner filed an applicating for recounting on 27-5-1992. On that application, the Election Officer directed recounting to be held on 1-6-1992. After observing necessary formalities, recounting was held on 1-6-1992 and on recounting, the petitioner was found to have polled more number of votes than the opposite party No. 2. Opposite party No. 2 made an application on 5-6-1992 for a further recounting and the Election Officer exercised his discretion in favour of opposite party No. 2 and directed a further recounting on 14-6-1992. On 14-6-1992 when the recounting was made in respect of two booths, as the situation became uncontrollable the Election Officer decided not to continue with the recounting and ultimately declared the result on 15-6-1992 declaring the petitioner to be elected as Sarpanch having polled highest number of votes. Opposite party No. 2 then filed an election petition only on the ground that there was no valid service of notice on opposite party No. 5 when the first recounting was ordered and, therefore, the recounting was bad and also on the ground that the Election Officer having directed recounting for the second time and recounting having started on 14-5-1992, he had no further jurisdiction to stop the recounting and declare the result on the basis of previous recounting. Learned Munsif who is the Tribunal under the Act on consideration of the materials on record and the relevant provisions of the Orissa Gram Panchayats Election Rules, 1965 came to the conclusion that there had been valid service of notice so far as opposite party No. 2 is concerned since notice was served on his brother who happened to be the Election Agent and Polling Agent and had given a written undertaking on the date of first recounting that he represents his brother fully. So far as the second contention is concerned, learned Tribunal came to the conclusion that in view of second proviso to Rule 51 of the Orissa Gram Panchayat Election Rules, 1965 (for short, the'Rules] conferring absolute power on the Election Officer not to direct recounting for more than once, there was no embargo on the said power of the Election Officer to stop recounting even though he had earlier directed recounting on 14-6-1992. With these conclusions, he having found no infirmity with the declaration of result made on 15-6-1992 dismissed the election petition.

(3.) Being aggrieved by the said order of the Election Tribunal, opposite party No. 2 moved in appeal to the District Judge. The District Judge being of the opinion that the Election Officer could not have riggled out of his earlier order directing a second recounting and had committed an error in stopping recounting after recounting was done for the second time in respect of two booths, interfered with the ultimate result declared by the Election Officer and directed a fresh recounting as was ordered by the Election Officer himself on 5-6-1992. It is this order of the appellate authority which is being challenged in this writ application.