NIHAR RANJAN BISOI Vs. ELECTION TRIBUNAL CUM DISTRICT

JUDGEMENT

(1.) THE petitioner assails the order dated 1.8.2005 passed by the District Judge, Koraput, Jeypore in election Petition No. 4 of 2003 wherein he ordered for recounting of the ballot papers.

(2.) THE petitioner was opp.party No. 1 and opp.party No. 3 was the petitioner in the aforesaid case before the Court below. The petitioner was a candidate on behalf of the Congress Party in the last Municipal election from Ward No. 12 of Jeypore Municipality and opp. Party No. 3 who was declared elected as a councillor was a B.J.D. Party candidate. Two other candidates (opp. Parties 2 and 4) contested the said election. Polling was held on 19.9.2003 from 8.00 A.M. to 5.00 P.M. and counting took place on 20.9.2003 on which date result of the election was declared by the Returning Officer and opp.party No. 3 was declared to be elected as a councillor by a margin of seven votes against the petitioner. The petitioner filed the aforesaid election Petition inter alia on the ground that fake votes were polled in the names of five dead persons, two mentally retarded persons and some absentee electors. The petitioner and opp.party No. 3 examined three witnesses each. Opp. Party No. 5, the Election Officer -cum -Sub -Collector, Jeypore also examined two witnesses. As it appears, the petitioner filed a petition to recount the ballot papers. After assessing the evidence on record the Court below came to a conclusion that the petitioner (hereinafter referred to as 'opp.party No. 3') prima facie established that votes were cast in the name of some dead persons and some absentee electors. Since a case for recounting of ballot papers was properly made out by opp.party No. 3 who was defeated by a margin of only seven votes, placing reliance on a number of decisions including the decisions of Hon'ble Supreme Court, the Court below allowed the petition and directed for recounting of the ballot papers vide order dated 1.8.2005. Being aggrieved with this order opp.party No. 3 (hereinafter referred to as 'the petitioner') filed the present writ petition against the election petitioner as mentioned above.

(3.) PER contra learned Counsel appearing for opp.party No. 3 submitted that no doubt maintenance of secrecy of ballot is sacrosanct, but maintenance of purity of election is equally important. In the instant case there is specific pleading in the Election Petition that fake votes were cast in the names of five dead persons, two mentally retarded persons and some absentee electors which has also been prima facie established in evidence. So it is wrong to submit that there is no specific pleading in the writ petition with regard to the polling of fake votes. Accordingly he pressed to dismiss the writ petition.