RABINARAYAN HATI Vs. NITYANANDA PATRA

JUDGEMENT

(1.) Heard Mr. S.K. Dash, learned counsel for the petitioner and Mr. P.K. Routray, learned counsel for opposite party No.1

(2.) This writ petition has been filed by petitioner challenging to the judgment delivered on 05.07.2005 by learned District Judge, Cuttack in Election Appeal No.4 of 2005.

(3.) Opposite Party No.1 filed Panchayat Samiti Election Case No.1 of 2002 in the Court of Civil Judge (Sr. Division), Kendrapara. Petitioner in this case and the opposite party No.2 respectively appeared as opposite party Nos.1 and 2 in that Election Case. They are described as such in this order. The election petitioner alleged that on the first counting he was declared to be elected and after that result was declared, on the request of the opposite, party No.1 (writ petitioner) recounting was done and the said opposite party No.1 was declared elected. Accordingly a notification was published notifying that opposite party No.1 was duly elected as Panchayat Samiti Member of Rangani Gram Panchayat of Rajnagar Panchayat Samiti. Election petitioner also claimed for declaring him as the elected candidate having secured the highest valid votes. After his appearance, opposite party No.1 filed an application under Section 44 (I) of the Orissa Panchayat Samiti Act, 1959 (in short 'the Act') for recrimination. Issues were settled, evidence was accepted, both oral and documentary, from the election petitioner and the opposite party No.1 and on appreciation of the same learned Civil Judge decided the case in favour of the election petitioner on the ground that in view of the statutory provision in Rule 31(7) of the Orissa Panchayat Samiti Election Rules, 1991 (in short 'the Rules') there could not have been recounting after declaration of result. He also counted the ballots and concurring with the first counting declared that election petitioner was duly elected. Opposite party No.1 challenged that judgment of the learned Civil Judge in Election Appeal No.4 of 2005 in the Court of the District Judge, Cuttack. Learned District Judge, as per the impugned judgment, concurred with the aforesaid finding and dismissed the appeal. We note that in paragraph-4 of the impugned judgment learned District Judge took note of the contention raised by the appellant and in paragraph-5 of the impugned judgment he noted the admitted factual aspect involved in the case.