LILI BEHERA @ MANI GHOSH Vs. PREMALATA MALLICK

JUDGEMENT

(1.) THIS writ appeal has been filed against the judgment and order of the learned Single Judge dated 11.12.2008 allowing the writ petition No. 920 of 2008 against the judgment and order of the learned Tribunal in Election Misc. Case No. 7 of 2007 dated 8.1.2008 by which the Election Tribunal had rejected the application for segregation, inspection and recounting of ballot papers.

(2.) THE facts and circumstances giving rise to the case are that the Appellant -Respondent and others were contesting for the post of Sarpanch of Serapur Gram Panchayat under Bari Block. The election was held on 7.2.2007 and the present Appellant was declared elected on 22.2.2007 by a margin of 65 votes. Respondent No. 1 filed election petition mainly on two grounds that the present Appellant did not belong to Scheduled Caste though the seat was reserved for Scheduled Caste candidates and that 100 false ballot papers were used in Booth Nos. 5 and 8 which did not even bear the signature and seal of the Presiding Officer. The election petition was contested by the present Appellant and on closing of the evidence an application was filed by Respondent No. 1 for segregating, inspecting and recounting of 100 false votes in Booth Nos. 5 and 8 on the ground that in the election 100 false ballot papers were used in Booth Nos. 5 and 8 and it was within the knowledge of the "Election Officer and it did not have the distinguishing marks on the said ballot papers nor it were signed by the Presiding Officer and it had materially affected the result. The application has been rejected by the Election Tribunal vide order dated 8.1.2008 on the ground that no pleadings had been taken as it had not been disclosed, as on what basis such allegations have been made and there was nothing on record to show as how it has materially affected the result of the election. It had not been disclosed in whose favour those votes have gone.

(3.) MR . A. Mishra, learned Counsel for the Appellant has submitted that in the/election petition no material facts had been pleaded giving any particular number of ballot papers which were false and did not bear distinguishable marks. It was not the case that there were forged, fabricated ballot papers in absence of any pleading as to, in whose favour those false ballot papers have been casted, it could not be held that result of the election stood materially affected. In case such ballot papers had been used by the voters casting their votes in favour of the election Petitioner herself, it was not permissible to argue that the result of the said votes stood materially affected. Moreso, it has not been disclosed as on what basis such allegations had been made. The grievance in the election petition was only in respect of 100 ballot papers in Booth Nos. 5 and 8. Learned Single has allowed the petition granting relief which was not even a claim of the election Petitioner before the Election Tribunal. Court cannot grant the relief, which is even asked for, The direction has been issued for recounting of all the votes of Booth Nos. 5 and 8 which is not permissible in law. It is not pointed out by the election Petitioner as to how many number of false ballots have been used in Booth Nos. 5 and 8, respectively nor it is disclosed as to what was the total number of votes casted in Booth Nos. 5 and 8. The election petition cannot be tried on such a vague pleadings. The judgment and order of the Election Tribunal should not have been interfered with by the learned Single Judge. Hence this appeal deserved to be allowed.