AKSHAYA MOHANTY Vs. ASHOK DAS

JUDGEMENT

(1.) THE Petitioner was declared elected as Chairman of Gondia Panchayat Samiti. His election was challenged by the Opp. Party No. 1 in Election Petition No. 28 of 2007 before the Learned Civil Judge (Senior Division), Dhenkanal on the grounds, inter alia, that despite the objection raised by him before the Election Officer - Opp. Party No. 2 that 7 to 8 ballot papers were liable to be rejected on account of visible signs or marks present therein so as to identify the respective voters, but the Opp. Party No. 2 improperly counted the votes in favour of the successful candidate (Petitioner). After closure of evidence from both the sides, the Election Tribunal on scrutiny of the ballot papers declaring the election of the Petitioner as Chairman to be null & void, declared the Opp. Party No. 1 to have been successfully elected to the post of Chairman. Aggrieved by the Judgment passed by the Election Tribunal, the Petitioner preferred an appeal registered as FAO No. 7 of 2008 before the Learned District Judge, Dhenkanal. The Learned District Judge upon hearing of the said appeal confirmed the Judgment of the Election Tribunal. Being aggrieved, the Petitioner has approached this Court in the present Writ Petition for appropriate relief.

(2.) LEARNED Counsel for the Petitioner raised a preliminary question with regard to maintainability of the election dispute, inter alia, contending that under Chapter -6(A) relating to election dispute in Orissa Panchayat Samiti Act, 1958 (hereinafter referred to as 'the Act') , there is no provision to question the election of a person as Chairman of a Panchayat Samiti. For convenience, this Court, therefore, feels it appropriate that before entering into the merit of the case, the following question should be addressed....

(3.) IT would be appropriate to know that issues are framed on the pleadings of the parties with regard to questions which are controverted. It was never pleaded by the Petitioner that the ballot papers have been kept in envelopes without being sealed. Thus, question of controverting such a plea by the Opp. Party No. 1 & framing of an issue to that effect did not arise in the case. It is also a settled position of law that when parties have adduced evidence on a particular question, even if no issues have been framed, the Court can answer the said question in the Judgment. In the instant case, the Court below has given a finding that the Petitioner failed to substantiate his assertion that the ballot papers were subsequently tampered. This being a finding of fact, the same cannot be dislodge in a Writ Petition. It is further found that the Election Tribunal as per Order Dated 11.9.2007 directed recounting & scrutiny of 27 Nos. of used ballot papers for an effectual adjudication of the matter. The said order was challenged by the Petitioner before this Court in W.P.(C) No. 11744 of 2007. The said Writ Petition being dismissed on merit, the Petitioner challenged the said order in Writ Appeal No. 1 of 2008, which was also dismissed. Being unsuccessful, the Petitioner questioned the said Order before the Apex Court in SLP (Civil) No. 1731 of 2008. The Apex Court also dismissed the said SLP vide Order Dated 4.2.2008. The order for recounting of the ballot papers having been, thus confirmed, the said ballot papers were scrutinized in presence of both the parties by the Election Tribunal on 22.2.2008 & the result was reduced to writing in a separate memorandum which has been marked as Ext. 1. The Election Tribunal found that the valid votes in favour of the Petitioner were reduced to 6 & 12 votes were found valid to have been cast in favour of the Opp. Party No. 1. The Lower Appellate Court has confirmed the order of the Election Tribunal, as stated above. I, therefore, find no reason to interfere with the same.