BASANTI DAS Vs. KAMALA NAYAK

JUDGEMENT

(1.) In this writ petition the petitioner has challenged the judgment dated 29-1-1998 passed in Misc. Appeal No. 63 of 1997 by the learned Additional District Judge, Bhadrak confirming the judgment dated 30-8-1997 passed by the learned Civil Judge (Junior Division), Bhadrak in Election Misc. Case No. 31 of 1997.

(2.) The facts giving rise to this petition are as follows :-The writ petitioner contested for the post of Ward Member of Ward No. 7 of Grade Grama Panchayat against he opposite party Nos. 1 and 3 in the election held an 15-1-1997. In the said election, the petitioner was allowed with the symbol 'Scale' (Nikiti) and opposite party Nos. 1 and 3 were allotted with the symbol "Bullock Cart" (Gagada) and 'Pen' (Kalams) respectively. It is alleged that the opposite party No. 1 secured 55 valid votes but, as one such valid vote was illegally declared invalid, the valid votes determined in her favour came to 54 despite her protest. It is further alleged that though the present petitioner got 53 valid votes in her favour by accepting an invalid vote as a valid one, the total number of votes cast in her favour was determined at 54 votes despite the protest of the opposite party No. 1. The opposite party No. 3 secured 23 valid votes. As the valid votes cast in favour of the present petitioner and the opposite party No. 1 were found to be equal in number, the Presiding Officer declared the writ petitioner elected by resorting to lot. Being aggrieved by the aforesaid result declared by the Presiding Officer, the present opposite party No. 1 filed Election Misc. Case No. 31 of 1997 before the learned Civil Judge (Junior Division), Bhadrak to set aside the election of the writ petitioner and to further declare the present opposite party No. 1 to have been elected as the Ward Member of Ward No. 7. Before the learned Civil Judge (Junior Division), the writ petitioner filed her written statement controverting the allegation and supporting the result declared by the Presiding Officer. The learned Civil Judge after recording the evidence and hearing the present petitioner and opposite party No. 1, allowed the Misc. Case on contest against the writ petitioner and ex parte against opposite party No. 3 declaring the election of the writ petitioner as Ward Member of Ward No. 7 of Grade Gram Panchayat void and further declaring the present opposite party No. 1 to have been elected as such ward Member. Against the order passed by the learned Civil Judge (Junior Division), the present petitioner preferred Misc. Appeal No. 63 of 1997 before the learned Additional District Judge, Bhadrak. The learned Addl. District Judge after hearing the parties dismissed the said Misc. Appeal confirming the order of the learned Civil Judge (Junior Division). Being No. 63 of 1997, the petitioner has come up with this petition challenging the legality of the impugned order.

(3.) On behalf of the petitioner it is contended that the learned Civil Judge has gone beyond the pleadings of the opposite party No. 1 and recounted the votes cast in favour of the petitioner, rejected two of her valid votes and declared her election as ward Member to Grade Gram Panchayat from Ward No. 7 void and declared the opposite party No. 1 elected as ward Member of the said ward. According to the learned counsel for the petitioner, the present opposite party No. 1 is estopped from claiming of votes as she consented to declare the result of the election by lot. According to him, the recounting is against law and should not have been adopted by the Learned Civil Judge. It is further contended that the learned District Judge without considering whether or not an order of recounting is imperative under the circumstances of the case decided to recount the votes relying on the provisions of Section 39 of the Orissa Gram Panchayat Act which is not proper. The learned counsel for the opposite party No. 1 on the other hand supported the impugned order and contended that in absence of anything to show that the procedure followed by the trial Court and the appellate Court are wrong, no interference under Art. 226 is permissible.