Misc. Case No. 6 of 2012 · High Court
Case Details
02. 27.08.2013 Heard learned counsel for the parties. W.P.(C) No.19298 of 2013 This writ petition has been filed by the elected Sarpanch of Barha Domanda Gram Panchayat under Rajakanika Block in the district of Kendrapara, challenging the order dated 03.08.2013, passed by the learned Civil Judge (Jr. Division), Aul, in Election Misc. Case No.6 of 2012, allowing the petition of the opposite party calling for the ballot papers for inspection and recounting. The brief facts of the case are that the present petitioner, opposite party and one Ashok Kumar Mallik contested for the post of Sarpanch of Barha Domanda Gram Panchayat, which was held on 19.02.2012. On counting of votes, the present petitioner was declared elected by a margin of 1 vote. On the application of the petitioner for recounting, the Election Officer recounted the ballots and declared the petitioner elected by a
Legal Reasoning
margin of 3 votes. Being aggrieved by the result of the election, the present opposite party filed Election Misc. Case No.6 of 2012 before the learned Civil Judge (Jr. Division), Aul, specifically pleading therein that 28 nos. of ballot papers were bearing two voting marks on two different symbols, which were liable to be rejected, has been wrongly accepted by the Election Officer and counted in favour of the petitioner, which has materially affected the result of the election. The averments made in paragraphs-6 and 7 of the election petition (Annexure-1) reads as under: “06. That the petitioner has filed this dispute for inspection of 28 number of ballot papers which bears two voting marks on two different symbols. The details of which are given below. In booth No.1, one of the ballot papers bears one voting mark on symbol “SUN” and other voting mark an another symbol for which no candidate was contested for the said post. In booth No.2, six number of ballot papers which bears one voting uks 2 mark on symbol “SUN” and other voting mark on symbol “Motor Car”. In booth No.4, Eight number of ballot papers which bears one voting mark on symbol “SUN” and other voting mark on “Motor Car”. In booth No.5, two number of ballot papers which bears voting mark on “SUN” and “Motor Car”. In booth No.6, two number of ballot papers which bears voting mark on “SUN” and “Motor Car”. In booth No.7, one ballot paper which bears voting mark on “SUN” and “Motor Car”. In booth No.8, one ballot paper which bears voting mark on “SUN” and “Umbrella”. In booth No.9, 05 number of ballot papers, which bear voting mark on symbol “SUN” and “Motor Car”. In booth No.12, two number of voter which bears voting mark on symbol “SUN” and “Umbrella”. That the aforesaid voting has been done by pre-arrangement between opposite party and voters for identification of their votes and these 28 number of ballot papers were rightly rejected by the Presiding Officers as per Rule 47 of Odisha Gram Panchayat Election Rules. The Election Officer has committed illegality accepting these 28 number of ballot papers which bears voting marks on two symbols as valid and counting the same in favour of opposite party. These 28 numbers ballot papers are liable to be rejected as per Rule-47 of Odisha Gram Panchayat Election Rule. By the illegal admission of these invalid votes in favour of opposite party the petitioner became unsuccessful on the said election though he has secured highest majority votes than the opposite party.” 07. Accordingly, the opposite party prayed as follows: “The petitioner therefore prays that this honourable court be pleased to admit this case to call for the ballot papers and other connected from Election Officer-cum-B.D.O., papers Rajkanika, for the post of Sarpanch Barha- Domanda Gram Panchayat and make inspection of voting marks and to declare 28 numbers of votes void, which bears two voting marks one on symbol “SUN” and other on symbol “Motor Car” and “Umbrella” and declared those votes as void and recount the vote of opposite party and 3 declare the election of opposite party void and declare the petitioner as elected Sarpanch of Barha-Domanda Gram Panchayat under Rajkanika Panchayat Samiti in the district of Kendrapara as he has secured majority of valid votes.” The opposite party relied upon several documents detailed in the election petition. After recording of evidence adduced by the parties, the opposite party filed an application (Annexure-3) to call for the used ballot papers for inspection and recounting on the ground that the Election Officer has committed illegality by accepting 28 number of ballots, which bear voting mark on two symbols and counting the same in favour of the petitioner which has materially affected the result of the election, especially when the margin of victory of the petitioner is only 3 votes. The opposite party also relied upon the oral evidence of witnesses and the exhibited documents in support of his claim to call for the used ballot papers for inspection and recounting. The petitioner filed his objection to the application of the opposite party to call for the used ballot papers for inspection and recounting. Learned Civil Judge, considering the materials on record, both oral and documentary, has allowed the application of the opposite party and has directed the Election Officer to produce the ballot papers for inspection and recounting, which is under challenged in the present writ petition. The case of the petitioner is that as the allegations made in the election petition regarding illegality and/or irregularity in counting of votes are vague and no material particulars have been furnished in support of such allegations, the impugned order, allowing the application of the opposite party for inspection and recounting of ballot papers is improper and illegal. In this regard, it 4 is submitted that the learned Civil Judge has failed to appreciate the pleadings of the parties as well as the evidence led by the present petitioner in course of the trial of the election case, while passing the impugned order. It is further submitted that as votes polled had already been recounted on the request of the opposite party, immediately after the counting, there was no scope for again inspecting and/or recounting the ballot papers, as the same would affect the secrecy of ballots. It is now well settled in law that an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a mater of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out. Before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking recount of the ballot papers much contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied. (See Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao & Ors, AIR 2010 Supreme Court 24). In the present case the opposite party has furnished sufficient material particulars in the election petition as well as in his application to call for the used ballot papers for inspection and recounting, as detailed above. The opposite party has adduced evidence and exhibited documents in support of his allegation that there has been irregularity and illegality in counting of votes. 5 Learned Civil Judge has taken into consideration the materials on record, both oral and documentary, in coming to hold as under: “In view of the above stated principles as advised by the Apex Court to follow, I tested the present facts and circumstances of the case with the touch stone of such guiding principles and I found that Ext.1 to Ext.14 have been filed and marked as exhibits by the petitioner. From such counting sheets variation in figures than the counting by presiding officers during the recounting made by Election Officer are apparent. Admittedly, before recounting made by the Election Officer, there was difference of only one vote between the petitioner and the Opp. Party No.1. However, during recounting substantial changes in figures came forth and the difference between the votes of petitioner and Opp. Party became 3, both the figures as put forth before me are minimal, hence I am of the humble opinion that the petitioner has proved a prima facie case in his favour. Apart from that evidences has been extended from the side of petitioner with regard to the counting in recounting process. Whatever may be the factors the minimal margin between the parties is one of the substantial cause to suspect the status of ballots which are pleaded by the petitioner that voting marks were found on two number of symbols. As such, taking into note to the present facts and circumstances, I am of the humble opinion that if the ballot papers are recounted or inspected then the proper position of votes allotted in favour of either party will be ascertained and the same is essential in the interest of justice. xx xx xx.” Applying the principle of law as discussed above to the facts of the present case, I do not find any infirmity or illegality in the impugned order of the learned Civil Judge, so as to warrant any interference.
Decision
The writ petition being devoid of merits, the same is accordingly dismissed. ……………………… S.C. Parija, J. 6 Contd…P/6 7 Misc. Case No.17749 of 2013 03. 27.08.2013 In view of the dismissal of the writ petition, no order is required to be passed. Misc. Case is accordingly disposed of. ……………………… S.C. Parija, J.