The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.9336 of 2023 (An application under Article 226 and 227 of the Constitution of India) Smt. Sabita Jena …. Petitioner -versus- Smt. Kamala Jena …. Opposite Party Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
considered here are prima facie case made out in favour of the election petitioner and secondly, whether the objections have been raised at the preliminary stage. The Hon’ble Supreme Court in the case of Mahant Ram Prakash Dass v. Ramesh Chandra and Others, (1999) 9 SCC 420 have explained as follows:- WP(C) No.9336 of 2023 Page 3 of 7 “13. A candidate or his agent has an opportunity to ask for re-count at two stages: the first, before election result is finally declared, and the second, by way of election petition before the High Court. An application under Rule 63(2) of the Conduct of Elections Rules is to be given immediately after the votes secured by each of the candidates is announced under Rule 63(1), but such an application cannot be given after the candidate is declared elected under Rule 64. If an application is made under Rule 63(2) the Returning Officer shall decide the matter either by allowing the application in whole or in part or may reject it in its entirety, if it appears to him to be frivolous or unreasonable. The decision shall be in writing containing reasons therefor. The application for re-count should contain valid precise grounds on which the re-count is asked for. When the rules provide for enough opportunity to a candidate or his agent to watch the counting process before the result is declared and if an objection is raised as to the validity of any ballot paper and if such objection is rejected improperly, it would afford a basis for re-count in an election petition. The secrecy of the vote has to be maintained and demand for re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to error in counting of such magnitude that the result of the election of the returned candidate may be affected. Smallness of the victory margin by itself may not be a sufficient ground for re-count. However, if a prima facie case is made out as to error in counting, a small margin by which the returned candidate succeeded in the election assumes significance, inviting re-count.” Further in the case of Sadhu Singh v. Darshan Singh and Another, (2006) 6 SCC 255 it is held as follows:- “7. for directing re-counting of votes: Concededly the following factors are relevant WP(C) No.9336 of 2023 Page 4 of 7 (i) prima facie case must be established; (ii) material facts must be pleaded stating irregularities in counting of votes; (iii) a roving and fishing inquiry shall not be directed by way of an order for re-counting of votes; (iv) an objection to the said effect should be raised; and (v) secrecy of ballot papers should be maintained;
Arguments
: Mr. Gautam Mishra, Sr. Advocate For Opp. Party : Mr.Bibekananda Mahapatra, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 2nd February, 2024 B.P. Routray, J. 1. Heard Mr. G. Mishra, learned senior counsel for the Petitioner and Mr. B. Mahapatra, learned counsel for the Opposite Party. 2. Present Petitioner is the election petitioner before learned Civil Judge (Sr. Division) Bhadrak in Election Misc. Case No.76 of 2022 and present Opposite Party is the elected candidate. The Petitioiner has challenged the orders dated 22nd December 2022 and 17th February WP(C) No.9336 of 2023 Page 1 of 7 2023 of the learned tribunal wherein her prayer for recounting votes in respect of particular Wards was rejected. 3. It is seen from the impugned orders that, both orders are concerning the same issue and same prayer for recounting votes and order dated 22nd December 2022 merged with order dated 17th February 2023. 4. The facts of the case are that, Opposite Party won the election for the office of Member of Bhandaripokhari Panchayat Samiti in respect of Sarasada Gram Panchayat. Total votes counted were 4480 and present Petitioner was defeated by a margin of 4 votes only. The election petition was filed alleging improper rejection of votes in favour of election petitioner and illegal acceptance of votes in favour of returned candidate. After adducing evidence from the side of the election petitioner, she filed a petition praying for recounting of votes in respect of Ward No.1, 3 to 6, 8 to 11, and 13. It is alleged that in respect of Ward No.5 four valid votes, Ward No.9 two valid votes, Ward No.10 two valid votes, Ward No.11 four valid votes casted in favour of the election petitioner were illegally rejected, and 3 ballots in Ward No.1, 4 ballots in ward No.4, 3 ballots in Ward No.5, one ballot WP(C) No.9336 of 2023 Page 2 of 7 in Ward No.9 and 2 ballots in Ward No.13 have been illegally accepted in favour of the returned candidate. It is also alleged that ink mark has somehow been caused on the ballots at the designated space against the name of the Opposite Party. In respect of Ward No.3 though 264 votes have been casted but only 263 votes are counted and similarly 334 votes were counted against 335 votes casted in respect of Ward No.6. It is submitted by the election petitioner that by such improper rejection of 15 numbers of votes and illegal acceptance of 15 numbers of votes affected the result of the election. Had no such illegality in respect of rejection or acceptance been committed, the result of the election would have been in favour of the election petitioner since the difference in margin of result is only 4 votes. 5. So far as recounting is concerned, a margin of less number of votes is a small factor for consideration. The main factors to be