The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.19393 of 2024 Suchismita Jena …. Petitioner Mr. G. Mishra, Senior Advocate -Versus- Saraswati Patra and another …. Opposite parties Mr. C.M. Singh, ASC Mr. M.K. Badu, Advocate CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 12.12.2024 Order No. 06. 1. Heard Mr. Mishra, learned Senior Advocate for the petitioner, Mr. Badu, learned counsel for opposite party No.1 and Mr. Singh, learned ASC for the State for and on behalf of opposite party No.2. 2. Instant writ petition is filed by the petitioner challenging the impugned order under Annexure-1 passed in connection with Election Misc. Case No. 51 of 2022 by learned Civil Judge (Junior Division), Bhadrak on the grounds inter alia that the same is not legally tenable due to want of reasons and also on merit for the purpose of recounting of votes. 3. Mr. Mishra, learned Senior Advocate for the petitioner submits that the petitioner is the returned candidate and challenging the same, Election Misc. Case No.51 of 2022 is filed by opposite party No.1, during and in course of which, a request was received from the latter for recounting of votes and the same was disposed of by the impugned order under Annexure-1 allowing the same. The contention is that learned court below did not assign any reason while considering counting of votes in Page 1 of 6 absence of specific pleading and in ignorance of the settled legal position as enunciated by the Apex Court in M. Chinnasamy Vrs. K.C. Palanisamy and others (2004) 6 SCC 341 quoted with approval in Kattinokkula Murali Krishna Vrs. Veeramalla Koteswara Rao and others (2010) 1 SCC 466. The submission is that with no reasons assigned even by considering the pleading on record and since law is laid down by the Apex Court in decisions (supra), learned court below ought not to have allowed recounting of votes by the impugned order i.e. Annexure-1. Besides the above case laws, Mr. Mishra, learned Senior Advocate cited a decision in Union of India and others Vrs. Jai Prakash Singh and another (2007) 10 SCC 712 to further contend that it was the bounden duty of learned court below to state the reasons, while allowing counting of votes. 4. Mr. Badu, learned counsel for opposite party No.1, on the other hand, justifies the impugned order under Annexure-1 by claiming that the election of the petitioner is by a narrow margin and that apart, valid votes have been rejected, hence, therefore, considering the same and as a prima facie case is made out from the pleading on record referring to Annexure-2 submits that the decision is not to be disturbed, as such recounting of votes is absolutely necessary and required in the interest of justice. In support of the argument advanced, Mr. Badu, learned counsel cited a decision of this Court in Smt. Sabita Jena Vrs. Smt. Kamala Jena decided in W.P.(C) No.9336 of 2023 and disposed of on 2nd February, 2024 to claim that recounting is rightly allowed. 5. Perused the impugned order under Anenxure-1. 6. Gone through the contents of the petition as at Annexure-2 filed in Election Misc. Case No.51 of 2022 referring Page 2 of 6 to which Mr. Badu, learned counsel for opposite party No.1 submits that recounting as has been ordered by learned court below is proper and justified. 7. On a bare reading of the impugned order under Annexure-1, the Court finds that learned court below recorded the plea of opposite party No.1 with regard to number of votes poled and also the margin and thereafter, with the conclusion that a prima facie case is established, allowed recounting of votes. But such a decision for counting of votes is not supported by any reasons, though, learned court below has taken judicial notice of the case laws cited by both the sides. The Court further finds that reasons should have been assigned while reaching at a conclusion that a prima facie case is made out for recounting which has not been arrived at. In fact, the Apex Court in Jai Prakash Singh (supra) held that reason is necessary while taking a decision and in the facts and circumstances of the said case, reiterated the law that reasons introduce clarity. Referring to the other laws on the point, it is concluded therein that the High Court could not have taken a decision with the orders passed therein indicating no reasons. Being alive to the above settled law, the Court is of the view that the learned court below should have stated the reasons before allowing the counting of votes. In other words, the Court is of the conclusion that the impugned order under Annexure-1 is not a speaking one as it was to be supported by reasons. 8. In M. Chinnasamy (supra), the Apex Court while dealing with a matter on counting votes held as to the following: “Material Facts: It is not in dispute that in relation to an 15. election petition, the provisions of the Code of Civil Procedure apply. In terms of Order 6 Rule 2 Page 3 of 6 of the Code of Civil Procedure which is in pari materia with clause (a) of sub- section (1) of Section 83, an election petition must contain concise statement of material facts. It is true as contended by Mr. Mani that full particulars are required to be set forth in terms of clause (b) of sub-section (1) of Section 83 of the Act which relates to corrupt practice. The question as to what would constitute material facts would, however, depend upon and circumstances of each case. It is trite that an order of recounting of votes can be passed when the following ingredients are satisfied: (1) If there is a prima facie case; (2) material facts therefor are pleaded; (3) the court shall not direct recounting by way of roving or fishing inquiry; and (4) such an objection had been taken recourse to. facts the 16. The necessity of “maintaining the secrecy of ballot papers” should be kept in view before a recounting is directed to be made. A direction for recounting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow. 17. The requirement of rule of pleadings containing material facts are salutary in nature. 18. The parties are bound by the said rule of pleadings and verification thereof having regard to the fact that an election may not be set aside on hyper-technical grounds although no factual foundation therefore had been laid in the pleadings as the elected candidate may not have any hand therein. So far as requirement of in a case where a direction of pleadings recounting of ballot papers has been prayed for, the court must proceed cautiously and with circumspection, having regard to the requirement of maintaining secrecy of ballot papers. It is not disputed that the counting was done at four centres. It is further not disputed that the material facts, as regards as to which category of irregularities as enumerated in the election petition occurred, at which centre and at what time, had not been pleaded. The details as regards Page 4 of 6 table at which such objections were realised have further not been disclosed, nor had the names of the counting agents been disclosed. The very basis of the election petitioner dated 6-10-1999 (Ex.P- 9). We have set out the said objections in extenso herein before. A bare perusal thereof would clearly show that the allegations contained therein are absolutely vague and lack material particulars. Details as regard commission of alleged irregularities police station wise, assembly segment wise, polling counter wise or table wise had not been disclosed. The same by itself goes to show that the Chief Election Agents of the election petitioner did not raise any objection before the Returning Officer and the counting staff as and when such irregularities were purported to have been found out. It may be relevant to note that even if the said agent of the election petitioner had not been examined, inter alia, on the ground that he after declaration of the election result has changed the sides.” 9. The same view is expressed and reaffirmed in Kattinokkula Murali Krishna case, which means, even where there is a narrow margin of votes, the Court should be cautious while entertaining plea for recounting of votes. The principles have been delineated in the above decisions with regard to counting of votes outlining the ingredients, such as, there must be existence of a prima facie case; material facts therefor are pleaded accordingly; and that the Court shall not direct recounting by way roving and fishing inquiry to be satisfied. It is also held and observed in M. Chinnasamy that the necessity of maintaining the secrecy of ballot papers should be kept in view before recounting is allowed and direction in that regard shall not be issued only because the margin of votes between candidate and election petitioner is narrow. The said aspect of objection of the petitioner with reference to the decision in M. Chinnasamy has not been taken cognizance of by learned court below. Even though, it is Page 5 of 6 claimed that a prima facie case is made out by opposite party No.1 seeking recounting of votes referring to Annexure-2 but then, as learned court below has failed to do so and considered the same in the light of the settled principles of law as discussed before, there is no escape from the conclusion that the impugned order under Annexure-1 is liable to be set aside with the matter remitted back for a decision afresh. 10. Hence, it is ordered. 11. In the result, the writ petition stands allowed. As a necessary corollary, the impugned order under Anenxure-1 passed in Election Misc. Case No.51 of 2022 by learned Civil Judge (Junior Division) Bhadrak is hereby set aside with the matter remitted back for a fresh consideration on plea of opposite party No.1 vis-(cid:224)-vis counting of votes. The Court further directs that such request for recounting shall be duly examined by learned court below followed by a reasoned order, keeping in view the principles of law decided and discussed herein before, at the earliest preferably within a period of fifteen days from the date of receipt of a copy of this order. 12. Urgent copy of this order be issued as per rules. Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 13-Dec-2024 10:59:19 (R.K. Pattanaik) Judge Page 6 of 6