Orissa High Court · 2024
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-May-2024 21:41:36 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.24945 of 2023 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Priyabrat Das @ Dash …. Petitioner -versus- Sanjay Parida and another …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
(i) prima facie case must be established; (ii) material 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. D. Tripathy, Advocate For Opposite Parties : Mr.P.K. Swain, Advocate For O.P.No.1 Mr.S. Ghose, AGA CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 7th May 2024 B.P. Routray, J. 1. Heard Mr. D. Tripathy, learned counsel for the Petitioner and Mr. P.K. Swain, learned counsel for Opposite Party No.1 as well as Mr. S. Ghose, learned Additional Government Advocate for the State- Opposite Party No.2. 2. The Petitioner who is election Petitioner in Election Misc. Case No.2 of 2022 before the learned Civil Judge, Jajpur Road, has W.P.(C) No.24945 of 2023 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-May-2024 21:41:36 challenged order dated 12th July 2023 rejecting his prayer for recounting of the rejected ballots. 3. The Petitioner and Opposite Party No.1 contested the election for the office of Sarpanch of Kankadapal Gram Panchayat. The Petitioner secured 1885 votes and Opposite Party No.1 secured 1887 votes. The Petitioner challenged the election of Opposite Party No.1 in Election Misc. Case No.2 of 2022. After the evidence was closed, a petition dated 23rd June 2022 was filed seeking a direction to the Election Officer for deposit of ballot papers in respect of ward no.2, 13, 14, 15 & 16. Treating the petition dated 23rd June 2023 for recounting, the 4. prayer of the Petitioner was rejected by order dated 12th July 2023, which is the subject of challenge in present writ petition. 5. Prayer of the petition dated 23rd June 2023 reads as follows: “It is therefore most humbly prayed that your honour may kindly be pleased enough to direct the opp.party no.1 to deposit the sealed ballot papers of ward no.2 and 13 to 16 (Booth Nos.2 & 13 to 16) of Kankadapal G.P. along with the result sheet and report regarding rejection of votes in this Hon’ble Court for the ends of natural justice. And for this the aforesaid petitioner as in duty bound will every pray.” 6. A bare perusal of the aforesaid prayer does not show any prayer for recounting of the votes. However, learned Civil Judge has proceeded in the impugned order treating the prayer for recounting of W.P.(C) No.24945 of 2023 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-May-2024 21:41:36 ballot papers. Accordingly, the technicality in the prayer of the petitioner in his petition dated 23rd this Court without getting to June, 2023 proceeds to deal with the impugned order treating the prayer for recounting of ballot papers. 7. Law relating to an order for inspection and recount of ballot papers had been well-settled in several decisions of the Hon’ble Apex Court. In Ram Sewak Yadav vs. Hussain Kamil Kidwai & Ors., AIR 1964 SC 1249, the circumstance for an order for inspection of ballot papers has been explained in the following terms. “6. An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the court would be justified in granting an order for inspection provided two conditions are fulfilled: (i) (ii) that the petition for setting aside an election the contains an adequate statement of material facts on which the petitioner relies in support of his case; and the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete the parties justice between inspection of the ballot papers is necessary, But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case inspection may so pleaded an order undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes for W.P.(C) No.24945 of 2023 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-May-2024 21:41:36 will not be sufficient to support an order for inspection.” 8. In Mahanta Ram Prakash Dass vs. Ramesh Chandra and others, (1999) 9 SCC 420, the Supreme Court has explained as follows:- the matter either by allowing “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 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 W.P.(C) No.24945 of 2023 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 22-May-2024 21:41:36 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.” 9. Further, the Supreme Court has propounded the guidelines in Sadhu Singh vs. Darshan Singh and another, (2006) 6 SCC 255, that reads as under:- “7. Concededly the following factors are relevant for directing re-counting of votes: facts must be pleaded stating