Election Petition No. 1 of 2022 · Orissa High Court
Case Details
A.F.R ORISSA HIGH COURT : C U T T A C K W.P.(C) No.32397 of 2022 An application under Articles 226 & 227 of the Constitution of India, 1950 Santosh Kumar Malik : Petitioner -Versus- Election Officer cum B.D.O, Cuttack & Ors. : Opposite Parties For Petitioner : Mr. B.K. Bal For Opposite Party No.1 For Opposite Party No.2 : Mr. S. Mishra, Additional Standing Counsel : M/s. B. Bhuyan, S. Sahoo, S. Mohapatra, A.K. Rout, M.K. Behera For Opposite Party Nos.3 & 4 : None J U D G M E N T CORAM : JUSTICE BISWANATH RATH Date of hearing: 03.02.2023 :: Date of Judgment : 22.02.2023 1. This writ petition involves a challenge to the order dated 11.11.2022 passed by the Civil Judge (Jr. Divn.), Salipur in Election Petition No.1 of 2022 at Annexure-5 in rejection of a recounting request. 2.
Legal Reasoning
Background involved in this case is; Opposite Party No.1 notified the election procedure of three tiers Panchayat Election, 2022 which Page 1 of 17 // 2 // included election for the post of Sarpanch of Katarapada Grama Panchayat involved. Petitioner and Opposite Party Nos.2 to 4 were all candidates with different symbols to each of them. Election procedure involved was conducted accordingly. On 17.1.2022 the Petitioner submitted his nomination paper and the same was scrutinized on 22.01.2022. Counting of votes took place on 27.02.2022. It is claimed by the Petitioner that there was filing of application for recounting of votes by the election agent of Petitioner which got rejected. Finally Election Officer, Nischintakoili Block declared that the Petitioner (Santosh Kumar Malik) obtained 1197 votes and his contestant Opposite Party No.2 obtained 1193 votes and accordingly declared the Petitioner to have been elected as Sarpanch of Katarapada Gram Panchayat by margin of four votes. Here it is alleged that Petitioner from Newspaper of next morning on 28.02.2022 came to know that he has been defeated by margin of two votes only. Petitioner claims, he had an application for recounting of votes, which had been illegally manipulated and rejected involving illegal rejection of the same votes of the symbol “KHOLA CHHATA” and such votes have been added to the symbol of ‘SUN’ belonging to Opposite Party No.2 and there has been even a declaration that Petitioner has got 1191 votes instead of 1197 earlier mentioned wrongly and votes of Opposite Party No.2 remained as 1193 giving Opposite Party No.2 edge over Petitioner by two votes, compelling the Petitioner to bring Election Dispute registered as Election Petition No.1 of 2022. 3. In the pendency of the election dispute Petitioner keeping in view his allegations in the election dispute brought an application on 30.06.2022 to call for ballot box of all used and non-used ballot papers along with all documents preserved relating to Election Petition No.1 to 2022 involving election for the post of Sarpanch of Katarapada Grama Panchayat as appearing at Annexure-2. Opposite Party No.2 filed Page 2 of 17 // 3 // objection to such application on the premises that there is no specific information involved therein attending to the basic requirement in calling for documents as well as recounting of votes vide Annexure-3. This application has been considered and rejected by the trial court in its order dated 30.06.2022 vide Annexure-4 thereby giving rise to filing of the present writ petition. 4.
Legal Reasoning
Challenging the impugned order at Annexure-5 Mr. Bal, learned counsel for Petitioner on reading of the petition involved at Annexure-2 (series) as well as the relevant paragraphs in the Election Petition at Annexure-1 particularly paragraph nos.5 & 6 therein submitted that there has been no consideration of the specific allegation of the Petitioner and in such contingency the observation of the trial court that Petitioner does not have the specific allegation on which votes have been take out from his counts and added to the votes of Opposite Party No.2 is not a corrected one. It is claimed that the petition clearly involves an allegation that on the date of counting there was clear declaration through loudspeaker that Petitioner had secured 1197 votes whereas Opposite Party No.2 had secured 1193 votes, but surprisingly on the next date from the newspaper Petitioner came to know that Petitioner had secured 1191 votes and Opposite Party No.2 secured 1193 votes. Mr. Bal, learned counsel for Petitioner further also assails the impugned order on the premises that there is wrong appreciation of the facts, pleadings as well as the evidence by the trial court. Further there is also wrong reliance of the decisions taken note therein. Petitioner also assails the impugned order on the premises that considering that there is hardly difference of two votes polled by the Petitioner and Opposite Party No.2, such serious aspect should have been seriously viewed as even tracing of one vote in favour of the Petitioner would have resulted otherwise. Page 3 of 17 // 4 // 5. To support his case Mr. Bal, learned counsel for Petitioner took support of the following decisions to the case at hand:- (1) In the case of Ananda Chandra Ojha Vrs. Ashok Saho : AIR AIR 2013 ORI. 115, (2) In the case of Jitendra Bahadur Singh Vrs. Krishna Behari & Ors. : AIR 1970 (SC) 276, (3) In the case of M. Chinnasamy Vrs. K.C. Palanisamy & Ors. : AIR 2004 (SC) 541, (4) In the case of Chandrika Prasad Yadav Vrs. State of Bihar & Ors. : AIR 2004 (SC) 2036, (5) In the case of Kailash Vrs. Nanhku and Ors. : AIR 2005 (SC) 2441, (6) In the case of Sudarsha Avasthi Vrs. Shiv Pal Singh : AIR 2008 (SC) 2724. 6. Mr. Bhuyan, learned counsel for contesting Opposite Party No.2, however, in his attempt to justify the decision in the impugned order contended that even assuming that Petitioner has allegation that there requires recounting, but there should have been specific allegation on how many valid votes from his side taken away and how many invalid votes involving Opposite Party No.2 have been included by giving detail particulars therein. Mr. Bhuyan, learned counsel for Opposite Party No.2 further also taking this Court to the pleadings in the election dispute as well as the application seeking production of documents, contended that neither specific plea nor allegation was made by the Petitioner at the relevant point of time for the said purpose. Further looking to the timing of moving of such application Mr. Bhuyan, learned counsel for Opposite Party No.2 contended that this application was moved only after closure of evidence. It is specifically alleged that even in the evidence there is no specific allegation on how many votes taken away from Petitioner’s side and how many votes illegally included in Opposite Party No.2 side. Mr. Bhuyan, learned counsel then contended, in the circumstances there is no requirement of attention to such application. Page 4 of 17 // 5 // 7. Taking this Court to the decisions vide (1) in the case of Ananda Chandra Ojha Vrs. Ashok Sahoo : AIR 2013 Orissa 115, (2) in the case of Anubhav Patnaik Vrs. Soumya Ranjan Patnaik : AIR 2015 Orissa 110, (3) in the case of Rani Marskole Vrs. State of M.P. & Ors. : AIR 2016 MP 132, (4) in the case of Arikala Narasa Reddy Vrs. Venkata Ram Reddy Reddygari & Anr. : AIR 2014 SC 1290, (5) in the case of Suresh Prasad Yadav Vrs. Jai Prakash Mishra & Ors. : (1975) 4 SCC 822, Mr. Bhuyan, learned counsel contended that for the settled position of law one is required to bring positive information and/or clear information to satisfy in the matter of illegal rejection or illegal inclusion of votes in filing the petition and for the petition did not involve the basic requirement, was otherwise bad in law. It is, at this stage of the matter, taking this Court to the discussions of the Election Tribunal in the impugned order Mr. Bhuyan, learned counsel for Opposite Party No.2 attempted to justify the impugned order. 8. Considering the rival contentions of the parties, keeping in view the allegations involved and looking to the relevancy in filing such application, this Court here finds, there is allegation of taking out some votes from Petitioner’s side and inclusion of some illegal votes in Opposite Party No.2’s side being the basis of an attempt for recounting of votes. Further there was already declaration of result declaring the Petitioner succeeding the Election by margin of four votes. To examine the foundation in the above allegations through the pleadings and evidence of the Petitioner, this Court takes down here the specific plea in the Election Dispute at Annexure-1 and through paragraph nos.5 & 6 therein the Petitioner has made the following:- “5. That the G.P. Election officer declared the symbol of the candidates in the notice board and election procedure conducted therein. On 17.01.2022 the petitioner submits nomination paper and the same is scrutinized on dtd 22.01.2022 and the parties are obtain symbol accordingly. And the election started and the No.s of the Page 5 of 17 // 6 // voters casted their votes. On 18.02.2022 counting started at Panchayat Prahallad College Nischintakoili on the guidance of OP party no.1 and on dtd 27.02.2022 at about 10.30PM, the counting officers and counting booth center superintendent are created disturbances and with ill intention they are rejected some votes of the petitioner and did not give emphasis to receive any objection of the Election Agent and that after the Election Agent submit application before the Election Officer at about 10.55 PM to recount the rejected votes of Ward no. 1 to 13 but the Election Officer rejects the application and procedure by showing high handedness. The Election Officer of Nischintakoili Block declare that Santosh Kumar Mallik obtain 1197 votes and his contestant OP Party No.2 obtain 1193 votes and the petitioner declare as elected Sarpanch for the Katarapada G.P., by the margin of 4 votes at about 11 PM. And after the Election counting Agent and other peoples are left the counting center, on dtd 28.02.2022 the petitioner came to know that he became defeated by margin of 2 votes from the daily newspaper. 6. The petitioner inform to the Election Officer-cum-BDO Nischintakoili to recount the vote which has been illegally manipulated and rejected some valid votes of KHOLA CHHATA belongs to the petitioner and added some reject votes in the bunch of symbol of SUN belongs to OP No.2 and illegally declare that the OP Party No.2 is a winning candidate. And mention that wrongly mention that the petitioner obtain 1191 votes instead of 1197 votes and similarly the votes of OP no.2 remain constant. So that the petitioner appends that his valid votes are rejected and some rejected votes of OP party no.2 added in their favour.” 9. Similarly the application for production of ballot box involving used and non-used ballots vide Annexure-2 filed on 30.06.2022 had also the following prayer in the above regard:- “It is therefore prayed that your Honour would graciously be pleased to allow the Election Petition. And give direction to O.P.No.1 to produce ballot box with used and non-used ballot papers and result sheet of Sarapanch for the Katarapada G.P. for recounting of the total votes and declared the result. And for this act of your kindness the Petitioner as in duty bound shall ever pray.” 10. From paragraph nos.4 & 5 it appears, the party in opposition appears to have filed his objection vide Annexure-3 in October, 2022 specifically denying the allegations and objecting the entertainability of such application. Page 6 of 17 // 7 // 11. Undisputedly the Election Petitioner brought his affidavit by way of evidence bringing in the followings:- “6. That on dated 17.01.2022 the I submit nomination paper and the same is scrutinized on dtd 22.01.2022 and the parties are obtain symbols accordingly. And the election procedure started and the No.s of the voters casted their votes. On 18.02.2022 counting started at Panchayat Prahallad College Nischintakoili on the guidance of OP party no.1 and on dtd 27.02.2022 at about 10.30PM, the counting officers and counting booth center superintendent are created disturbances and with ill intention they are rejected some votes of the petitioner and did not give emphasis to receive any objection of the Election Agent and that after the Election Agent submit application before the Election Officer at about 10.55 PM to recount the rejected votes of Ward no.1 to 13 but the Election Officer rejects the application and procedure by showing high handedness. The Election Officer of Nischintakoili Block declare that Santosh Kumar Mallik obtain 1197 votes and his contestant OP Party No.2 obtain 1193 votes and the petitioner declare as elected Sarpanch for the Katarapada G.P. by the margin of 4 votes at about 11 PM. And after the Election counting Agent and other peoples are left the counting center, on dtd 28.02.2022, I came to know that I became defeated by margin of 2 votes from the daily news paper. 7. The I inform to the Election Officer-cum-BDO Nischintakoili to recount the vote which has been illegally manipulated and rejected some valid votes of KHOLA CHHATA belongs to me and added some reject votes in the bunch of symbol of SUN belongs to OP No.2 and illegally declare that the OP Party No.2 is a winning candidate. And wrongly mentioned that I obtain 1191 votes instead of 1197 votes and similarly the votes of OP no.2 remain constant. So that I appends my valid votes are rejected and some rejected votes of OP party no.2 added in their favour.” 12. Now considering the claim and counter claim involving the application calling for ballot box and ballot details, the Election Tribunal came to observe as follows:-
Decision
“In view of the above aspect and after going through the case record as well as the submission of both side counsels it is seen that the present petitioner has filed Election Petition no.1/2022 with a prayer to recounting the votes of Katarapada G.P. and set aside the declaration of Opposite party no.2 as Sarapanch of Katarapada G.P. and declared that the petitioner is the elected Sarapanch of Katarapada G.P. under Nischntikoili Panchayat Samiti. It is further seen that the present petition also filed by the petitioner after closure of evidence from his side but the same is taken up for hearing by this court after closure of evidences from both the sides. In the present petition the petitioner prays to direct the opposite party no.1 for production of ballot box with used and non-used ballot papers and Page 7 of 17 // 8 // result sheet of Sarapanch for the Katarapada G.P. for recounting of total votes and declared the result. On perusal of the case record it is seen that the petitioner as well as the opposite party no.2 to 4 are contesting candidates for the post of Sarapanch of Katarapada G.P. under Nischintikoili Panchayat Samiti in Three Tire Panchayat Election- 2022 and the petitioner has been allotted the symbol of “Khola Chhata”, opp. Party no.2 is allotted the symbol of “Sun” and Opp. Party no.3 allotted the symbol of Kholabahi, opp.party no.4 is allotted the symbol of “Machha”. But in the present case the petitioner has not cleared either in his pleadings or in the evidence the total votes polled stand in that Katarpada G.P. and out of which how many votes were secured by the opposite party no.3 and opposite party no.4 and the number of rejected votes. It is seen that the petitioner simply averred that on the day of counting the OP no.1 has declared through loudspeaker that “Khola Chhata” (i.e. the symbol of petitioner) has secured 1197 votes and “Sun” (i.e. the symbol of OP-2) has secured 1193 votes and the petitioner is the returned Sarapanch candidate of Katarapada G.P. and he wined with a margin of 4(four) votes. But, on the next date of that declaration the petitioner came to know from the newspaper that the opp. Party no.2 is declared as returned candidate of Katarapada G.P. as the OP no.2 has secured 1193 votes and the petitioner has secured 1191 votes and the OP has wined with a margin of 2 (two) number of votes, for which the petitioner appends that his valid votes are rejected and some rejected votes also added in favour of Opposite party no.2. However, the petitioner has not provided the said allegation by any documentary or oral evidence and it is further seen that the petitioner is not sure about how many of his valid votes has been rejected and how many rejected votes were counted in favour of opposite party no.2. It is further seen that the petitioner also not examined his counting agents in this case. The Hon’ble Apex Court in (1975) 4 SCC 822 has held that an order for inspection and recount of the ballot papers cannot be made as a matter of the course. The reason is two-fold. Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. It also pointed out that the Court would be justified in ordering a recount of the ballot papers only where: (1) the election- petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting, and (3) the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. “ In Kattinokkula Murali Krishna vs Veeramalla Koteswara Rao & Ors on 23 November, 2009, it has been pointed out by the Hon’ble Court that Re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should Page 8 of 17 // 9 // allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegations, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. It is further seen that Hon’ble Orissa High Court in AIR 2013 (Orissa) 115 has held that ‘the case of illegally accepting or rejecting the ballots has to be pleaded giving the serial number of ballots and the source of information. Merely saying that petitioner’s agent had told him was not enough. The name of the agent, who had furnished such information was to be disclosed in the election petition itself, note book on the basis of which such details had been furnished must be produced.” In this case Hon’ble Court has also referred the decisions AIR 1970 SC 276, AIR 2004 SC 542 and AIR 2004 SC 2036. Considering the above aspect as well as the dictum of the Hon’ble Courts it is of the opinion that the present petitioner is not entitled to recounting of the votes and the present petition is liable to be rejected without any merits as because the petitioner has not come with cleaned hand before this court and he has not mentioned either in his pleading or in his evidence about the total votes polled stand in that Katarpada G.P. and out of which how many votes were secured by the opposite party no.3 and opposite party no.4 and the number of rejected votes. The petitioner has also filed to prove that how many his valid votes have been rejected by the op no.1 and also filed to prove the illegality and irregularity from the side of OP no.1. The petitioner also not examined his counting as well as voting agents in this case. Hence for the interest of justice the present petition is rejected. Put up on 17.11.2022 for argument of the Case.” 13. It is here observed that when the Petitioner claims, he has pleadings necessitating recounting through paragraph nos.5 & 6 and laid evidence in paragraph nos.6 & 7, whereas learned Counsel for Opposite Party No.2 objects to such claim on the premises that there is no fulfilment of requirement of ingredients to call for recounting of votes. This Court while keeping in view the pleadings and evidence of the person seeking recounting taken note herein in paragraph nos.8, 9 & 11, now proceeds to find the Law on such aspect already pronounced, which runs as follows:- (1) Dr. Jagjit Singh vs Giani Kartar Singh and others : AIR 1966 (S.C.) 773 here the Hon’ble apex Court attending to the scope of Tribunal in case of recounting observed as follows: Page 9 of 17 // 10 // in mind certain the Tribunal has “33.The true legal position in this matter is no longer in doubt. Section 92 of the Act which defines the powers of the Tribunal, in terms, confers on it, by Cl. (a), the powers which are vested in a Court under the Code of Civil Procedure when trying a suit, inter alia, in respect of discovery and inspection. Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to the improper acceptance or rejection of the voting papers. But in exercising this power, important to bear considerations. Section 83 (1) (a) of the Act requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies; and in every case, where a prayer is made by a petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were improperly rejected, or invalid votes were improperly accepted, would not serve the purpose which S. 83(1)(a) has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interests of justice, the ballot boxes should be inspected or not. In dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored, and it is always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. We do not propose to lay down any hard and fast rule in this matter; indeed, to attempt to lay down such a rule would be inexpedient and unreasonable.” (2) In Bhabhi v. Sheo Govind : 1976 (1) SCC 687- Para-15, here the Hon’ble apex Court in the case of claim for recounting has formulated grounds as follows:- “15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a court can grant inspection, or for that matter sample inspection, of the ballot papers: (1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; Page 10 of 17 // 11 // (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts; (3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; (5) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void; and (6) That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials.” If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper.” (3) In P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen : (1989) 1 SCC 526-Para-11 11. In Ram Sewak Yadav v. Hussain Kamil Kidwai [AIR 1964 SC 1249 : (1964) 6 SCR 238 : 26 ELR 14] this Court has set out the circumstances when an order for inspection of ballot papers can be ordered in the following terms: (SCR pp. 244-45) “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) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and (ii) The Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties 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 so pleaded an order for inspection may 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 will not be sufficient to support an order for inspection.” Page 11 of 17 // 12 // (4) Mahant Ram Prakash Dass v. Ramesh Chandra : (1999) 9 SCC 420 – Considering irregularity in vote process Supreme Court held in para-13 “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.” (5) In Jeet Mahinder Singh Vrs. Harmindar Singh Jasi (1999) 9 SCC 386, the success of a candidate who has won an election should not be lightly interfered with. Any person seeking such interference must strictly confirm to the requirements of the law. (6) In Chandeswar Saw Vrs. Brij Bhushan Prasad & Ors. : (2020) 12 SCC 70 (Para 15 & 17) “15. The question is: whether material facts to justify an order of recount of votes has been clearly pleaded and the same have been proved by the appellant / election petitioner in the present case? That issue has been analysed by the Election Tribunal extensively, as is evident from the analysis made by it, which commenced to the learned single Judge. Since the appellant had Page 12 of 17 // 13 // substantiated the allegation made in the election petition and the Election Tribunal being convinced about the said claim proceeded to issue order of recount. No fault can be found with that approach of the Election Tribunal nor it is possible to suggest that the Election Tribunal or the learned single Judge was not conscious about the necessity to substantiate the allegation about the serious irregularities committed by the officials during the counting. 17. A priori, we have no hesitation in concluding that the Division Bench has interfered with the well-reasoned judgment and order passed by the Election Tribunal, which was justly upheld by the learned single Judge, directing recount of votes. It appears that after the recount, the appellant / election petitioner has secured 95 excess valid votes, more than the valid votes secured by respondent No. 1. That has reinforced the challenge set up by the appellant that the officials had committed serious irregularities bordering on intentional manipulation of the valid votes secured by the appellant. As a result, we have no hesitation in upholding the order of recount of votes, as passed by the Election Tribunal (dated 11.10.2018) and justly upheld by the learned single Judge (vide order dated 6.3.2019), in the facts of the present case.” (7) Ananda Chandra Ojha Vrs. Ashok Saho : AIR 2013 ORI 115 :- 6.Law is well settled that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements are necessary, viz. (i) the election petition seeking re-counting of the ballot papers must 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. In an election petition, the issues are to be decided differently and the order for recounting of votes may not be a final relief. 9.It is solemn duty of the appellant to plead material facts. The case of illegally accepting or rejecting the ballots has to be pleaded giving the serial number of ballots and the source of information. Merely saying that petitioner's agent had told him was not enough. The name of the agent, who had furnished such information was to be disclosed in the election petition itself, note book on the basis of which such details had been furnished must be produced (Vide Jitendra Bhadur Singh v. Krishna Behari, AIR 1970 SC 276, M. Chinnasamy v. K. C. Palanisamy and others, AIR 2004 SC 541, and Chandrika Prasad Yadav v. State of Bihar and others, AIR 2004 SC 2036).” Page 13 of 17 // 14 // This Court here also takes into account the support of a recent decision of this Court in the case of Rabinarayan Das Vrs. State of Orissa & Ors. in W.P.(C) No.3735 of 2023 decided on 17.02.2023. 14. Keeping in view that there is at least some pleadings to support the case of the Petitioner requiring at least scrutiny of documents to find support to his claim in para-5, 6 of the election petition for recounting of entire votes, this Court here finds, the Hon’ble apex Court here laid down the position of law as follows:- (1) Shri Shashi Bhushan vs Prof. Balraj Madhok and others : AIR 1972 SC 1251 – 1972 SCR (2) 177 “18.The next question is whether it is necessary to inspect all the ballot papers as has been ordered by the trial Judge. We think that a general inspection should not be permitted, until there is satisfactory proof in support of those allegations. For finding out whether there is any basis for those allegations, it would be sufficient if some ballot papers say about 600 out of those polled by each of the returned candidates are selected from different bundles or tins in such a way as to get a true picture. He may also select about 200 ballot papers cast in favour of the election petitioners for comparison. All the selected ballot papers at the first instance be examined by the learned Judge with the assistance of the Counsel for the parties as well as the parties. If the learned Judge comes to the conclusion that the matter should be further probed into, he may take evidence on the points in issue including evidence of expert witnesses. Thereafter it is open to him to direct or not to direct a general inspection of the ballot papers. But in doing so he will take care to maintain the secrecy of the ballot.” (2) Suresh Prasad Yadav vs Jai Prakash Mishra and others : AIR 1975 SC 376 “5.Before dealing with these contentions, we may recall, what this Court has repeatedly said, that an order for inspection and recount of the ballot papers cannot be made as a matter of course. The reason is twofold. Firstly such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against trickery, mistakes and fraud in counting, that it can be called almost fool- proof. Although no hard and fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court may be Page 14 of 17 // 15 // indicated thus : The Court would be justified in ordering a recount of the ballot papers, only where : (1) the election-petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; (2) On the basis of evidence adduced such allegations are prima facie established, affording a good ground SC378 for believing that there has been a mistake in counting; and (3) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. 27.Any other interpretation of Rule 93 and its acope would make it difficult, if not altogether impossible, for the Returning Officer to perform the various functions and duties enjoined by the rules at the stage of Counting. This will be clear from a reference to the other Rules. Take for instance R. 56 which requires that the ballot papers shall first be taken out from the boxes used in a constituency and mixed together and then arranged in convenient bundles and scrutinised. Sub-rule (2) of Rule 56 further requires inter alia that if a ballot paper does not bear any mark at all or does not bear both the mark or the signature which it should have borne under the provisions of sub-rule (1) of Rule 38, it shall be rejected by the Returning Officer. To perform this duty, it would be absolutely necessary for the Returning Officer to inspect such ballot papers. Indeed, in the present case, an objection was raised that fifty unused ballot papers in the packet did not bear the mark or signature required by Rule 38 (l). The Returning Officer was therefore, fully competent to open the packet and inspect and count the ballot papers found therein. 29.In the light of the above discussion, the conclusion is inescapable that tile act of the Returning Officer in opening the packet, and in inspecting and counting the unused ballot-papers found therein, far from amounting to an illegality, was necessary for the due performance of the duty enjoined on him by the Rules.” 15. Considering the pleadings in para-5 & 6 of the Election dispute specifically alleging that on the date of counting the Petitioner was declared elected by securing 197 number of votes and Opposite Party No.2 secured 193 number of votes, even assuming that there is no other specific allegation but the Petitioner for recounting at least could have been allowed to the extent verifying the counting sheet, result sheet / counting folio with counter signature of both agents, superintendents of booth nos.1 to 3, documents disclosing at least number of votes obtained by Petitioner and Opposite Party No.2 and disclosing the result declared Page 15 of 17 // 16 // by the Election Officer, to ascertain the actual votes polled by each of the candidates here in contest. 16. This Court in the consideration process also considered the citations cited at Bar. 17. Perused the findings of the Election Tribunal in the impugned order. This Court finds, even though the Tribunal has made endeavor to drive through the decision of the Hon’ble apex Court as well as this High Court, but failed in appreciating the decisions keeping in view the allegation to the extent at paragraph nos.5 & 6 in pleadings and paragraph nos.6 & 7 in his evidence discussed hereinabove in paragraph nos.8 & 10 to consider the request of the Petitioner limited to at least scrutinizing the counting folio signed by the Election agents along with the Superintendents taking part in counting papers prepared by the Election Officer before declaring result and booth wise counting sheets of votes of Katarapada Gram Panchayat held on 27.02.2022 and proceeded accordingly. 18. In the above circumstance, interfering in the impugned order and setting aside the orders at Annexure-5, this Court in partial allowing of the application of the Petitioner at Annexure-2(series), directs the Election Tribunal to at least call for and peruse the counting sheet in respect of each booth, result sheet, counting folio with counter signature of both agents, Superintendent of booth nos.1 to 3, documents disclosing at least number of votes obtained by Petitioner and Opposite Party No.2 in the declaration of result involving the counting of votes dated 27.02.2022 involving Katarapada Gram Panchayat to find support, if any, to the allegation of the Petitioner in para nos.5 & 6 in the Election Petition and if necessary in the involvement of counsel for both parties appearing therein and proceed further as per his observation in terms of above direction. Let the Election Tribunal complete the above exercise at Page 16 of 17 // 17 // least within a period of seven working days of pronouncement of this judgment. To avoid loss of further time, looking to the nature of dispute involved herein this Court directs Opposite Party No.1 and/or the custodian of Ballot Boxes and its related papers including declaration of result, to cause production of documents indicated in details in para 18 for the election of Sarpanch of Katarapada Gram panchayat within a period of four working days hereafter and to assist the Election Tribunal for his discharging duty in terms of the above direction. 19. Let a free copy of this order be handed over to the State Counsel for immediate forwarding of copy of this judgment to Opposite Party No.1 for timely action at his end. 20. This Writ Petition succeeds, but to the extent indicated hereinabove. There is, however, no order as to costs. Orissa High Court, Cuttack. The 22nd day of February, 2023// Ayaskanta Jena, Senior Stenographer (Biswanath Rath) Judge Page 17 of 17