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2003 DIGILAW 572 (ORI)

Rabinarayan Hati v. Nityananda Patra

2003-09-12

A.K.PATNAIK, M.PAPANNA

body2003
JUDGMENT A. K. PATNAIK, J. — The petitioner and the opp. party No. 1 contested in the election for membership of Rajnagar Panchayat Samiti from Rangani Grama Panchayat and the petitioner was de¬clared elected. The opp. party No. 1 filed Panchayat Samiti Elec¬tion Case No. 1 of 2002 before the learned Civil Judge (Senior Division)-cum-Election Commissioner, Kendrapara, alleging inter alias that in the first count, the opp. party No. 1 polled as many as 2269 valid votes whereas the petitioner polled only 2263 valid votes, but a re-count was held illegally in which 39 number of valid votes polled by the opp. party No. 1 were rejected illegally and the opp. party no. 1 was shown to have polled 1130 and the petitioner was shown to have poled 2260 valid votes. Evidence was led by the opp. party No. 1 in support of the said allegations and a petition was filed by the opp. party No. 1 before the learned Civil Judge (Sr. Division), Kendrapara for opening of ballot paper packets of the respective booths for inspection and reference by the concerned polling agent of the opp. party No. 1 at the time of their examination in witness box. By order dated 14.8.2003, the learned Civil Judge (Sr. Division), Kendrapara, allowed the said petition and directed that the ballot packets of the respective booths he opened for inspection for reference by the concerned polling agent-witness whose evi¬dence was being recorded on behalf of the opp. party no. 1. Aggrieved by the said order dated 14.8.2003 of the learned Civil Judge (Sr. Division), Kendrapara, the petitioner has filed this writ petition under Articles 226 and 227 of the Constitution. 2. Mr. Mishra, learned counsel for the petitioner vehe¬mently submitted that no such order can be passed by the learned Civil Judge (Sr. Division), Kendrapara until the Election Officer and the witnesses on behalf of the petitioner are examined. He further submitted that in any case on the mere asking by the opp. party No.1, the ballot packets cannot be opened and the ballots cannot be inspected by the concerned polling agent as such a practice is alien to Election Law. 3. Mr. Patnaik, learned counsel for the opp. party No.1, on the other hand, submitted that it will be clear from the certified copies of the result sheets which have been produced before the Court today that the opp. 3. Mr. Patnaik, learned counsel for the opp. party No.1, on the other hand, submitted that it will be clear from the certified copies of the result sheets which have been produced before the Court today that the opp. party No.1 initially poled 2269 valid votes, but thereafter the valid votes of the opp. party No.1 were reduced to 2230 in a so-called re-count where the poling agents of the opp. party No. 1 were not present. According to Mr. Patnaik, on the face of the certified copies of the result sheets it is clear that illegality has been committed by the Election Officer and it is in these peculiar facts that the learned Civil Judge (Sr.Division), Kendrapara has directed open¬ing of ballot paper packets and for inspection of the ballot papers by the poling agents as witnesses on behalf of the oppo¬site party No. 1. 4. It is true that if a strong case is made out by the election petitioner in pleadings as well as in evidence by show¬ing that the margin of votes between the winning candidate and the losing candidate was small and that there was also an error or illegality committed by the Election Officer in counting, an order of inspection of ballot papers and recounting can be passed by the Election Tribunal. But, it is also well settled that strict secrecy of the ballot papers has to be maintained in a democracy and unless the Election Tribunal is satisfied on the basis of specific pleadings of the parties and the evidence led by the parties that such inspection or re-count is necessary, no such order for inspection or re-count should be passed. In this case, witnesses on behalf of opposite party No.1 are being examined and opp. party No. 1 is yet to make out a case for such inspection and, at this stage, ballot packets cannot be opened for inspection and examined by the witnesses. After examining the witnesses on behalf of the opp. party No. 1 and after examining the witnesses of the petitioner, if any, the Court may consider the material that has come into the record and if the Court is satisfied that a case is made out for inspection of ballot packets or re-count, the Court may pass an order for inspection and/or re-count. 5. party No. 1 and after examining the witnesses of the petitioner, if any, the Court may consider the material that has come into the record and if the Court is satisfied that a case is made out for inspection of ballot packets or re-count, the Court may pass an order for inspection and/or re-count. 5. For the aforesaid reasons, we set aside the impugned order dated 14.8.2003 of the learned Civil Judge (Sr. Division), Kendrapara and direct that the learned Civil Judge (Sr. Division), Kendrapara will first record the evidence of the witnesses on behalf of the opposite party No. 1 and thereafter will allow the writ petitioner to lead such evidence as deems fit and proper and after evidence is led on behalf of both the par¬ties, the Court will consider the material on record and pass orders either to allow inspection or re-count or not to allow inspection or re-count, the Court may examine the ballot papers and decide the dispute between the parties by 31.12.2003. With the aforesaid directions, the writ petition is allowed. M. PAPANNA, J. I agree. Petition allowed.