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2008 DIGILAW 309 (ORI)

Rama Ranjan Mohanty v. Bijaya Kumar Padhihari

2008-04-10

I.MAHANTY

body2008
JUDGMENT I. MAHANTY, J. — In the present writ petition, the peti¬tioner has sought to challenge the order dated 5.2.2008 passed by the learned Civil Judge (Jr. Division), Nimapara in Election Misc. Case No.8 of 2007 by which the learned Civil Judge was pleased to direct opening of the ballot box and recounting the votes cast in favour of both the parties as well as the rejected votes of booth Nos.1 and 8. 2. Mr. Mukherjee places reliance upon Rule 51 of the Orissa Gram Panchayat Rules, 1965 (in short ‘the Rules’) and submits that in the present case when the original count took place, the petitioner was found to have secured 1348 votes and opposite party No.1 was found to have obtained 1349 votes. Fur¬ther, the Election Officer has directed to recount in accordance with the relevant rules and pursuant to such direction for re¬counting, the petitioner was found to have obtained 1345 votes whereas the opposite party was found to have secured 1344 votes and accordingly, the petitioner was declared as elected. 3. Opposite party No.1 on being aggrieved by the order of recount and declaration of result in favour of the present peti¬tioner, filed misc. case No.8 of 2007 and during its pendency, by order No.48 dated 5.2.2008 learned Civil Judge (Jr. Division), Nimapara has issued directions as noted hereinabove. 4. Mr. Mukherjee, learned senior counsel appearing for the petitioner submits that by the impugned order, directions have not been issued in consonance with the provisions of Orissa Grama Panchayat Election Rules nor with to settled proposition of law on the subject of recount. In this respect, Mr. Mukherjee submits that Rule 51 mandates that where a candidate seeks to challenge the result of the election and makes a prayer for recounting and such recounting is directed as noted in the present case, such recount, is held in accordance with Rule-47 of the Rules and thereafter, once in course of recount held under Rule-47 of the Rules, since opposite party No.1 has not raised any objection in course of recount as required under Rule-47, he was not entitled to question the declaration of result as a consequence thereof. Learned counsel further submits that the learned trial Court has not appreciated the implications of the judgment of Hon’ble Apex Court rendered in the case of Baldev Singh v. Shinder Pal Singh and another, (2007) 1 Supreme Court Cases 341 and has merely acted in a casual manner and has sought to distinguish the case of Baldev Singh (supra) on facts, without in any manner applying the statutory requirements of law. In this respect, Mr. Mukherjee submits that Hon’ble Supreme Court in the case of M. Chinnasamy v. K.C. Palanisamy, has stated as follows : “The question as to what would constitute material facts would, however, depend up the facts and circumstances of each case. It is trite that an order of re-counting of votes can be passed when the following ingredients are satisfied: (1) if there is a prima facie case; (2) material facts therefore are pleaded; (3) the Court shall not direct re-counting by way of roving or fishing inquiry; and (4) such an objection had been taken re¬course to. 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 re-counting shall not be issued only be¬cause the margin of votes between the returned candidate and the election petitioners is narrow.” Mr. Mukherjee contends that since none of the conditions, on the basis of which recounting may be directed, exists in the present case and since the impugned order does not indicate satisfaction on the part of the trial Court in all these aspects, no direction for recount can be sustained. 5. Mr. P.K. Mohanty, learned counsel for the opposite party No.1, on the other hand, asserts that in the facts of the present case, the application of the opposite party satisfies all the requirements laid down by the Hon’ble Apex Court for enter¬taining the prayer for seeking recount. On this basis, he asserts that whereas the present opposite party No.1 had originally secured the higher number of votes and ought to have been de¬clared elected, yet, on intervention on behalf of the present petitioner, since recounting was held, only as a consequence of said recounting, the present petitioner was declared elected in place of opposite party No.1. On this basis, he asserts that whereas the present opposite party No.1 had originally secured the higher number of votes and ought to have been de¬clared elected, yet, on intervention on behalf of the present petitioner, since recounting was held, only as a consequence of said recounting, the present petitioner was declared elected in place of opposite party No.1. He further submits that the Hon’ble Apex Court in the case of Chandrika Prasad Yadav v. State of Bihar and others, (2004) 6 SCC 331 , while dealing with the matter arising out of Rule 79 of the Bihar Panchayat Election Rules, 1995 came to hold as follows : “..... while filing such an application the basis for making a request for “re-counting” of votes is required to be disclosed.” Relying to the same, learned counsel for opposite party No.1 submits that opposite party No.1 satisfies the required mandates of law and directions issued by the Apex Court. 6. Considering the submissions made by both the parties and on a perusal of the impugned order, it is seen that learned Civil Judge (Jr. Division), Nimapara has dealt with the judgment of the Hon’ble Apex Court rendered in the case of Baldev Singh (supra) in the following manner : “For the ends of justice it is necessary to verify the rejected ballot papers of Booth No.1 and 8. The rejected ballot paper of Ward No.10 cannot be counted as the result sheet Ext.A submitted by the petitioner does not show any rejection of ballot papers in the recounting. O.P.W.-1 has stated in the objection and in the affidavit evidence that his valid votes were counted in favour of the petitioner. This question can be decided by opening the ballot box and counting the votes cast in favour of both the parties and the rejected votes of booth No.1 and 8.” From the above, it is clear that the learned Civil Judge appears to have dealt with the issue rather in a casual manner, without in any manner attempting to apply the principles laid down by the Hon’ble Apex Court in the judgments at hand. Distinc¬tion of facts by itself in every case do not give the scope for distinguishing the ratio laid down by the Supreme Court and the same is binding over all Courts and, therefore, when such issues are brought to trial Courts, it is required that the trial Courts must deal with the matter keeping in view the ratio/principles of the said judgment of the Apex Court. 7. Accordingly, since the impugned order suffers from non-application of judicial mind for the reasons as noted hereina¬bove, the order dated 5.2.2008 passed by the learned Civil Judge (Jr. Division), Nimapara is quashed and the matter is remanded back to him with a direction to deal with the issue in accordance with law laid down by the Hon’ble Apex Court. Since the matter is an election dispute, the trial Court is directed to take up the matter expeditiously giving liberty to both the parties to raise their contentions in respect of their rival stand. 8. It is made clear that I have not expressed any opinion on the merits of the rival claims and the trial Court is at liberty to deal with the matter keeping in view the observations made above. 9. With the aforesaid directions, the writ application is allowed. Interim orders, if any, stand vacated. Application allowed.