Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 108 (ORI)

Laxmibala Bohidar v. Janaki Pattanaik

2013-04-17

S.PANDA

body2013
ORDER Heard learned counsel for the parties. In this appeal, the appellant has challenged the judgment dated 4.10.2012 passed by the learned Addl. District Judge, Kuchinda in Election Dispute Case No. 1/1 of 2012 allowing the election petition by directing the Collector, Sambalpur and B.D.O.-cum-Election Officer, Jamankira to recount the votes cast by each of the voters in 131 polling booths of Jamankira Zone-I Zilla Parishad Constituency within three months of receipt of the order, in presence of both the parties or their agents including the defeating candidate Smt. Manjulata Choudhury of Bharatia Janata Party, if she desires to participate in the counting process either by herself or through her agent and pronounce the result under intimation to the Court. The facts as narrated on the records are that the appellant contested the election for the post of Zilla Parishad of Jamankira Zone-I Zilla Parishad Constituency, Sambalpur on behalf of Indian National Congress Party held on 13.2.2012. The respondent was contesting as a candidate on behalf of Biju Janata Dal and one Manjulata Choudhury was also contesting as a candidate on behalf of Bharatiya Janata Party. In the said election appellant won by a margin of 69 valid votes than the respondent. Challenging the said election, the respondent filed an Election Dispute Case before the competent Court under Section 32 of the Orissa Zilla Parishad Act to declare the election of the appellant as void and to declare her as elected. In the Election Dispute, the respondent further prayed to issue direction to the B.D.O.-cum-Election Officer, Jamankira to produce all the ballot papers used in respect of Jamankira Zone-I election for inspection and verification of the Court and further prayed for recounting, re-verification of the ballot papers under the supervision of the Court. Learned counsel for the appellant submits that the respondent (election petitioner) has not pleaded in the election petition regarding how many numbers of vote were rejected and he has also not pleaded the material particulars in the election petition. Therefore, the Court below should not have directed for recounting of the ballot papers as there were no materials available on the record for recounting. He further submits that the respondent has also not specifically stated in her deposition before the Court below that how many votes were rejected illegally and who was the polling agent committed such illegality while counting the votes. He further submits that the respondent has also not specifically stated in her deposition before the Court below that how many votes were rejected illegally and who was the polling agent committed such illegality while counting the votes. Learned counsel for the appellant also produces the certified copy of the election petition as well as the copy of the deposition of the parties before this Court. In support of his contention, he cited the decisions reported in 2010 (I) OLR 66 (Katinokkula Murali Krishna v. Veeramalla Koteswara Rao and others), 2013 (I) OLR 575 (Ananda Chandra Ojha v. Ashok Sahoo), AIR 1989 SC 640 , (P.K.K. Shamsudeen v. K.A.M. Mappillai Mohidneen and others), AIR 1984 SC 654 (D.P. Sharma v. The Commissioner and Returning Officer and others) and 1999 (II) OLR 78 (Kishore Mohanty v. Birendra Chandra Pandey and others). Learned counsel for the respondent submits that even though as per the written request recounting was made, on oral request also recounting shall also be made which has been done by the election petitioner by his polling agent. However, the election officer instead of recounting the vote of all the booths only directed to recount the rejected votes. Though oral objection was made during counting and recounting, the same was not accepted by the election officer and result was declared. He further submits that the respondent (election petitioner) made a prima facie case for recounting of votes and as she gave specific instances regarding rejection and acceptance of votes and the Court below accepted the same as a prima facie case, it cannot be said that material fact has not been given by the election petitioner. He has also submitted that the Election Officer should not be impleaded as a party in view of Section 32 of the Orissa Grama Panchayats Act as well as Section 44-C of the Panchayat Samiti Act, 1959. For better appreciation Section 32 of the Orissa Grama Panchayats Act and Section 44-C of the Panchayat Samiti Act, 1959 are quoted hereunder: "Section 32. - Parties to the petition - The petition may be presented by any person who has filed his nomination. For better appreciation Section 32 of the Orissa Grama Panchayats Act and Section 44-C of the Panchayat Samiti Act, 1959 are quoted hereunder: "Section 32. - Parties to the petition - The petition may be presented by any person who has filed his nomination. (2) A person whose election is questioned and where the petition is to the effect that any other candidate is to be declared elected in place of such person, every unsuccessful candidate who has polled more votes than such candidate shall be made opposite party to the petition. 44-C. Parties to the petition - (1) An election petition may be presented by any candidate as such election. (2) A person whose election is questions and where the petition is to the effect that any other candidate is to be declared elected in place of such person, every unsuccessful candidate who has polled more votes than such candidate shall be made opposite party to the petition." In support of his contention, learned counsel for the respondent cited the decisions reported in (2006) 6 SCC 258 (Kerala State Science & Technology Museum V. Rambal Co. and others), 2008 (I) OLR 80 , (Nibedita Rout v. Mitarani Bhutia), AIR 1964 SC 1249 (Ram Sewak Yadav v. Hussain Kamil Kidwai and others). On the rival submissions of the parties, it is to be considered whether the Court below on the pleadings and materials available on record, prima facie, satisfied regarding recounting of the votes and directed the Collector and the B.D.O. to recount the votes even though they are not party to the election dispute. The respondent as election petitioner filed the election petition and she pleaded that after closure of the polling, the Presiding Officer proceeded to take up the counting of the votes polled in the polling booths in presence of the polling agents of the candidates. In spite of the objection of the polling agent of the respondent (election petitioner), in most of the polling stations, each ballot paper was not scrutinized by the Presiding Officer and some ballot papers not bearing the signature of the Presiding Officer, were counted in favour of the appellant (opp. party in the election dispute). Even some spurious, mutilated ballot papers, whose genuineness could not be established, were also counted in violation of the Orissa Zilla Parishad Election Rules, 1994. party in the election dispute). Even some spurious, mutilated ballot papers, whose genuineness could not be established, were also counted in violation of the Orissa Zilla Parishad Election Rules, 1994. At about 12.58 noon, the Election Officer, after checking the arithmetical correctness of the votes polled by different candidates, declared the total number of votes polled by each contesting candidates. After such official declaration, the respondent (election petitioner) could know that she got 62 votes less than the appellant (opp. party in the Court below). Immediately, thereafter, at 1.00 P.M. the respondent filed an application before the B.D.O.-cum-Election Officer, Jamankira for recounting of the votes stating the grounds for recounting in respect of all the 131 polling booths of the entire Jamankira Zone-I. The Election Officer has acknowledged receipt of the application for recounting. The Election Officer after receipt of the application for recounting, allowed it in part and without assigning any reasons whatsoever directed to recount only the rejected votes instead of recounting the votes of all the 131 booths. After recounting of the rejected ballot papers, discrepancy was found in the rejection of votes. In the said election, finally 9052 votes were recorded in favour of the respondent and the appellant obtained 9121 votes, and as such, the appellant was declared to have won the election by a margin of 69 votes. The respondent obtained information regarding the election under the R.T.I. Act since the Election Officer did not supply information. The petitioner after obtaining the said information; she filed application before the Sub-Collector, Kuchinda. It was also pleaded that more than 100 votes, which were improperly rejected, were cast in her favour and more than 100 votes were also improperly accepted in favour of returning candidate and due to such irregularities, the result of the election has been materially affected. The respondent-also stated that she made oral objection in this regard during counting and recounting, but the same was not accepted by the Election Officer. However, in her evidence she specifically stated that she was informed by her polling agents, who were present during the polling and at the time of counting of votes that some ballot papers cast in her favour were improperly rejected and some ballot papers wherein stamping made in her favour, were not counted. However, in her evidence she specifically stated that she was informed by her polling agents, who were present during the polling and at the time of counting of votes that some ballot papers cast in her favour were improperly rejected and some ballot papers wherein stamping made in her favour, were not counted. The Election Officer declared the result of the election at 12.58 P.M. indicating the total number of votes polled by each candidate, She came to know that she got 62 votes less than the returning candidate. So, she immediately on the same date filed application before the Election officer for recounting of all the votes in all the 131 booths. In her cross-examination she specifically stated that she engaged her polling agents in each polling stations, but could not say specifically the name of her agents. She also could not say from which agent and from which booth she received information regarding counting of rejected votes. She could not say exactly from which polling station the ballot papers were not scrutinized by the Presiding Officer and in which polling station the counted ballot papers were used without giving signature in favour of the returning candidate. She could not say exactly from which polling stations mutilated ballot papers were counted in favour of the elected candidates. It reveals from the deposition of witness No. 3, namely, Fakir Sani, who was the polling agent of the respondent (election petitioner) that he made oral objection before the Presiding Officer regarding rejection of votes. But he could not say which candidate secured how many votes and how many votes were rejected. It appears from the impugned judgment that the Court below framed as many as six issues and considered only issue Nos. 3, 4 and 5 together and came to a conclusion that since the election was conducted as per the notification within scheduled time, there was only an allegation of invalid votes, which were counted in favour of the appellant, thereby declaring her to have won the election, but there was no substantial evidence to come to the conclusion to declare the election as void and not in accordance with law, as laid down under Orissa Zilla Parishad Act. Those are the three issues and decided accordingly. Those are the three issues and decided accordingly. The Court below further held that since the polling officers and election officers have not complied with the provisions laid down under Rules 36 and 37 of the Orissa Zilla Parishad Election Rules, 1994 and the election officer rejected the application of the election petitioner for recounting of all the votes in each booths is not legal. Therefore, he is duty bound to re-examine and recount the same and make necessary correction thereafter, after such recounting. On such finding the Court below directed for recounting of the votes of all the booths. On perusal of the Orissa Zilla Parishad Election Rules, it reveals that Rule 37 (2) was omitted vide S.R.O. No. 871/96 dated 18.11.1996 (O.G.E. No. 1206 dated 11.11.1996). The Court below also did not take into consideration the settled principle in the election petition so far as recounting of votes are concerned as held by the Apex Court in the case of Katinokkula Murali Krishna (supra) which is extracted hereunder: "........before an Election, the Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. (i) the election petition seeking re-count 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. Broadly stated, material facts are primary or basic facts which have to be pleaded by the election petitioner to prove his cause of action and by the defendant to prove his defence. But, as to what could be said to be material facts would depend upon the facts of each case and no rule of universal application can be laid down. In the present case, neither the Court below prima facie satisfied that this is a fit case for recounting nor the parties have pleaded material facts regarding illegality or irregularity committed by the Election Officer while counting and recounting of votes rather the Court below has taken into consideration the Rules 37(2) prescribed under Zilla Parishad Election Rules, which was omitted since 1996. Accordingly, this Court sets aside the judgment dated 4.10.2012 passed by the learned Addl. District Judge, Kuchinda in Election Dispute Case No. 1/1 of 2012 regarding recounting of the votes of all the 131 booths and remits the matter back to the Court below for fresh adjudication. Appeal allowed.