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2013 DIGILAW 162 (ORI)

Dinabandhu Jani v. Hemanta Kanhar

2013-06-20

S.K.MISHRA

body2013
JUDGMENT S.K. Mishra, J. In this writ petition, the petitioner, who happens to be the election petitioner in Election Petition No.1 of 2012 of the court of Civil Judge (Junior Division), Phulbani has assailed the order passed by the said court on 16.01.2013 rejecting the application to call for the ballot papers, counter foils and to summon the Anganwadi Worker to produce the Birth and Death Register. 2. The petitioner and opposite party no.1 were the candidates for the post of Sarpanch of Dutipada Gram Panchayat in the district of Kandhamal. The petitioner challenged the election of opposite party no.1, i.e. returned candidate on the ground that by using muscle power the returned candidate has managed to obtain fake votes in his favour and also has cast vote in the names of some dead persons. At the beginning of the trial the election petitioner filed an application for calling for the counter foils, ballot papers etc. but the same was rejected by the learned Civil Judge (Junior Division), Phulbani holding that the petition has been filed at a premature stage. Thereafter, the petitioner led evidence, examined 25 witnesses and exhibited several documents. Thereafter, the returned candidate also examined witnesses on his behalf. When the case was posted for argument the petitioner filed an application to call for certain documents like ballot papers, counter foils etc and also to direct Anganwadi Worker to produce the birth and death register of the Jamojhori Anganwadi Centre. Such application was resisted by the returned candidate on the ground that the petition is not maintainable as no step has been taken by the election petitioner under Rules 44 and 51 of the Orissa Grama Panchayat Election Rules, 1965 (for short ‘the OGP Election Rules’) and that the petition is based on conjecture and surmise. 3. The learned Civil Judge (Junior Division), Phulbani rejected the petition on the ground that in the original election petition there is no prayer for recounting of votes and production of ballot papers, counter foils and attendance register of the voters. Secondly, he further held that the petitioner has not examined the polling agents to prove that the opposite party no.1 won the election by casting fake votes in the name of dead and absentee voters. 4. Secondly, he further held that the petitioner has not examined the polling agents to prove that the opposite party no.1 won the election by casting fake votes in the name of dead and absentee voters. 4. In assailing the order passed by the learned Civil Judge (Junior Division), Phulbani, the learned counsel for the petitioner submitted that the order is based on wrong appreciation of facts. It is submitted that there is adequate pleading in the election petition regarding the cast of fake votes in favour of voters by dead persons. It is further submitted that such fact has already been shown adequately by the petitioner by leading evidence to that effect. The learned counsel for the opposite party no.1, on the other hand, submitted that the petition for calling for the document is without merit as there has been non-compliance of Rules 44 and 51 of the O.G.P. Election Rules and there was no objection at the time of counting of votes regarding such fraudulent practice adopted by the returned candidate. It is further submitted by learned counsel for the opposite party no.1 that the petition filed by the petitioner does not satisfy the requirements of the law laid down by the Supreme Court for calling for the ballot papers and counter foils and, therefore, the same should be rejected. 5. In course of hearing attention of the Court was drawn to the petition filed by the petitioner. At paragraph-9 of the petition, the petitioner specifically pleaded that the votes have been cast in the name of dead persons like Jogindra Mallick, Suratha Digal and Saraswata Digal, whose names have been placed in the electoral roll at Sl. Nos.85, 170 and 175 and subsequently the same has been elaborated. It is submitted that on the date of declaration of the result, i.e. on 21.02.2012, due to sudden illness the petitioner was unable to attend the office of the opposite party no.3 and approached him for recounting through his authorized agent, but such request was turned down by the opposite party no.3 for reasons best known to him. It is further averred at Paragraph-17 that unless the ballot papers cast in the different wards of Dutipada Gram Panchayat are called for, for recounting by the Court along with the counter foils of the used ballot papers, the election petition cannot be properly adjudicated and the petitioner shall be highly prejudiced. It is further averred at Paragraph-17 that unless the ballot papers cast in the different wards of Dutipada Gram Panchayat are called for, for recounting by the Court along with the counter foils of the used ballot papers, the election petition cannot be properly adjudicated and the petitioner shall be highly prejudiced. In view of such clear pleading on the records, the learned Civil Judge (Junior Division), Phulbani has committed an error on record by holding that there is no pleading for recounting of votes and production of ballot papers and counter foils and attendance register of voters. Moreover, there cannot be any prayer for recounting of votes in the main application as in the main application the petitioner shall pray for declaring election of the returned candidate to be illegal. Thus, the order passed by the learned Civil Judge (Junior Division) on that count is not sustainable. The learned counsel for the opposite party no.1 submitted that in case of non-compliance of Rules 44 and 51 of the OGP Election Rules, 1965 the election petitioner cannot at a later stage pray for recounting of votes or inspection of the ballot papers. The learned counsel for the petitioner in this connection relies on Chandrika Prasad Yadav vs. State of Bihar and others, AIR 2004 SC 0309 wherein the Hon’ble Supreme Court has examined the scope and ambit of Rule 79 of the Bihar Panchayat Election Rules, 1995 and has held that it may be true that only because such application has not been filed before the returning officer by itself may not preclude the Election Tribunal to go into the question of requirement of issuing direction for recounting but there cannot be any doubt whatsoever that Rule 79 serves a salutary purpose. The Hon’ble Supreme Court in Paragraph-27 of the said case further held that if no sufficient explanation is furnished by the election petitioner as to why statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting and rejecting for recounting and order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether the prima facie case for issuance of direction for recounting has been made out. Relying on this ratio this Court comes to the conclusion that the petitioner has pleaded at Paragraph-15 of the petition regarding the approach made by him through his agent before the opposite party no.3 for recounting of votes, which has not been acceded to. Thus, it cannot be said that there is total non-compliance of Rules 44 and 51 of the Orissa Grama Panchayat Election Rules, 1965 and on the basis of same the prayer made by the election petitioner cannot be rejected in limine. 6. The Hon’ble Supreme Court in Bhabhi vs. Sheo Govind and others, AIR 1975 SC 2117 has held that before the Court can order inspection of ballot papers in an election petition, the following conditions are imperative. (i) That it is important to maintain the secrecy of ballot paper which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegation; (ii) That before inspection is allowed, the allegations made against the election candidate must be clear and specific and must be supported by adequate statements of materials facts; (iii) That the Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for recount; (iv) 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; (v) That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in roving inquiry with a view to fish materials for declaring the election to be void; and (vi) 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 recount, and not for the purpose of fishing out materials. 7. Examining the case in the aforesaid perspective laid down by the Hon’ble Supreme Court, it is seen that the order passed by the learned Civil Judge (Junior Division), Phulbani does not take into consideration the various criteria required for consideration of an application for calling for records for recounting of votes, etc. 7. Examining the case in the aforesaid perspective laid down by the Hon’ble Supreme Court, it is seen that the order passed by the learned Civil Judge (Junior Division), Phulbani does not take into consideration the various criteria required for consideration of an application for calling for records for recounting of votes, etc. Thus, this Court comes to the conclusion that in view of the fact that the order passed by the learned Civil Judge (Junior Division), Phulban is based on factually incorrect statement of facts, the petition should be reconsidered by the learned Civil Judge (Junior Division) and he should pass a reasoned order thereon. The writ petition is, therefore, succeeded. The order dated 16.01.2013 passed by the learned Civil Judge (Junior Division), Phulbani is hereby set aside. The matter is remitted back to the court of Civil Judge (Junior Division), Phulbani for reconsideration of the application dated 16.01.2013. The parties are directed to appear before the said court on 08.07.2013.