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2013 DIGILAW 330 (ORI)

Sandhya Rani Pradhan v. Sandhya Bati Putel

2013-08-22

S.C.PARIJA

body2013
ORDER 22.08.2013 – Heard learned counsel for the parties. This writ petition has been filed challenging the order dated 15.09.2012, passed by the learned Civil Judge (Senior Division), Bhawanipatna, in Election Petition No. 17 of 2012, allowing the application of opposite party No.1 for recounting of votes. The case of the petitioner is that he and opposite party No. 1 contested for the election for the post of Samiti Member of Chheliamal Gram Panchayat Zone-2, which was held on.15.02.2012. In the result announced, the present petitioner was declared elected as the Samiti Member of Chheliamal Gram Panchayat Zone-2, having secured majority of the votes. Being aggrieved by the result of the election, opposite party No.1 filed Election Petition No. 17 of 2012, before the learned Civil Judge (Senior Division), Bhawanipatna, praying for recounting of votes and to declare the present petitioner disqualified. Subsequently, during the hearing of election petition, opposite party No.1 filed an application for recounting of votes, on the ground that the main controversy between the parties is with regard to actual number of votes each has secured and to find out the real dispute between the parties and for proper adjudication, the votes secured by the opposite party No.1 and the petitioner needs to be recounted through the process of Court. In the affidavit in evidence filed by opposite party No.1, she has stated that though she had secured more votes in the election, the petitioner has been declared elected and some invalid votes have been added in favour of the present petitioner and many valid votes cast in favour of opposite party No.1 have been rejected. Learned Civil Judge, considering the grounds taken in the election petition and going through the evidence adduced by opposite party No. 1, has come to hold that there are sufficient materials which satisfies the mandatory requirements for recounting of votes, which is necessary for efficacious and effective adjudication of the dispute between the parties. Accordingly, learned Civil Judge has directed for production of the ballot papers for recounting of the same. Learned counsel for the petitioner, with reference to the pleadings made in the election petition and the evidence of opposite party No.1 submits that as no material particulars have been pleaded and proved to make out a prima facie case with regard to the illegality and/or impropriety in the counting of votes, the impugned order cannot be sustained. Learned counsel for the petitioner, with reference to the pleadings made in the election petition and the evidence of opposite party No.1 submits that as no material particulars have been pleaded and proved to make out a prima facie case with regard to the illegality and/or impropriety in the counting of votes, the impugned order cannot be sustained. In this regard, it is submitted that as the allegations made in the election petition are bald and vague and the evidence adduced by opposite party No.1 did not specify the number of votes which is alleged to have been wrongly counted in favour of the present petitioner and no such objection having been filed before the Presiding Officer or the Election Officer during the counting of votes, such belated plea, which is merely an after thought, could not have been taken into consideration by the learned Civil Judge, in order to direct for recounting of votes. It is submitted that recounting of votes cannot be permitted to cause a roving enquiry, which would destroy the secrecy of ballots. Learned counsel appearing for opposite party No.1 while supporting the impugned order submits that as the materials produced by opposite party No.1 before the learned Civil Judge was found to be sufficient to justify recounting, the impugned order cannot be faulted. On perusal of the averments made in the election petition, it is seen that the opposite .party No. 1 had merely stated that there has been some illegality in the counting of votes and that some valid votes cast in her favour have been rejected and some invalid votes have been added in favour of the present petitioner. In the application filed by opposite party No.1 for recounting before the learned Civil Judge, no material particulars have been furnished except that recounting of votes is necessary to adjudicate the dispute between the parties. In the affidavit in evidence filed under Order 18, Rule 4, CPC, opposite party No. 1 has merely stated that some invalid votes have been counted in favour of the present petitioner and some valid votes cast in her favour have been rejected. In her cross-examination, she has admitted that she cannot say how many rejected votes have been counted in favour of the present petitioner and how many valid votes cast in her favour have been rejected. In her cross-examination, she has admitted that she cannot say how many rejected votes have been counted in favour of the present petitioner and how many valid votes cast in her favour have been rejected. She further stated in the cross-examination that she cannot say an which date she made her representation to the Collector and the Election Officer for recounting and who scribed such representation in favour of the present petitioner. In view of the above facts, it cannot be said that opposite party No.1 has furnished any material particulars either in the pleadings or in her evidence so as to justify the impugned order of recounting. It is well settled in law that inspection and recounting of ballot papers cannot be directed as a matter of course, as the same affects the secrecy of ballots. See Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao and ors., AIR 2010 SC 24 , 2010 (I) OLR (SC) 66. In view of the above, the impugned order dated 15.09.2012, passed by the learned Civil Judge (Senior Division), Bhawanipatna, in Election Petition No. 17 of 2012, cannot be sustained and the same is accordingly set aside. The writ petition is accordingly allowed. Issue urgent certified copy as per rules. Petition allowed.