Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 174 (ORI)

Gitanjali Sahu v. Mamata Badatya

2014-03-14

B.K.NAYAK

body2014
JUDGMENT B.K. NAYAK, J. : Judgement dated 12.02.2013 under Annexure-1 passed by the learned Additional Civil Judge (Junior Division), Digapahandi in Election Petition No.1 of 2012 and the judgment dated 20.08.2013 under Annexure-2 passed by the learned District Judge, Ganjam in Election Appeal No.3 of 2013 confirming the judgment passed in Election Petition No.1 of 2012 have been challenged in this writ petition by the petitioner. 2.The petitioner, opposite party No.1 and some other candidates contested the election for the office of Sarpanch of Jiura Grama Panchayat under Sanakhemundi Block in the district of Ganjam. In the election the present petitioner got 1015 number of votes as against her nearest rival, opposite party No.1, who secured 760 votes and accordingly the petitioner was declared elected. The petitioner’s election as Sarpanch was challenged by opposite party No.1 in the Court of the Additional Civil Judge (Junior Division), Digapahandi in Election Petition No.1 of 2012. Election of the petitioner was challenged on the ground that the petitioner along with her henchmen resorted to all sorts of unfair and corrupt practices during election. It was also alleged that the petitioner committed rigging of votes during polling in Ward Nos.4, 7, 8 and 11. It is stated that in Ward No.4 a voter, namely, Pramod Sahu, son of Raghunath Sahu was prevented from casting his vote and one Pramod Sahu S/o. Bancha belonging to congress party voted in his place. The supporters of the petitioner managed to cast the vote of one Nisakumari Patra of Ward No.7, who was not available in the village during voting. Some voters of Ward No.7, who are permanently domiciled at Berhampur and are registered as voters of Berhampur municipality, did not cast their vote, but the petitioner managed to cast their votes through other persons. One vote in Ward No.8 and one vote in Ward No.11 were forcibly polled in favour of the petitioner by his supporters, preventing those two voters to cast their vote under fear of injury. It was also alleged that there has been improper acceptance of votes in favour of the petitioner and improper rejection of valid votes polled by opposite party No.1. The allegations of improper acceptance and rejection of votes have been averred in paragraphs-7 and 8 of the election petition filed by opposite party No.1 before the Court below which are extracted hereunder : “7. The allegations of improper acceptance and rejection of votes have been averred in paragraphs-7 and 8 of the election petition filed by opposite party No.1 before the Court below which are extracted hereunder : “7. It is submission of the petitioner that the mischief and misdeeds of the OP No.4 and her supporting elements did not stop there. In Ward No.6 the petitioner’s husband was contesting for the office of Ward Member and even he was detained in the jail custody during election period, he got 149 votes whereas the petitioner secured 149 votes as against 36 votes polled in favour of OP No.4. The counting results was declared by the Presiding Officer of Ward No.6 in presence of the petitioner’s agent Simanchal Sahu. But taking advantage of the absence of the petitioner’s husband, the opposite party No.4 and her supporters malinfluenced upon the Presiding Officer of Ward No.6 and altered the result of counting recorded in Form No.8A. The petitioner asserts that she has bagged 149 votes as against 36 secured by OP No.4. But the figure 149 was maliciously mentioned in the result sheet of counting of votes against the name of OP No.4 and 36 was mentioned in the name of the petitioner by the OP No.3. The reality would be disclosed if the polling of votes of the aforesaid Ward No.6 would be verified. During initial counting of votes by the Presiding Officers 873 votes were found in favour of the petitioner as against 902 in favour of the OP No.4 and thus there was a difference of only 29 votes even after admission of a large number of unlawful votes in favour of the OP No.4 and rejection of valid votes polled in favour of the petitioner. But after manipulation of the counting results in the result sheet by OP No.3, the Election Officer declared that the OP No.4 bagged 1015 votes as against petitioner was shown to have procured 760 leaving 83 votes to have rejected. 8. But after manipulation of the counting results in the result sheet by OP No.3, the Election Officer declared that the OP No.4 bagged 1015 votes as against petitioner was shown to have procured 760 leaving 83 votes to have rejected. 8. It is further submission of the petitioner is that the OP No.4 was declared to be elected by reason of wrong recording of counting results in the result sheet of Ward No.6, he improper rejection of valid votes polled in favour of petitioner and admission of more rejected votes in favour of OP No.4 and thus for the aforesaid reasons the OP No.4 ought not be declared to be elected by a majority of lawful votes. Ballotes not found with cross mark against the symbol have also been wrongfully admitted in favour of O.P. No.4. Immediately after totaling of counting of votes mentioned in result sheets, when OP No.4 was declared to have been elected, the petitioner through her agent claimed to recount the votes polled in all the 11 booths, but unfortunately the Election Officer refused to take up the recounting process. So it is imperative to call for the used ballots from the custody of OP No.1 for the purpose of reexamination and recounting of the same for ensuring fair election in order to respect the constitutional mandate and to do justice to the petitioner.” 3.All the allegations made in the election petition were denied by the present petitioner in her show cause. Opposite party No.1 during the course of proceeding before the Court below filed a petition on 20.04.2012 inspection of all used ballots in all the eleven wards of the Grama Panchayat and for recounting the same. In the said petition a reference was made to the averments made in paragraph-7 of the election petition. The petition was resisted by the present petitioner, who filed her objection stating that the averments made in the election petition do not justify inspection of ballots and recounting of votes. It was also stated that on the date of counting neither the election petitioner nor her agents raised any objection. It was also stated that in the election petition no prayer for recounting of ballot papers has been made. It was also stated that on the date of counting neither the election petitioner nor her agents raised any objection. It was also stated that in the election petition no prayer for recounting of ballot papers has been made. 4.By order dated 16.01.2013 the learned Civil Judge (Junior Division), Digapahandi allowed the petition stating that for fair and just decision of the case all the ballots papers be produced for recounting. The said order has been annexed as Annexure-11 to the additional affidavit filed by the present petitioner. Thereafter, the learned Civil Judge (Junior Division) recounted all the used ballot papers of the Grama Panchayat in presence of the parties and their advocates and came to find that on recounting the opposite party (election petitioner) secured 867 votes and the present petitioner got 811 votes. 5.On the basis of the recounting of votes made by him the learned Civil Judge (Junior Division) came to hold that the present petitioner did not raise any objection to recounting of votes and thus answered issue No.iii holding that the opposite party (election petitioner) secured 55 votes more than the present petitioner and accordingly passed judgment setting aside the election of the present petitioner and declaring present opposite party No.1 as elected. The judgment of the Civil Judge (Junior Division ) has been confirmed by the learned District Judge, Ganjam by upholding the recounting of votes by the learned Civil Judge. 6.The learned counsel for the petitioner submitted that there was no justifiable ground for inspection and recounting of votes particularly when there was no necessary pleading of material facts. It is submitted that even taking the averments made in paragraph-7 of the election petition to be correct, it shows that the petitioner polled 902 votes and opposite party No.1 secured 873 votes and, therefore, the election petition should have been dismissed on that ground and direction for recounting was not justified. It is also his submission that no reason was given by the learned Civil Judge for directing inspection and recounting of ballots. It is also his submission that even though on recounting by the Court opposite party No.1 was found to have secured more votes than the petitioner, still then the said result cannot be accepted and petitioner’s election cannot be set aside since there was no justification at all for the directing recounting of votes by the trial Court. It is also his submission that even though on recounting by the Court opposite party No.1 was found to have secured more votes than the petitioner, still then the said result cannot be accepted and petitioner’s election cannot be set aside since there was no justification at all for the directing recounting of votes by the trial Court. The learned counsel for opposite party No.1, on the other hand, submitted that the petitioner did not raise any objection to the recounting of votes and that on recounting by Court the opposite party No.1 having found to have secured more votes than the petitioner, the Courts below are justified in setting aside the election of the petitioner and declaring opposite party No.1 as elected and as such the impugned orders warrant no interference. 7.In the case of Ram Sewak Yadav v. Hussain Kamil Kidwai : AIR 1964 SC 1249 , the apex Court held that an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the election petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interest of justice requires, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper rejection, refusal or rejection of votes will not be sufficient to support an order for inspection. To establish a case so pleaded an order for inspection may undoubtedly, if the interest of justice requires, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper rejection, refusal or rejection of votes will not be sufficient to support an order for inspection. 8.With regard to requirements which may justify recounting of votes the apex Court in the case of D.P. Sharma v. Commissioner and Returning Officer : AIR 1984 SC 654 observed as follows in paragraph-4 thereof : “It is well established that in order to obtain recount of votes a proper foundation is required to be laid by the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidates which had in reality been cast in favour of the defeated candidates.” In the case of Vadivelu v. Sundaram and others : (2000) 8 SCC 35, the apex Court has held that the petitioner, who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the Court is satisfied about the truthfulness of the above allegations it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. In the case of M. Chinaswamy v. K.C. Pallaniswamy : (2004) 6 SCC 341 , it has been held by the apex Court that the question as to what would constitute material facts would however depend upon the facts and circumstance of each case. It is trite that an order of recounting of votes can be passed when the following ingredients are satisfied; (i) if there is a prima-facie case; (ii) material facts therefor are pleaded; (iii) the Court shall not direct recounting by way of roving or fishing enquiry; and (iv) such an objection had been taken recourse to. The direction for recounting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow. The direction for recounting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow. 9.It is pleaded in paragraph-7 of the election petition that the Election Officer declared the present petitioner to have secured 1015 votes whereas opposite party No.1 secured 760 votes. With regard to improper acceptance of invalid votes in favour of the petitioner and improper rejection of valid votes polled by opposite party No.1, it is asserted in paragraph-7 of the election petition that in ward No.6 opposite party No.1 (election petitioner) secured 149 votes and the present petitioner secured 36 votes, but the Presiding Officer of the ward illegally and maliciously mentioned in the result sheets that the present petitioner secured 149 votes and opposite party No.1 secured only 36 votes. 10.If the entire allegations made in paragraph-7 of the election petition are taken to be correct, still then the result would work out to the petitioner securing 902 votes and opposite No.1 securing 873 votes and therefore the petitioner gets elected by margin of 29 votes against his nearest rival, opposite party No.1. There was also no pleading of material facts as to improper rejection and acceptance of votes. The pleadings considered in the light of the decisions of the apex Court seen above did not justify an order for recounting of votes. The contention of the learned counsel for opposite party No.1 that no objection was raised from the side of the petitioner for recounting of votes is not correct as apparent from the order dated 16.01.2013 whereby the learned Civil Judge (Junior Division), Digapahandi allowed the petition of opposite party No.1 for recounting of votes. 11.The learned counsel for opposite party No.1 raises the contention that after recounting of votes by the learned Civil Judge (Junior Division) opposite party No.1 has been found to have secured more votes than the petitioner and hence been elected. This contention is not acceptable in view of the law laid down by the Hon’ble apex Court in the case of Udey Chand v. Surat Singh : (2009) 10 SCC 170 where without there being any justification for recounting the election tribunal recounted the votes and resultantly found the election petitioner to have secured more votes than the returned candidate, the Hon’ble apex Court held as follows : “32. Before parting with the case, we may also deal with the contention urged on behalf of the election petitioner to the effect that re-counting having taken place in terms of the Tribunal’s order, this appeal is rendered infructuous. The arguments is noted to be rejected. An order of re-count of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of re-count is made and not from the result emanating from he re-count of votes.” Similar view has also been expressed in the case of V.S. Achuthanandan v. P.J. Francis : (2001) 3 SCC 81 and the case of M. Chinaswamy (supra). 12.For the reasons as aforesaid the recounting of votes by the learned Additional Civil Judge (Junior Division), Digapahandi in Election Petition No.1 of 2012 and setting aside the election of the petitioner on the basis of result of such recounting cannot be sustained. The judgment passed by the learned District Judge, Ganjam in Election Appeal No.3 of 2013 mechanically confirming the order of the learned of Civil Judge also cannot be upheld. 13.Accordingly, the impugned judgments under Annexures-1 and 2 are quashed and the writ petition is allowed. No costs. Petition allowed.