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2014 DIGILAW 596 (ORI)

Bibhuti Nayak v. Basanta Manjari Nayak

2014-09-15

AMITAVA ROY, B.R.SARANGI

body2014
JUDGMENT AMITAVA ROY, J. 1. The instant appeal puts to challenge the judgment and order dated 20.2.2014 passed in W.P. (C) No. 1960 of 2013 by the learned Single Judge interfering with the order dated 18.1.2013 rendered by the learned Civil Judge (Senior Division), Bhadrak in Election Misc. Case No. 72 of 2012, thus limiting the appellants prayer to recount the ballot papers of Ward No. 3 of Nuagaon Grama Panchayat only so far it pertained to the election of Member to the Basudevpur Panchayat Samiti. 2. We have heard Mr. S.P. Mishra, learned Senior Counsel for the appellant (opposite party in the writ petition) and Mr. K.B. Panda, learned counsel for the Respondent (petitioner in the writ petition). 3. The facts leading to the filing of the instant appeal record that the parties herein had contested for the seat of Member to the Basudevpur Panchayat Samiti from Nuagaon Grama Panchayat and eventually the respondent herein was elected. The appellant filed an election petition under Section 44-A of the Orissa Panchayat Samiti Act, 1959 (hereinafter called in short Act) challenging the election of the respondent on the ground of illegal rejection of votes and improper acceptance of votes in favour of the returned candidate. This petition was registered as Election Misc. Case No. 72 of 2012. On the basis of the averments made in the election petition, she asserted that in fact, the respondent had polled 60 votes less than her. She pleaded that on a request being made by her for recounting of votes against Ward No. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11 and 12, the Election Officer allowed the same qua Ward No. 5, 7, 9, 11 and 12 and that in the exercise so undertaken, 16 valid votes were found to have been cast in her favour, out of which 5 were again illegally rejected and 11 were awarded to her. She stated that on the basis of such incomplete counting, it transpired that she had polled 1231 votes against 1232 votes of the respondent for which the later was declared elected. She stated that on the basis of such incomplete counting, it transpired that she had polled 1231 votes against 1232 votes of the respondent for which the later was declared elected. Detailing the eventualities and the manner in which according to her, valid votes cast in her favour had been improperly rejected and votes had been improperly admitted for the respondent, she insisted for recounting of all the votes polled to adjudge the correct result of the election and on the basis of the same for declaring her to be elected for having secured maximum number of votes and in excess of those actually polled by the respondent. 4. It would be apt at this stage to set out the relevant paragraphs of the election petition constituting the averments forming the foundation of the challenge to the election of the respondent. "3. That in Ward No. 1, 314 votes are polled out of which the petitioner got 180 votes. Out of 180 votes 2 votes were improperly rejected. In fact in those 2 votes the ballot papers are wrongly folded for which the excess mark of cross mark seal appears in symbols not allotted to anybody for the said constituency. In Ward No. 2 in the same process 2 votes of the petitioner have been illegally rejected. In Ward No. 3, 8 votes have been illegally rejected out of which 7 votes have been rejected for the marks in two different symbols, one in Bus and another mark with the none allotted symbol. One vote has been rejected illegally as the seal was given on the line below the symbol. Below the symbol of Bus the symbol of key was there. It was not allotted to anybody. So these 8 votes should be counted in favour of the petitioner. In this Ward, 5 votes have been illegally counted in favour of O.P. In these 5 ballot papers there are clear marks over two symbols allotted to contesting candidates. In Ward No. 4, 3 votes casted in favour of petitioner is illegally rejected for double sealing, but actually the seal over the non allotted symbol appears due to wrong folding. In Ward No. 5, 5 votes casted in favour of the petitioner have been wrongly rejected due to the above reason. In Ward No. 6, 7 votes have been illegally rejected which are casted in favour of petitioner on flimsy ground. In Ward No. 5, 5 votes casted in favour of the petitioner have been wrongly rejected due to the above reason. In Ward No. 6, 7 votes have been illegally rejected which are casted in favour of petitioner on flimsy ground. In Ward No. 8, 26 votes were casted in favour of the petitioner, but 6 votes out of that has been rejected illegally. In Ward No. 9, 10 votes casted in favour of petitioner have been illegally rejected and 2 rejected votes were illegally counted in favour of O.P. In Ward No. 10, 5 votes casted for the petitioner has been illegally rejected. In Ward No. 11, 3 votes and in Ward No. 12, 10 votes have been casted in favour of petitioner have been illegally rejected. 4. That in different Wards about 20 numbers of rejected votes have been illegally counted in favour of O.P. 5. That the polling Agents of the petitioner have objected to the above said illegalities, but those are not taken into accounts and even they are not allowed by the Presiding Officer to note down the serial number of the ballot papers which are illegally rejected by Presiding Officer at the instances of O.P. 6. That in fact the petitioner has got 1280 valid votes. The petitioner filed objection with regard to counting of the votes before the Election Officer and demanded recounting. Election Officer allowed recounting of rejected votes of five Wards i.e. Ward No. 5, 7, 9, 11 and Ward No. 12. Out of the said recounting on 22.2.2012, 16 valid votes are found casted in favour of the petitioner. Out of the said 16 votes, 5 votes have been rejected by the Election Officer illegally and 11 votes counter in her favour and without counting rejected votes of other wards hastily declared the O.P. as the winner by one vote. In fact O.P. has got at least 60 votes less than the petitioner, but as her husband is a member of ruling political party and several times elected as Sarpanch and Member of Samiti and known as an influential political leader, he could managed to influence the election process. 7. That unless all the votes polled will not be recounted, the truth will not come out and the petitioner will be denied justice. 7. That unless all the votes polled will not be recounted, the truth will not come out and the petitioner will be denied justice. In fact the petitioner has been duly elected by a majority of lawful votes, but by improper rejection of the votes casted in favour of the petitioner and admission of rejection of votes in favour of O.P. the O.P. is declared to be elected by getting 1232 votes i.e. one vote more than the petitioner illegally." 5. In her written statement filed by the respondent, she categorically controverted the correctness of the above averments and maintained that she had been validly declared to have been elected to the seat for having secured higher number of votes compared to that of the appellant. She admitted that the margin difference was one (1232-1231). While categorically denying the allegations of improper rejection/reception of votes, the respondent averred further that the election petition was lacking in material facts and particulars and that the election petition had been filed only to harass and intimidate her. 6. That parties examined themselves and also adduced evidence in support of their pleaded versions. During the pendency of the trial, an application was filed by the appellant herein reiterating in substance the assertions in the election petition and seeking recount of used ballot papers of Nuagaon Gram Panchayat in the election. Objection was filed by the respondent and eventually vide order dated 18.1.2013, the Election Tribunal Civil Judge (Senior Division) Bhadrak, on an evaluation of the pleaded facts and evidence on record and being prima facie satisfied that some votes had been illegally rejected as well as improperly admitted in support of both the parties, allowed re-counting of used ballot papers in respect of Nuagaon Gram Panchayat and issued consequential direction to undertake the said exercise in open Court in presence of the parties and their learned counsels. It was observed that such recounting would not cause any hardship to the parties and that it was rather essential for proper adjudication of the case. The Collector District Election Officer, Bhadrak was also directed to send his nominee to be present in Court on the date fixed. 7. It was observed that such recounting would not cause any hardship to the parties and that it was rather essential for proper adjudication of the case. The Collector District Election Officer, Bhadrak was also directed to send his nominee to be present in Court on the date fixed. 7. Being aggrieved, the respondent invoked the writ jurisdiction of this Court in W.P. (C) No. 1960 of 2013 pleading essentially that in absence of adequate facts and particulars in the election petition and evidence, oral and documentary in support of the prayer of recount as contemplated in law, the impugned order was ex facie illegal and mutilative of the sacrosanctity of the ballot papers used in the election. 8. By the judgment and order impugned herein, learned Single Judge on a appraisal of the materials on record as adverted to hereinabove, limited the recounting of ballot papers to Ward No. 3 of the Nuagaon Gram Panchayat only and to this extent modified the order dated 18.1.2013 of the Election Tribunal. Being dissatisfied, the election petitioner is in appeal. 9. Mr. Mishra has insistently argued that having regard to the pleaded averments and the evidence on record, no interference with the decision of the learned Election Tribunal was called for. According to the learned Senior Counsel, it being apparent on the face of the record that there have been improper rejection of votes validly cast in favour of the appellant/election petitioner and improper reception of votes in favour of respondent/ returned candidate, the order of recounting made by the learned Election Tribunal was valid and justified to uphold the sanctity of election, more particularly when the margin of difference was only one vote. Mr. Mishra urged that the conclusion of the learned Single Judge that apart from Ward No. 3, the imputation with regard to improper acceptance and rejection of votes of the parties in other wards was not supported by specific pleadings was against the weight of the materials on record and being patently erroneous, the impugned order so far as it rejected the prayer for recounting of used ballot papers of the other wards is untenable in law and on facts and is thus liable to be interfered with. Learned Senior Counsel argued that the Election Tribunal having on an exhaustive assessment of the pleadings and the evidence on record and being prima facie satisfied that it was necessary in the interest of securing the sanctity of election directed recount of the used ballot papers, the same ought not to have lightly interfered with. The materials on record demonstrate that improper reception of votes in favour of the returned candidate and improper rejection of votes cast in favour of the election petitioner had materially affected the result of the election and thus, the impugned judgment if allowed to stand would impinge upon the sanctity of the election process, he insisted. 10. Per contra, Mr. K.B. Panda, has emphatically argued that the pleadings and the evidence on record being conspicuously bereft of material facts in particular to reinforce the imputation of illegal and improper reception or rejection of votes, no order of recount is permissible in law. While contending that no complaint had ever been made by the polling/counting agent of the election petitioner/appellant before the Returning Officer at any relevant point of time making such accusations, having regard to the constructed scope of recount of used ballot papers no interference with the judgment and order is warranted, he maintained. Drawing the attention of this Court to the relevant excerpts of the evidence adduced by the appellant/election petitioner, the learned counsel has urged that no case at all has been made out for recount. As no evidence has been adduced to rule out in absolute terms the possibility of double marks on the ballot papers, referred to by the election petitioner/appellant, she had failed to establish a prima facie case of improper reception/rejection of votes to justify recounting of ballot papers and thus, this appeal ought to be dismissed summarily, he argued. To buttress his pleas, learned counsel has relied on the decisions of the Apex Court in the case of Kattinokkulola Murali Krishna vs. Veeramalla Koteswara Rao and Others, AIR 2010 SC 24 : 2010 (I) OLR (SC) 66 and Baldev Singh vs. Shinder Pal Singh and Another, (2007) 1 SCC 341 . 11. The rival pleadings, documents appended thereto and the contrasting arguments have been duly assayed. Noticeably the respondent returned candidate has not questioned the verdict in the writ proceeding. 11. The rival pleadings, documents appended thereto and the contrasting arguments have been duly assayed. Noticeably the respondent returned candidate has not questioned the verdict in the writ proceeding. From a plain perusal of the averments made in the election petition, the following salient features bearing on the imputation of improper reception and rejection of votes can be outlined. Ward No. Votes polled Votes of Election petitioner Votes of returned candidate Improper reception of votes in favour of the returned candidate/improper rejection of votes cast for the appellant/election petitioner. 1. 314 180 2 votes improperly rejected for cross marks overlapping two symbols for wrong folding of ballot papers though the second symbol had not been allotted to anybody. 2. 2 votes improperly rejected (as above). 3. 7 votes improperly rejected for the marks in two symbols + one rejected as the seal was given on the line below the symbol. Improper reception of five votes in favour of returned candidate. 4. 3 votes improperly rejected for double marking. 5. 5 votes improperly rejected for double marking. 6. 7 votes illegally rejected on flimsy ground. 8. 6 votes illegally rejected. 9. 10 votes illegally rejected 2 votes illegally counted in favour of the returned candidate. 10. 5 votes illegally rejected. 11. 3 votes illegally rejected. 12 10 votes illegally rejected. All rejections pertain to the election petitioner and admissions to the returned candidate. 12. Apart from the above, it has been pleaded in the election petition that 20 votes had been illegally counted in favour of the respondent returned candidate. Admittedly, on the prayer of the appellant for recount, the Returning Officer had allowed recounting of rejected votes of Ward No. 5, 7, 9, 11 and 12 following which 16 votes were found cast in favour of the writ petitioner/appellant. However, five votes were rejected therefrom and on adding, the remaining 11 votes, the margin of difference got reduced to one for which the respondent was declared to be elected. 13. The result of the recount of votes in these five wards, in the backdrop of the imputation of the improper reception/rejection of votes thus by no means can be lightly discarded particularly, in the perspective of the feeble margin of one vote by which the respondent was declared to be elected on the basis of that exercise. 13. The result of the recount of votes in these five wards, in the backdrop of the imputation of the improper reception/rejection of votes thus by no means can be lightly discarded particularly, in the perspective of the feeble margin of one vote by which the respondent was declared to be elected on the basis of that exercise. A plain perusal of the order dated 18.2.2013 would divulge that the learned Election Tribunal duly took note of the rival pleadings and the evidence on record and concluded that there was prima facie material to hold that some votes had been illegally rejected and admitted in support of both the parties. To reiterate, it was of the considered opinion that recount as prayed for, if allowed, no hardship would be caused to either of the parties. 14. The appellant/election petitioner in her deposition in-chief substantially reiterated the averments made in the election petition. It was stated further that though her polling agent had objected to the illegalities, the same was not taken into account and the Presiding Officer did not allow the polling agent to note down the serial numbers of the ballot papers illegally rejected at the instance of the returned candidate. Allegation of political influence by the returned candidate to secure result in her favour was also made. In her cross-examination, she deposed that recount had been made of the rejected votes for the five booths instead of 12 booths. She admitted that her polling agent had reported to her regarding the number of rejected ballots. She stated further that there was six to seven booths in her Panchayat. She also could not recall the number of votes cast in Booth No. 7 or the serial numbers of the used ballot papers illegally accepted in favour of the returned candidate. Her witness Paresh Ch. Das, counting agent for Ward No. 2, testified that out of 123 ballot papers cast in her favour, two were rejected though voting cross mark did appear prominently on her symbol, but due to wrong folding of ballot papers, faint impression thereof was carried to another symbol not assigned to anybody. In cross examination, this witness could not recall the serial number of the ballot papers rejected. He stated to have verbally complained before the Presiding Officer but admitted of not having filed any written objection before the Election Officer. 15. In cross examination, this witness could not recall the serial number of the ballot papers rejected. He stated to have verbally complained before the Presiding Officer but admitted of not having filed any written objection before the Election Officer. 15. Her next witness, Krupasindhu Mallik, counting agent for Ward No. 1 deposed that out of 180 valid votes cast in her favour, two were illegally rejected for the same reason as referred to by Sri Paresh Chandra Das. He too, in his cross examination admitted to have complained verbally to the Presiding Officer, but not in writing. 16. Her witness, Chandra Sekhar Rout, who was polling and counting agent for Ward No. 3 stated that out of the votes polled by her, eight were illegally rejected and five were illegally admitted in favour of the returned candidate. According to this witness, out of the eight votes rejected, seven though had clear mark on the symbol of the appellant/ election petitioner, due to wrong folding of the ballot papers, faint impression was carried to other symbol not assigned to anybody. This witness also deposed that the five votes which are illegally counted in favour of respondent were having two voting cross marks in two symbols. 17. Her witness Raghunath Mallik claimed to have been present during the counting of votes as an agent of Zilla Parishad in Ward No. 12. He stated that 258 votes had been cast in favour of the appellant/election petitioner, out of which ten were illegally rejected due to double, marking for wrong folding of ballot papers, as a result whereof the voting mark though, on her symbol, a faint impression got transmitted to a symbol not allotted to anybody. 18. The evidence of the respondent/returned candidate and her witness is one of denial and reiteration of her pleaded case. 19. Emphatic denunciation of the pleadings and evidence of the appellant/election petitioner to be lacking in material facts and particulars, notwithstanding, we are of the reasonable comprehension that the ultimate conclusion recorded by the learned Election Tribunal on a cumulative consideration of all aspects cannot be readily repudiated to be indefensible, illogical or unsound in law. 20. 19. Emphatic denunciation of the pleadings and evidence of the appellant/election petitioner to be lacking in material facts and particulars, notwithstanding, we are of the reasonable comprehension that the ultimate conclusion recorded by the learned Election Tribunal on a cumulative consideration of all aspects cannot be readily repudiated to be indefensible, illogical or unsound in law. 20. In our estimate, the election petition read with the evidence adduced by the election petitioner did provide a factual foundation to project a prima facie case for ordering recount of the ballot papers of Nuagaon Gram Panchayat used for election to the post of Member, Basudevpur Panchayat Samiti. 21. The expression prima facie and prima facie case as defined in the Black Dictionary, 8th Edition are extracted as hereunder:- Prima facie – Sufficient to establish a fact or raise a presumption unless disproved or rebutted. Prima facie case – The establishment of a legally required rebuttable presumption. 22. The precedential enunciation on the scope of inspection and recount of used ballot papers in an election does not admit as on date of any dissension and therefore, it is inessential to traverse the entire gamut of the pronouncements on the issue. Suffice it would be to extract the following paragraph 11 of the rendition in Kattinokkula Murali Krishna supra. "11. Before examining the merits of the issues raised on behalf of the parties, it would be appropriate to bear in mind the salutary principle laid down in the election law that since an order for inspection and recount of ballot papers affects the secrecy of ballot, such an order cannot be made as matter of course. Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out. The importance of maintenance of secrecy of ballots and the circumstance under which that secrecy can be breached, has been considered by this court in several cases. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order recount, two basis requirements viz. The importance of maintenance of secrecy of ballots and the circumstance under which that secrecy can be breached, has been considered by this court in several cases. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order recount, two basis requirements viz. (i) the election petition seeking recount of the ballot papers must contain and 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 disputed 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." 23. That adequate statement of all material facts on which the allegation of irregularity or illegality in counting is founded and the evidence in support thereof for generating prima facie satisfaction of the Election Tribunal to do complete and effective justice between the parties in the process of deciding dispute though has been ordained to be of imperative necessity, their Lordships did observe that what can be said to be material facts would depend on the facts of each case and no rule of universal application can be laid down. Notwithstanding the emphasis on the secrecy of ballot being sacrosanct has been stressed upon, an exception to the insulation thereto from scrutiny has been carved out, if strong prima facie circumstances to suspect the purity, propriety and legality in the counting of votes are made out. Thus, if sacrosanctity of ballot papers is pitted against solemnity, purity and authenticity of an election process, recount of ballot papers, if a prima facie case so justifies, ought to be permitted to resolve the dispute and ensure complete justice between the parties. 24. Thus, if sacrosanctity of ballot papers is pitted against solemnity, purity and authenticity of an election process, recount of ballot papers, if a prima facie case so justifies, ought to be permitted to resolve the dispute and ensure complete justice between the parties. 24. In the attendant facts and circumstances judged on the above touchstone, we are of the view that for the adjudication of the lingering dispute between the parties and to ensure complete justice, all used ballot papers of Nuagaon Gram Panchayat ought to be subjected to recount. This is more so, as election to a public office is involved. Added to the above reasons for adopting this course is also the noticeable fact that the margin of difference in the votes polled by the parties is one. 25. We do endorse the finding recorded by the learned Election Tribunal and restore the 9rder dated 18.1.2013 passed by it. The impugned judgment and order dated 20.2.2014 passed by the learned Single Judge in W.P. (C) No. 1960 of 2013 is set aside. The appeal is allowed. 26. The parties would appear before the learned Civil Judge (Senior Division), Bhadrak on 22.9.2014 and take further orders from it to complete the exercise at the earliest. B.R. SARANGI, J. I agree. Appeal allowed.