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2014 DIGILAW 777 (ORI)

Babaji Dhal v. Election Officer-cum-B. D. O.

2014-11-19

C.R.DASH

body2014
JUDGMENT C.R. Dash, J. 1. This writ application has been filed by the petitioner impugning the order dated 26.06.2014 passed by the learned Civil Judge (Junior Division), Pattamundai in Election Misc. Case No. 7 of 2012 directing production of used, counted and rejected ballots of Balabhadrapur Grama Panchayat under Pattamundai Panchayat Samiti in the district of Kendrapara for inspection. The present petitioner is the elected Sarpanch and present opposite party No. 2 is the defeated candidate. The election for the post of Sarpanch was held on 13.02.2012 and the result was published on 24.02.2012. The petitioner was assigned with the symbol of "Open Book" and opposite party No. 2 was assigned with the symbol of "Fish" in the said election. In the election, the petitioner polled 1288 votes, opposite party No. 2 polled 1285 votes and 53 votes were rejected. The petitioner was thus declared elected by margin of 3 votes. Subsequently, opposite party No. 2 moved the Election Officer for recounting. The prayer was allowed by the Election Officer. In recounting, the petitioner was found to have polled 1292 votes, opposite party No. 2 was found to have polled 1291 votes and 43 votes were rejected. After recounting, the petitioner was declared to be elected thus by a margin of one vote. 2. The present opposite party No. 2 filed Election Misc. Case No. 7 of 2012 on various grounds, inter alia, grounds of multiple voting, non-affixture of prescribed rubber stamp, impersonation by some of the voters and so on in different booths. Altogether polling was held in 11 booths for the Grama Panchayat. 3. In course of the proceeding, present opposite party No. 2 filed a petition for production of used, counted and rejected ballots for inspection. The said petition was rejected by the Election Tribunal vide order dated 06.09.2012. Opposite party No. 2 moved this Court in W.P.(C) No. 17720 of 2012. The writ application was disposed of on 02.07.2013 with the following observation:- "However, the learned court below is directed to immediately proceed with the trial of the Election Misc. Case and dispose of the same within a period of four months from the date of production of certified copy of this order. If any fresh petition is filed by the petitioner at the appropriate stage for recounting, that may be considered on its own merit." 4. Case and dispose of the same within a period of four months from the date of production of certified copy of this order. If any fresh petition is filed by the petitioner at the appropriate stage for recounting, that may be considered on its own merit." 4. Opposite party No. 2 filed another petition for production of used, counted and rejected ballots for inspection and recounting. Such petition was filed after closure of evidence from both the sides. 5. Learned Election Tribunal, on consideration of the materials on record and evidence adduced, took view in favour of recounting and passed the impugned order for production of used, counted and rejected ballots for inspection. The said order is impugned in this writ application. 6. Mr. Manoj Kumar Mohanty, learned counsel for the petitioner submits that the Election Tribunal has erred in ordering recount of votes, when the petitioner (opposite party No. 2 here) has not made out a prima facie case for order of recounting. It is further submitted that secrecy of the ballot being sacrosanct, the same could not have been violated by ordering recount until a prima facie case of compulsive nature had been made out by the defeated candidate (opposite party No. 2). Learned counsel for the petitioner further submits that the learned Election Tribunal has not properly followed the salutary principles of law pronounced by the Hon'ble Supreme Court in different cases and order of recount of votes has been passed: (I) When the Election Petition does not contain an adequate statement of all the material facts, on which the allegation of irregularity or illegality in counting are founded; (II) When on the basis of the evidence adduced, such allegations are prima facie not established, affording a good ground for believing that there has been a mistake in counting; (III) When the Election Tribunal is not prima facie satisfied that making of such an order of recounting is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties; Mr. Mohanty, learned counsel for the petitioner relies on a catena of decisions to substantiate his contentions. 7. Mr. Amiya Kumar Mohanty, learned counsel appearing for the opposite party No. 2 oppugns the contentions raised by learned counsel for the petitioner and supports the impugned order. Mohanty, learned counsel for the petitioner relies on a catena of decisions to substantiate his contentions. 7. Mr. Amiya Kumar Mohanty, learned counsel appearing for the opposite party No. 2 oppugns the contentions raised by learned counsel for the petitioner and supports the impugned order. He does not dispute the principle of law enunciated by the Hon'ble Supreme Court and this Court so far as recounting of vote by the learned Election Tribunal is concerned. But he submits that the conditions for recount have been well satisfied in his pleadings by the opposite party No. 2 and in the evidence adduced on his behalf. It is further submitted by Mr. Mohanty, learned counsel for opposite party No. 2 that, when the finding of the learned court below is not perverse, no interference by this Court in exercise of writ jurisdiction is called for. He also relies on a number of decisions of the Hon'ble Supreme Court and this Court to substantiate his contention. 8. So far as the decision relied on by learned counsel for the parties are concerned, both of them having relied on a number of decisions so far as conditions precedent for ordering recount of votes in election proceeding is concerned, all the decisions need not be extracted here for the sake of brevity. 9. The Hon'ble Supreme Court, in the case of Ram Sewak Yadav vs. Hussain Kamil Kidwai and others, AIR 1964 SC 1249 , has ruled regarding the principles, which should govern the field in ordering recount of votes in an election proceeding. That is a Five Judges Bench decision. The salutary principles enunciated by the Hon'ble Supreme Court in the aforesaid case has been followed consistently till date and the principles have remained the same. It would, therefore, suffice to quote the observation of the Hon'ble Supreme Court in this regard in the recent case of Kattinokkula Murali Krishna vs. Veeramalla Koteswara Rao and others, AIR 2010 SC 24 in paragraph- 11 of the judgment, which runs as follows:- "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 re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a 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 circumstances 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 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." 10. So far as the aforesaid principles of law is concerned, reference may be made to Dr. Jagjit Singh vs. Giani Kartar Singh, AIR 1966 SC 773 , R. Narayanan vs. Semmalai, AIR 1980 SC 206 , P.K.K. Shamsudeen vs. K.M. Mappillai Mohindeen and others, AIR 1989 SC 640 , Chandrika Prasad Yadav vs. State of Bihar and others, AIR 2004 SC 2036 , M. Chinnasami vs. K.C. Palanisami and others, AIR 2004 SC 541 , Jitendra Bahadur Singh vs. Krishna Behari and others, AIR 1970 SC 276 , Vadivelu vs. Sundaram and others, (2000) 8 SCC 355 , Mahant Ram Prakash Das vs. Ramesh Chandra and others, 1999 (9) SCC 420 , Udey Chand vs. Surat Singh and others, 2010 (1) CLR (SC) 371, Nihar Ranjan Bisoi vs. Election Tribunal-cum-District Judge, Jeypore, 2006 (1) OLR 796 , Jagannath Sethi vs. Adikanda Palata and others, 2014 (1) OLR 521 , Ananda Chandra Ojha vs. Ashok Saha, 2013 (1) OLR 575 . 11. Mr. 11. Mr. Manoj Kumar Mohanty, learned counsel for the petitioner relying on the case of Chandrika Prasad Yadav, AIR 2004 SC 2036 (supra) submits that narrow margin of votes between the returned candidate and election petitioner by itself is not sufficient for issuing direction for recounting. He strenuously submits that opposite party No. 2 having not pleaded regarding the material facts in election petition as well as the petition seeking recounting and there being no cogent evidence regarding the irregularity in the voting process, order of recounting is vitiated. 12. Mr. Amiya Kumar Mohanty, learned counsel for opposite party No. 2 submits that it is well settled that while maintenance of secrecy of ballot is sacrosanct, maintenance of purity in election is equally important. He relies in the case of Nihar Ranjan Bisoi (supra) to substantiate his contention that, when purity in election had been in question, it was proper for the Election Tribunal to order recounting, especially when the margin of vote is only one vote in the present case. 13. Mr. Amiya Kumar Mohanty, learned counsel for opposite party No. 2 with all persuasiveness relies on the case of R. Narayanan vs. S. Semmallai, AIR 1980 SC 206 , which reads as follows:- "If the lead is relatively little and/or other legal infirmities or factual flaws hover around, recount is proper, not otherwise. In short, where the difference is microscopic, the stage is set for a recount given some plus point of clear suspicion or legal lacuna, militating against the regularity, accuracy, impartiality or objectivity bearing on the original counting." The Hon'ble Supreme Court, though has made the above observation, in paragraph- 25 of the judgment in the aforesaid case has observed thus:- "Although no cast iron rule of universal application can be or has been laid own, yet from a beadroll of the decisions of this Court two broad guidelines are discernible, that the Court would be justified in ordering a recount or permitting inspection of the ballot papers only where (i) all the material facts on which the allegations of irregularity or illegality in counting are founded, are pleaded adequately in the election petition and (ii) the Court/Tribunal trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties." 14. In view of such ruling, the observation of the Hon'ble Supreme Court in the case of R. Narayanan regarding microscopic margin in votes does not lead to any conclusion that, if the lead is relatively little, recount is imperative. A little lead may be an additional ground for ordering recount of votes, if infirmity or factual flaws hover around and there is suspicion or legal lacuna, militating against the regularity, accuracy, impartiality, or objectivity bearing on the original counting. This Court in the case of Rabindra Kumar Mallick vs. Panchanan Kanungo and others, 1998 (II) OLR 214, has also held that no doubt, the smallness of margin between the victor and the vanquished is a relevant factor, but that by itself is not sufficient. Hon'ble Supreme Court, in the case of Kattinokkulla Murali Krishna, AIR 2010 SC 24 supra has also ruled that a narrow margin of votes between the returned candidate and the petitioner does not per se give rise to a presumption that there has been an irregularity or illegality in the counting of votes. 15. Mr. Amiya Kumar Mohanty, learned counsel for the opposite party No. 2 relies on the case of Nihar Ranjan Bisoi (supra) to bring home the point that maintenance of purity of election is equally important. 16. I do not dispute the contention. If it is the duty of the Election Tribunal to preserve the secrecy of ballot, it is also its duty to see that purity in the election process had been maintained. But to arrive at the satisfaction as to whether there has been some lacuna, irregularity, inaccuracy, partiality or subjectivity bearing on the original counting, the election petitioner is duty bound to provide adequate statement of material facts in the election petition and the Court must be prima facie satisfied about the impurity in the counting process. 17. It is not the law that the Court must balance between the secrecy of ballot and the purity of election process. Secrecy of ballot, the Election Tribunal must preserve and purity of election process has to be found out only after conditions for recounting as discussed (supra) are satisfied to show that there has been impurity in the election process. In other words, the principle of "secrecy of ballot" is not absolute. It must yield to the principle of "purity of election" in larger public interest. In other words, the principle of "secrecy of ballot" is not absolute. It must yield to the principle of "purity of election" in larger public interest. "Secrecy of ballot" principle presupposes a validly cast vote, the sanctity and sacrosanctness of which must in all events be preserved. When it is talked of ensuring free and fair elections, it is meant elections held on the fundamental foundation of purity and the "secrecy of ballot" as an allied vital principle. Secrecy of ballot therefore has to be preserved until a case to show impurity in election process is made out on the basis of principles discussed supra. Such being the position of law, it is now the stage to find out whether the election petition satisfies the conditions precedent for seeking recount of votes in the proceeding. 18. Paragraphs- 5 to 11 of the election petition speaks about casting of votes by some voters impersonating some other voters. Paragraphs- 5 to 10 speaks of instances of such casting of votes by impersonation. In this regard, Rule- 44 has been enacted in the Grama Panchayat Rules, 1965 to raise objections, which stipulates as follows:- "44. (1) Any contesting candidates or his authorized polling agent may object to the identity of a voter on the only ground that he is not the person he claims to be as per entry in the electoral roll. For every objection a fee of Rs. 2 shall be deposited with the Presiding Officer. The Presiding Officer shall decide the objection summarily and his decision shall be final. If the objection is rejected the deposit shall be forfeited. If, on the other hand, the objection is allowed, the deposit shall be refunded to the person who deposited the same. (2) In case of forfeiture of deposit under Sub-rule (1), a receipt in Form No. 5 prescribed under the Orissa Grama Panchayat Rules, 1968 shall be issued to the person who has made the deposit." On consideration of this rule, this Court in the case of Bhagyadhar Khatei vs. Kubera Pradhan and others, 2008 (II) OLR 82 has held thus:- "Thus a provision is in built in the Election Rules to raise objection as to identity of a voter on the ground that he is not the person he claims to be as per the electoral roll. Such objection has to be made by the polling agents at the first instance. The modality for raising objection is stipulated in the Rules. The Rules also specify the consequences." In the aforesaid case, recount of vote was sought for on the ground that certain fictitious persons had cast votes impersonating some dead voters. There was no evidence to show that Rule- 44 of Orissa Grama Panchayat Rules had been complied with. Taking into consideration such non-compliance, this Court rejected the plea of recounting of votes. 19. So far as the present case is concerned, there is nothing on record to show that Rule- 44 had been resorted to or complied with by the election agents opposite party No. 2 at the time of counting by the Presiding Officer or recounting by the Election Officer. In absence of such evidence, the averments made in paragraphs- 5 to 11 of the election petition must be held to be vague plea without any supporting evidence. 20. In paragraph- 13 of the election petition, allegation has been made regarding improper acceptance and improper rejection of votes so far as symbols of the parties are concerned booth-wise. In Booth Nos. 1, 2, 3, 5, 6, 7 and 8 altogether 28 votes are alleged to have been improperly accepted in favour of the present petitioner. So far as Booth No. 1 is concerned, serial number of ballot paper and name of the election agent in respect of one such vote has been provided. So far as other booths are concerned, general allegations have been made to the effect that such and such numbers of votes have been improperly accepted in respect of the symbol of the returned candidate and such and such numbers of votes have been improperly rejected in respect of the symbol of the election petitioner. Serial number of ballot paper, agent's name, who raised objection, table number in which the votes were counted etc. which are material facts have not been pleaded. 21. After the election result was declared, recounting was held on the basis of the petition filed by the election petitioner. Serial number of ballot paper, agent's name, who raised objection, table number in which the votes were counted etc. which are material facts have not been pleaded. 21. After the election result was declared, recounting was held on the basis of the petition filed by the election petitioner. There is no pleading containing adequate material facts so far as improper acceptance or rejection of votes in the said recounting is concerned except general averment to that effect in paragraph- 13 which reads as follows:- "............and the prayer of the plaintiff for counting was allowed but the Election Officer has also illegally accepted and counted the rejected votes in favour of "Open Book" and many valid votes polled in the symbol "Fish" have been improperly rejected and in the process the plaintiff got one vote less than the symbol "Open Book"............" The opposite party No. 2 in the election petition has not mentioned as to how many invalid votes had been counted in favour of the returned candidate at the recounting. So also, the opposite party No. 2 has not alleged the nature of the illegality or irregularity said to have been committed by the Election Officer at the time of recounting. How and in what manner there was improper acceptance of invalid votes and improper rejection of valid votes at the recounting is also not explained by the opposite party No. 2. In short, the election petition is bereft of all details so far as the recounting is concerned. 22. It is the settled law that the pleadings as a whole is to be considered and requirement for ordering recounting of vote is adequate pleading in the election petition. In all the cited cases, emphasis has been given to the word "adequate" before the pleading to show that any vague plea is not to be taken into consideration and recounting cannot be ordered for asking. If the entire pleading of the election petition (opposite party No. 2) is taken into consideration, it is found that the pleading is deficient so far as adequate pleading of material or basic fact is concerned. 23. Learned court below, in the impugned order, has only given a passing remark about adequate pleading, but he has failed to take into consideration as to what made him to return such a finding and which pleading weighed with him in giving such a finding. 24. 23. Learned court below, in the impugned order, has only given a passing remark about adequate pleading, but he has failed to take into consideration as to what made him to return such a finding and which pleading weighed with him in giving such a finding. 24. Hon'ble Supreme Court, in the case of P.K.K. Shamsuddeen, AIR 1989 SC 640 supra has ruled that the right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot is sacrosanct in a democracy and hence unless the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high degree of probability existed for the recount of votes being ordered by the Election Tribunal in the interests of justice, a Tribunal or Court should not order the recount of votes. 25. Hon'ble Supreme Court has thus given emphasis to prima facie case of high degree of probability which must be distinguished from a prima facie case simplicitor. The Court or Tribunal, before ordering the recount of votes has to satisfy itself about the prima facie case of a high degree of probability and the requirement for indulgence by the Court or Tribunal is certainly more than finding a prima facie case simplicitor. Hon'ble Supreme Court, in the case of Chandrika Prasad Yadav, AIR 2004 SC 2036 supra, in paragraphs- 22 & 23 has held thus:- "22. In M. Chinnasamy v. K.C. Palanisamy and others, 2003 (10) Scale 103] this Court upon noticing a large number of decisions held that it is obligatory on the part of the Election Tribunal to arrive at a positive finding as to how a prima facie case has been made out for issuing a direction for recounting holding: "Apart from the clear legal position as laid down in several decisions, as noticed hereinbefore, there cannot be any doubt or dispute that only because a recounting has been directed, it would be held to be sacrosanct to the effect that although in a given case the Court may find such evidence to be at variance with the pleadings, the same must be taken into consideration. It is now well settled principle of law that evidence adduced beyond the pleadings would not be admissible nor any evidence can be permitted to be adduced which is at variance with the pleadings. The Court at a later stage of the trial as also the appellate Court having regard to the rule of pleadings would be entitled to reject the evidence wherefore there does not exist any pleading". 23. It was further held that for the said purpose the Tribunal must arrive at a finding that the errors are of such magnitude which would materially affect the result of the election. As regard standard of proof, this Court held: "The requirement of laying foundation in the pleadings must also be considered having regard to the fact that the onus to prove the allegations was on the election petitioner. The degree of proof for issuing a direction of recounting of votes must be of a very high standard and is required to be discharged. (See Mahender Pratap v. Krishan Pal and others, (2003) 1 SCC 390 ). (See also Mukand Ltd. v. Mukand Staff & Officers Association, 2004 (3) JT (SC) 474)." 26. Though the learned court below has given a finding regarding a prima facie case, he has not whispered even a word as to what are the materials, on which it found the prima facie case justifying recount of votes. Learned court below has given a passing finding to the effect that "...........so this Court is of the considered opinion that in order to decide the dispute so also to do the complete and equitable justice between the parties making such an order for inspection of ballot papers as claimed by the election petitioner is imperatively necessary as it is the proper stage and this is a fit case.............." 27. Hon'ble Supreme Court, in the case of Dr. Hon'ble Supreme Court, in the case of Dr. Jagjit Singh AIR 1966 SC 773 , has held that it may be that in some cases, the interest of justice would make it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election, but in considering the requirement of justice, care must be taken to see that election petitioners do not get a chance to make roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidate's election is void. 28. From the aforesaid ruling of the Hon'ble Supreme Court, it is clear that where it appears that prayer has been made to fish out evidence in support of the election petitioner, the Court or Tribunal has to be cautious and circumspect. In the present case, as discussed (supra) there is absence of adequate pleadings of material facts, no prima facie case of a high degree of probability exists, as no evidence beyond pleading can be taken into consideration and there being recounting of votes once, the election petitioner cannot be allowed to fish out evidence for himself from the ballot boxes. 29. In the result, therefore, the impugned order is set aside. 30. Learned Election Tribunal is directed to conclude the election proceeding expeditiously on the basis of the evidence and materials available on record. The writ application is accordingly allowed.