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2015 DIGILAW 423 (ORI)

Dillip Kumar Nayak v. Madan Mohan Dutta

2015-07-21

S.PANDA

body2015
ORDER Heard learned counsel for the petitioner and learned counsel appearing for opposite party No. 1. Petitioner in this application has challenged the order dated 2.7.2015 passed by learned District Judge, Balasore in Election Case No. 2 of 2012 allowing an application filed by opposite party No. 1 for recounting of the votes in respect of all the booths under Zone No. 39 of Balasore Zilla Parisad except both No. 11 of Nizampur Gram Panchayat, Booth No.3, 11, 13, & 15 of Haripur Gram Panchayat, Booth No. 7 & 14 of Kuruda Gram Panchayat, Booth No. 12 of Saraswatipur Gram Panchayat & Booth No. 7 of Chasakhand Gram Panchayat. The present petitioner and four others were contesting for the post of Member Zilla Parishad under Zone-39 Remuna Block. In the said election petitioner was elected Member Zilla Parishad. The opposite party No. 1 filed an application under Section 32 of the Odisha Zilla Parisad Act against the petitioner with a prayer that the Zone No. 39 under Remuna Block to be conducted through the process of Court with further prayer the election of petitioner as member of Zilla Parisada to be declared as void. In the said proceeding it was pleaded that the Presiding Officer illegally rejected the application of the opposite party No. 1 to recount the entire votes whereas the has allowed recounting of votes in respect of booth No. 11 of Nizampur Gram Panchayat, booth No. 3, 11, 13, 15 in Haripur G.P., booth No. 7 & 14 of Kuruda G.P., booth No. 12 of Saraswatipur G.P., booth No. 7 of Chasakhand G.P. It was not specifically pleaded how many ballots are and which are to be recounted though the details are available with the applicant. The present petitioner and four others were contesting for the post of Member Zilla Parishad under Zone-39 Remuna Block. In the said election petitioner was elected Member Zilla Parishad. The opposite party No. 1 initiated the election petition No. 2 of 2012. In the said proceeding in due course of trial evidence was laid and examined one Kartika Chandra Giri claiming that he is the agent of opposite party No. 1 and application for recounting was filed before the election Officer through him. The opposite party No. 1 initiated the election petition No. 2 of 2012. In the said proceeding in due course of trial evidence was laid and examined one Kartika Chandra Giri claiming that he is the agent of opposite party No. 1 and application for recounting was filed before the election Officer through him. However the said fact has not been pleaded in the election petition nor the document i.e. the application filed by him before the Election Officer for recounting bear any acknowledgement with regard to receipt of such application by the Election Officer. Admittedly the Election Officers were not examined as witness in the said proceeding. After closure of the evidence the opposite party No. 1 filed an application for recounting of the votes. An objection was field by the petitioner to the said application. The Court below allowed the said application and issued direction for recounting. The Apex Court in the case of Chanda Singh V. Ch. Shiv Ram Varma and others reported in AIR 1975 S.C. 403 held that if the counting of the ballots are interfered with by too frequent and flippant recounts by Courts a new threat to the certainty of the poll system is introduced through the judicial instrument. Moreover, the secrecy of the ballot which is sacrosanct becomes exposed to deleterious prying if recount of votes is made easy. The best surmise, if it be nothing more than surmise, cannot and should not induce the judge to break open ballot boxes. 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 ……. To tarnish the counting staff with bias is easy for any party who divorces means from ends. Ehen the challenger belongs to the party in power a heavy strain is thrown of the strength of the moral fibre of the election staff whose fearless integrity is a guarantee of purity of the whole process but whose fortunes, before and after elections, may be cast with a political Government whose key men may sometimes take disturbingly keen interest in the outcome of elections and election petitions. The Court should be reluctant to lend quick credence to the mud of partiality slung at counting officials by desperate and defeated candidates although what is more important is the survival of the very democratic institutions on which our way of life depends. Further this Court in the case of Ananda Chandra Ojha V. Ashok Sahoo reported in 2013(I) OLR 575 held that it is the solemn duty of the appellant to plead material facts. The case of illegally accepting or rejecting the ballots has to be pleaded giving the serial number of ballots and the source of information. Merely saying that the petitioner’s agent had told him was not enough. The name of the agent, who had furnished such information was to be disclosed in the election petition itself, not book on the basis of which such details had been furnished must be produced. In view of the above settled position of law this Court sets aside the impugned order regarding counting of the ballots in exercise the jurisdiction under Article 227 of the Constitution of India as there is error apparent on the face of the record and directs the Courts below to proceed with the election dispute in accordance with the law. With the above observation the writ petition is disposed of. Petition disposed of.