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2019 DIGILAW 299 (ORI)

Nilima Manjari Jena v. Pramod Pradhan

2019-04-09

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. 1. This writ petition involves a challenge to the judgment dated 26.2.2019 passed by the Additional District Judge, Nimapara in Election Appeal No. 03 of 2018 reversing the judgment dated 30.4.2018 passed by the Civil Judge (Junior Division)-cum-Election Tribunal, Konark in Election Petition No. 04/10 of 2017. 2. Short background involving the case is that the election petitioner opposite party No. 1 herein brought an election dispute seeking declaration by the Election Tribunal that the election of the opposite party No. 1 therein and petitioner herein for the post of Ward Member of Ward No. 25 of village Kaanarapur be illegal and void and thereby declaring the petitioner therein as duly elected Ward Member of Ward No. 25 and also to pass an order for recounting of ballot papers being improperly accepted in favour of the opposite party No. 1 therein, the petitioner herein. 3. Fact involving the election dispute remains that on bringing a notification dated 27.12.2016 for the post of Ward Members for Kakatpur Block, petitioner and opposite party No. 1 herein contested for the post of Ward Member of Ward No. 25 and the election involved therein was held on 21.2.2017. The present petitioner was allotted with the symbol "Scales" and similarly the opposite party No. 1 herein was allotted with the symbol "Bullock-cart". Result of the election was officially published on 22.2.2017. Considering that both the present petitioner as well as the opposite party No. 1 secured 143 votes each out of the total pooling of 287 and one vote has been rejected, it is alleged that in absence of the present petitioner and also without proper intimation and notice to him, the Election Officer has drawn the lot and declared opposite party No. 1 therein as elected. It is alleged that the drawing of the lot was without compliance of the provisions of law for which the result of the election has been materially affected. It is further alleged that the Election Officer has violated the norms of Rule 51(1) of the Orissa Grama Panchayat (Election) Rules, 1965 in drawing the lot. It is further alleged in the election petition that no person shall be eligible to register in more than one ward in the electoral roll of any Grama Panchayat. It is further alleged that the Election Officer has violated the norms of Rule 51(1) of the Orissa Grama Panchayat (Election) Rules, 1965 in drawing the lot. It is further alleged in the election petition that no person shall be eligible to register in more than one ward in the electoral roll of any Grama Panchayat. Referring to a person, namely, Manorama Jena, otherwise known in the locality as Rama Jena, wife of Chhabila Kumar Jena, it has been alleged that she has been illegally registered as a voter in Ward No. 13 as well as Ward No. 25 under Abadan Grama Panchayat of Kakatpur Block. Similarly, her husband Chhabila Kumar Jena being son of Bholi Jena also registered his name as a voter in both the Ward Nos. 13 and 25. Ward No. 13 of Abadan Grama Panchayat comes under village-Osalanga, House No. 4 and Sl. Nos. 21 and 22 of 2017. Electoral Roll of village-Osalanga published in the name of Manorama and Chhabila. Ward No. 25 of Abadan Grama Panchayat comes under village-Kaanarpur House No. 15 and SI. Nos. 142 and 145 of 2017 Electoral Roll of village-Kaanarpur published in the name of Rama and Chhabila respectively. Petitioner further contended that both the Electoral registered wife and husband illegally casted their votes for both Ward Nos. 13 and 25. It is further contended that even though there was written objection by the Agent of Ward No. 25 but the same was not taken into consideration. Accordingly, it is claimed that opposite party No. 1 got 141 votes and petitioner got 143 votes and therefore, petitioner therein was duly elected by a majority of lawful votes. The election petitioner also relied on a judgment of this Court in the case of Raisor Lakra v. Dayamani Bud, 2005 (11) CLR-412. 4. Upon receipt of summons, opposite party Nos. 1, 2 and 3 therein entered their appearance. Opposite party No. 1 therein being the elected candidate, the petitioner herein entering appearance filed show cause. Opposite party No. 1 herein while denying all the allegations raised by the election petitioner contended that before final publication of electoral roll, a draft electoral roll was published for verification. Manorama Jena and Rama Jena are altogether two different persons. So also Chhabila Kumar Jena has been registered as a voter in Ward No. 13 and Ward No. 23 involving completely two different persons. Manorama Jena and Rama Jena are altogether two different persons. So also Chhabila Kumar Jena has been registered as a voter in Ward No. 13 and Ward No. 23 involving completely two different persons. It is also contended by opposite party No. 1-the petitioner therein that while the Presiding Officer finding both the opposite party No. 1 and the present petitioner secured 143 votes each in ward No. 25, since there was law and order situation, the Presiding Officer on consent of the candidates and their authorized agents decided to declare the result on 23.2.2017 in the office of the Block Development Officer, Kakatpur Block Office in their presence and prior notice to the parties. On 23.2.2017, the parties and their authorized agents and one Jyoti Prakash Jena, who was contested for the post of Samiti Member and Bichitrananda Das, who was contested for the post of Sarpanch were also present on behalf of the petitioner. Basing on the consent of the petitioner and his Agent, the Election Officer drew lot and after drawing the lot, basing on the result, the election Officer declared opposite party No. 1 therein, the present petitioner as the leading candidate of Ward No. 25 and thus contended that there being no illegality or irregularity, there is no question of interfering in the result involving the election. Basing on the pleadings of the parties and filing the draft issues, the trial court framed the following issues: (1) Whether the petition is maintainable? (2) Whether the petition is barred by law of limitation? (3) Whether the election of the opposite party No. 1 to the post of "Ward Member" is void and illegal? (4) Whether the petitioner is the duly elected candidate for the post of "Ward Member"? (5) Whether there is any need to recount the ballot papers which were improperly accepted in favour of the Opposite Party No. 1? (6) What other reliefs the parties are entitled to? 5. The election petitioner i.e. the present opposite party No. 1 examined two witnesses on his behalf including himself as P.W. 1 and exhibited documents marked as Ext. 1 to Ext. 7 whereas petitioner examined two witnesses including herself as O.P.W. 2 and exhibited documents marked as Ext. "A" and Ext. "B". 5. The election petitioner i.e. the present opposite party No. 1 examined two witnesses on his behalf including himself as P.W. 1 and exhibited documents marked as Ext. 1 to Ext. 7 whereas petitioner examined two witnesses including herself as O.P.W. 2 and exhibited documents marked as Ext. "A" and Ext. "B". Basing on the submissions made by the respective parties, taking into evidence and materials available on record, the Election Tribunal while dealing with the Issue Nos. 3 and 4, observed that it is clear that despite having knowledge about drawing of lot, the petitioner therein could not reach the Block Office in time on 23.2.2017. So it can be inferred that absence of petitioner therein was his personal latches. Further taking into account the decision in the case of Raisor Lakra (supra) deciding a case involving drawing of lot without prior notice, the trial court observed that the decision had no application to the case at hand. On issue No. 5, the trial court observed that for the materials available on record, the allegation of the election petitioner found to be made in Issue Nos. 1, 2 and 6 since ancillary, the issues are also answered in negative thereby dismissing the election petition involved herein. On appeal by the election petitioner-the present opposite party No. 1, the appellate court on the basis of the judgment of this Court in the case of Raisor Lakra (supra) reversed the decision of the Election Tribunal and allowed the appeal thereby directing to draw the lot in presence of both the parties afresh. Hence the writ petition is filed at the instance of the elected candidate-opposite party No. 1 in the election dispute. 6. Sri Mishra, learned counsel appearing for the petitioner taking this Court to the pleadings of the parties so also to the evidence of the respective parties contended that it is not a case that there was no notice and the draw of lot has been undertaken without notice to the parties. Sri Mishra, learned counsel further taking this Court to a decision of the Hon'ble Apex Court involving Madhukar & Ors. v. Sangram and Ors., 2001 (4) SCC 756 contended that the appellate authority has lost the fundamental in deciding the appeal. Sri Mishra, learned counsel further taking this Court to a decision of the Hon'ble Apex Court involving Madhukar & Ors. v. Sangram and Ors., 2001 (4) SCC 756 contended that the appellate authority has lost the fundamental in deciding the appeal. Taking this Court to the discussion in paragraph-5 of the aforesaid decision, Sri Mishra, learned counsel submitted that in view of the settled position of law, the manner of disposal of the appeal by the appellate authority is to be disapproved and the appeal should be remitted back for fresh hearing and adjudication. 7. Going back to the allegation on the draw of lot without notice, as alleged by the election petitioner, the present opposite party No. 1, Sri Mishra, learned counsel taking this Court to the evidence involved herein submitted that for the clarity in the evidence of the election petitioner admitting himself that he was available on the date of draw of lot in the Presiding Officer's Office and for there being no stress establishing that there was no notice served in the matter of draw of lot, Sri Mishra, learned counsel further submitted that for sufficient material available disapproves the allegation of the election petitioner that the draw of lot has taken place in absence of the petitioner and as such contended that the trial court has correctly passed the judgment. On the other hand, It is alleged that the learned appellate court has failed to appreciate such aspect and reversed the judgment passed by the Election Tribunal on wrong applying of the decision cited by the appellant therein. 8. Sri A.K. Mohanty, learned counsel appearing for the contesting opposite party on the other hand referring to the direction part in the appeal judgment and the interim direction of this Court permitting continuance of draw of lot and the draw of lot having been taken place in the meantime submitted that for the draw of lot already taken place in the meantime, the matter has gone infructuous. Sri Mohanty, learned counsel therefore raising a technical objection as indicated hereinabove contended that the writ petition should be dismissed for the merit involving the appeal order and the allegation of Sri Mishra involving the writ petition leaving no foundation. Sri Mohanty, learned counsel therefore raising a technical objection as indicated hereinabove contended that the writ petition should be dismissed for the merit involving the appeal order and the allegation of Sri Mishra involving the writ petition leaving no foundation. Sri Mohanty, learned counsel referring to the provision at Section 31(5) as well as Rule 54 of the Orissa Grama Panchayat (Election) Rules and the materials available through the pleadings as well as evidence, particularly, referring to the evidence so recorded submitted that there is no prima facie satisfaction of the notice of the draw of lot on the particular day. Sri Mohanty, learned counsel claiming that there is lapse on the part of the Presiding Officer for his not following the legal procedure and the for the support of the decision vide judgment in the case of Raisor Lakra (supra) claimed for dismissal of the writ petition for having no merit. 9. Considering the rival contention of the parties, this Court finds the consideration involving the dispute remains as to whether draw of lot by the Presiding Officer has been undertaken following the provision contained in Rule 51(1) of the Orissa Grama Panchayat (Election) Rules, 1965. For better appreciation, this Court likes to take note of Section 51(1) of the Orissa Grama Panchayat (Election) Rules, 1965 which is reads as herein below: "51.[(1)] Immediately after the close of counting, the Presiding Officer shall prepare separate bundles of all the papers, reports and unused ballot papers in respect of polling for the office of Sarpanch and polling for the membership of the Grama Panchayat and forward two packets duly sealed through the Election Officer for the local area. It will be open for the candidate or their Polling Agents to affix their seals to the aforesaid packets. On the date fixed for declaring the result of elections to the office of Sarpanch, [or Ward Member, as the case may be], the Election Officer shall carefully total the election results received from different Presiding Officers [and count the ballot papers contained in the sealed packets received under Rule 92-G] in the presence of the candidates concerned, their polling agents as may be present and declare the results [of the Ward Member and the Sarpanch in Form No. 8 and Form No. 8-B] after recording in a separate report the total number of votes polled by each contesting candidates. The candidates securing the largest number of votes shall be declared duly elected as the Sarpanch. In the case of an equality of votes, the result shall be decided by drawing lots and the candidate whose name is drawn first shall be declared elected" Reading of the aforesaid provision, this Court finds the provision makes it clear that after the counting is over, a candidate securing the largest number of votes shall be declared duly elected. It again prescribed in the case of equality of votes, the result shall be decided by drawing lots and the candidates whose name is drawn first, shall be declared as elected. For the aforesaid legal provision, this Court observes that there is no prescription of notice in Section 51 of Orissa Grama Panchayat (Election) Rules, 1965. This Court further also observes that for the candidates participating in the election presumed to be aware of the legal provision contained therein for the purpose of draw of lot and it becomes the duty of the candidates facing drawing of lot to follow the Presiding Officer and not the vice versa. Even assuming that there is no role of the Presiding Officer prescribed in Section 51(1) of the Orissa Grama Panchayat (Election) Rules, 1965, this Court from the discussion of the Election Tribunal on issue Nos. 3 and 4, particularly, dealing with whether the election of opposite party No. 2 therein as Ward Member was void and illegal? and as to whether the petitioner is duly elected candidate?, this Court finds the trial court taking into consideration of the provision of section 51(1) of the Orissa Grama Panchayat (Election) Rules, 1965 taken note that in the evidence of P.W. 1-election petitioner in his cross examination has deposed that he was present from the beginning to the end and he had not appointed any agent for him and further when he reached the spot, counting has been completed. While deposing that the counting has been done in his presence, the election petitioner-P.W. 1 hereinabove and opposite party No. 1 therein got same number of votes. He had also specifically pleaded that the election petitioner had no objection in the re-counting the votes. The election petitioner also further submitted that he had noticed that the lot would also be drawn by the Presiding Officer at Block Office on 23.2.2017. He had also specifically pleaded that the election petitioner had no objection in the re-counting the votes. The election petitioner also further submitted that he had noticed that the lot would also be drawn by the Presiding Officer at Block Office on 23.2.2017. Again the P.W. 1 also deposed that he had also been to the Block Office on 23.2.2017 but at the same time deposes that when he had also reached the Block Office, the result in favour of the petitioner herein was declared which he did not accept and thus filed written objection to consider again. It is herein, taking account to the evidence of P.W. 1 reading together with the provision of Section 51(1) of the Orissa Grama Panchayat (Election) Rules, 1965, this Court even though finds no prescription for issuing notice, but the evidence clearly discloses that the Election Officer had at least the intimation to the parties regarding drawing of lot, this Court finds there is no violation of provision of section 51(1) of the Rule involving the case at hand. Further, from the evidence of election petitioner specifically indicating that he was available in the Block Office during the draw of lot, it appears either he has chosen to withdraw himself from the lot or deliberately press up the evidence to suit his case. 10. Now, coming to consider the decision of this Court reported in the case of Raisor Lakra (supra), this Court finds the decision therein was passed involving the fact and situation not to similar to the case at hand. Otherwise also there is no ratio decided in the case involved and this Court keeping in view that both the parties, the election petitioner as well as the opposite party No. 1 therein having admitted that both of them had the knowledge of drawing of lot and further finding that both the parties were also present in the Office concerned on the date of the draw of lot taking place, this Court observes, there is full compliance of the provision at Section 51(1) of the Orissa Grama Panchayat (Election) Rules, 1965 and the decision indicated hereinabove may not be strictly complied to the case at hand. Further, for the clear evidence of both the parties that they were informed by the Election Officer that draw of lot will be taking place, this Court finds, there is full compliance of section 51(1) of the Orissa Grama Panchayat (Election) Rules, 1965. Further, there is also clear evidence that when the result pursuant to draw of lot was declared, the election petitioner was present in the Block Office. Thus no inference can be drawn that the election petitioner had no information of draw of lot. 11. In view of the above, this Court finds there is no proper consideration of the issue involved by the lower appellate court. For the decision hereinabove, this Court finds there is no requirement to go into the issue as to whether there has been appropriate disposal of the appeal based on the Supreme Court judgment relied on during hearing. Resultantly, this Court exercising the power under Article 227 of the Constitution of India, setting aside the judgment dated 26.02.2019 passed by the Additional District Judge, Nimapara in the Election Appeal No. 03 of 2018 confirms the judgment dated 30.4.2018 passed by the Election Tribunal involving Election Petition No. 04/10 of 2017. It is at this stage, coming to the interim direction of this Court for proceeding with the draw of lot on the basis of order dated 19.03.2019 but however restricting the authority from declaring the result of the same till next date, this Court for the setting aside of the judgment of the appellate court and for the upholding of the judgment of the Election Tribunal, finds there is no necessity of declaring the result of the draw of lot pursuant to interim direction of this Court. 12. In the result, the writ petition succeeds. However, there is no order as to cost.