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2019 DIGILAW 471 (ORI)

Sumitra Sahoo v. Sujata Sahoo

2019-07-19

BISWANATH RATH

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ORDER : Biswanath Rath, J. 1. Heard Shri S.K. Nayak, learned counsel for the petitioner and Shri M.R. Samantaray, learned counsel for the opposite party. 2. This Writ Petition involves a challenge to the order dated 10.07.2018 passed by the learned Civil Judge (Jr. Divn.), Chandbali in Election Misc. Case No. 10/2017, whereby the Civil Judge (Jr. Divn), Chandbali allowed an application for recounting of votes. 3. Assailing the impugned order Shri S.K. Nayak, learned counsel for the petitioner contended that there is no finding basing on which a recounting order has been ordered. Shri Nayak, learned counsel urged that by the impugned order a party has been given scope to collect material to support his case for recounting. Shri Nayak, learned counsel also relying upon a decision of the Hon'ble Apex court in the case of Kattinokkula Murali Krishna v. Veeramalla Koteswara Rao as reported in 2010 (1) OLR (SC)-66, alleged that the trial court has not only failed in appreciating the fundamental aspect but has also failed in appreciating the legal aspect involving recounting aspect. 4. Learned counsel for the other side, while opposing the submission of learned counsel for the petitioner submitted that for the observations and findings made therein, there is no infirmity in the order requiring interference in the same. 5. Considering the rival contentions of the parties and looking to the order dated 10.07.2018, this Court finds, there is no investigation by the trial court before coming to such a finding that there is specific instances available and the issue can be determined by way of only recounting. It is, at this stage of the matter, taking into account the decision cited supra, this Court finds, the Hon'ble Apex court in paragraph No. 11 observed as follows: "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 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. 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." 6. For the direction made therein, this Court finds, the impugned order remains bad for being contrary to the law. In the process, this Court interfering in the impugned order dated 10.07.2018 passed by the learned Civil Judge (Jr. Divn.), Chandbali in Election Misc. Case No. 10/2017 sets aside the same. However, since a fresh adjudication on the aspect of recounting basing on the materials available on record, is necessary, this Court remits the matter back to the Civil Judge (Jr. Divn.), Chandbali for rehearing of the application for recounting of Votes afresh. 7. Both the parties are directed to appear before the trial court on 31st of July, 2019 alongwith certified copy of this order. The application for recounting shall be heard and adjudicated within a period of three weeks thereafter. 8. The Writ Petition stands disposed of with the above direction. 9. Issue urgent certified copy as per rules.