Orissa High Court
Rabinarayan Das vs State Of Odisha And Others on 2 May, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 299 of 2023
Rabinarayan Das .... Appellant
Mr. Prafulla Kumar Rath, Advocate
-versus-
State of Odisha and others .... Respondents
Mr. Debakanta Mohanty, A.G.A. for State
Mr. Pitambar Acharya, Senior Advocate for Respondent No.5
CORAM:
THE CHIEF JUSTICE
JUSTICE G. SATAPATHY
ORDER
Order No. 02.05.2023
03. 1. One of the issues that has arisen in the election petition filed by
Respondent No.5 questioning the election of the present Appellant
as Sarpanch of the Hansura Gram Panchayat (GP) which
Respondent No.5 lost by one vote, is that in Booth No.9, 133
ballots were cast but only 132 were counted. An averment to this
effect was made in para 10 of the election petition and was disputed
by the present Appellant in his written statement.
2. In para 10 of the election petition it was stated by Respondent
No.5 that the Polling Officer had given a report to the above effect.
However, it appears that the Polling Officer was himself not
examined as a witness.
3. The Election Tribunal, i.e., the Civil Judge (Junior Division),
Kujang has by the order dated 4th February, 2023 ordered a total
recount of all the votes polled. This has been modified by the
learned Single Judge by the impugned judgment dated 17th
February, 2023 by ordering that the recount will be only of the
votes polled at Booth No.9 and of the 31 rejected ballots.
4. It must be noted here that it was also the plea of Respondent
No.5 in the election petition that 5 votes in favour of Respondent
No.5 were wrongly rejected. However, in his cross-examination,
Respondent No.5 was unable to state the basis on which he made
the said averment. Nevertheless, by the impugned order of the
learned Single Judge, the 31 rejected ballots have also been asked
to be recounted.
5. It must also be noted that in his cross-examination before the
learned Civil Judge (Junior Division), Kujang, the present
Appellant stated "23. I have no objection if the counting of the said
result is done again through the court". Although Mr. Prafulla
Kumar Rath, learned counsel appearing for the Appellant, argues
that as per Form-8A appended to the Odisha Gram Panchayats
Election Rules, 1965 it is only the 'result' that was agreed to be
recounted, it is seen that Form-8A itself is titled 'Result of counting
of Votes'. Therefore, the above statement can only mean that he
was agreeable to the recounting of the votes.
6. The controversy, now therefore, has narrowed down to whether
the learned Single Judge was justified in directing the recounting of
the votes polled at Booth No.9 and the 31 rejected votes?
7. Under Section 37 of the Odisha Gram Panchayats Act, 1964 the
Civil Judge (Junior Division) has the powers inter alia of
summoning "any person whose evidence appears to him to be
material". That certainly would include an election official who
may not be a party to the election petition. In the present case, since
an averment has been made in the election petition regarding the
report of a Polling Officer, it would have lent assurance to the Civil
Judge (Junior Division) and later to the learned Single Judge if in
fact such report was brought on record.
8. In these circumstances, the Court considers it appropriate to call
for an affidavit from the Block Development Officer (BDO) who
was the Election Officer in respect of the election to the Office of
Sarpanch of the Hansura GP, requiring him to file an affidavit in
this Court not later than 10th May, 2023 enclosing copy of the report
of the Polling Officer, if any, in respect of the votes polled and
votes counted at Booth No.9. Advance copies of the said affidavit
be served on learned counsel for the parties.
9. List for further hearing on 11th May, 2023. The interim order
passed earlier shall continue till the next date.
(Dr. S. Muralidhar)
Chief Justice
(G. Satapathy)
Judge
S. Behera
SUMANT Digitally signed by
SUMANTA BEHERA
A BEHERA Date: 2023.05.03
15:05:41 +05'30'
