Orissa High Court
Rabinarayan Das vs State Of Odisha And Others on 11 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. 11.05.2023
04. 1. This order should be read in continuation of the order already
passed by this Court on 2nd May, 2023 which reads as under:
"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."
2. Pursuant to the above order, the Block Development Officer
(BDO), Kujang Panchayat Samiti has filed an affidavit dated 9th
May, 2023 enclosing a copy of the report of the Polling Officials in
Form-7 of Ward No.9 of the Hansura Gram Panchayat (GP) for the
post of Sarapanch. In para-3 of the affidavit, it is stated that the total
ballots received by the Presiding Officer for Booth No.9 was 180 of
which 132 ballots were used and 48 were unused. Apart from
giving certain other data, the result sheet has been enclosed and it is
stated that "the total number of votes casted in Ward No.9 is 132".
3. In the considered view of the Court, this kind of a factual report
in the form of an affidavit ought to have been called by the Election
Tribunal, i.e., the Civil Judge (Junior Division), Kujang in the
pending Election Petition No.4 of 2022 prior to passing the
interlocutory order dated 4th February, 2023. In other words,
without ascertain the factual position a complete recounting of all
the ballots cast was not warranted and was in fact contrary to the
legal position explained in Bhabhi v. Sheo Govind (1976) 1 SCC
687.
4. In the impugned order, the learned Single Judge has modified
such an order by directing the counting of only the votes polled at
Booth No.9 and of the 31 rejected ballots.
5. In view of the above affidavit of the BDO, the Court directs that:
(i) The interim order dated 4th February, 2023 as well as of the
Election Tribunal, i.e., the Civil Judge (Junior Division), Kujang as
well as the impugned order dated 17th February, 2023 of the learned
Single Judge in W.P.(C) No.3735 of 2023 to the extent they order
counting of the ballots polled in Booth/Ward No.9 shall stand set
aside.
(ii) The affidavit of the BDO dated 9th May, 2023 filed in the
present writ appeal along with its Annexures shall be treated as
forming part of the record of E.P. No.4 of 2022 pending in the
Court of the Civil Judge (Junior Division), Kujang. It will be open
both to Respondent No.5 herein as well as the Appellant herein to
apply to the Election Tribunal for permission to cross-examine the
BDO in relation to such affidavit.
(iii) With 4 witnesses of Respondent No.5 (the election petitioner)
having already been examined and cross-examined, the Court
directs that the entire exercise of examination of witnesses of both
parties should be concluded by the Election Tribunal by 30th June,
2023 and after conclusion of arguments, the final verdict in the
election petition should be delivered not later than 1st August, 2023.
(iv) As regards the 31 rejected ballots, it will be open to the
Election Tribunal to ascertain the factual position in this regard and
then pass appropriate orders as regards that issue after the
conclusion of the recording of the evidence of the witnesses.
6. It may be noted here that Mr. Pitambar Acharya, learned Senior
Counsel appearing for Respondent No.5, referred to the judgment
of this Court dated 5th May, 2023 in W.A. No.1330 of 2022 (Sarala
Mallik v. Tapaswini Mallik) to urge that the present writ appeal is
not maintainable in view of the judgment of the Full Bench of this
Court in Mahammed Saud v. Dr. (Maj) Shaikh Mahfooz 2008(II)
OLR (FB) 725 which has been affirmed by the Supreme Court in
Mahammed Saud v. Dr. (Maj) Shaikh Mahfooz (2010) 13 SCC
517. However, this objection was not raised by Mr. Acharya at the
earlier stages of the present writ appeal, particularly when a detailed
order was passed by this Court on 2nd May, 2023. Consequently, the
Court is not inclined to examine the said issue in the present writ
appeal, while clarifying that the law in this regard already stands
settled by the aforementioned decisions.
7. The writ appeal is disposed of with the above observations and
directions. A copy of this order be sent to the Election Tribunal, i.e.,
the Civil Judge (Junior Division), Kujang forthwith.
(Dr. S. Muralidhar)
Chief Justice
(G. Satapathy)
Judge
S. Behera
Signature Not Verified
Digitally Signed
Designation: Jr. Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 12-May-2023 20:49:15
