Constitution Of India) vs Sanjay Parida And Another .... Opposite ...
2024 Latest Caselaw 8534 Ori

Orissa High Court

Constitution Of India) vs Sanjay Parida And Another .... Opposite ... on 7 May, 2024

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Reason: Authentication               IN THE HIGH COURT OF ORISSA AT CUTTACK
Location: Orissa High Court, Cuttack
Date: 22-May-2024 21:41:36
                                       W.P.(C) No.24945 of 2023

                  (In the matter of an application under Articles 226 and 227 of the
                  Constitution of India)
                   Priyabrat Das @ Dash                    ....                Petitioner

                                                        -versus-


                   Sanjay Parida and another               ....         Opposite Parties
                  Advocate(s) appeared in this case:-

                            For Petitioner         : Mr. D. Tripathy, Advocate

                            For Opposite Parties   : Mr.P.K. Swain, Advocate
                                                     For O.P.No.1

                                                        Mr.S. Ghose, AGA


                               CORAM: JUSTICE B.P. ROUTRAY
                                               JUDGMENT

7th May 2024

B.P. Routray, J.

1. Heard Mr. D. Tripathy, learned counsel for the Petitioner and Mr. P.K. Swain, learned counsel for Opposite Party No.1 as well as Mr. S. Ghose, learned Additional Government Advocate for the State- Opposite Party No.2.

2. The Petitioner who is election Petitioner in Election Misc. Case No.2 of 2022 before the learned Civil Judge, Jajpur Road, has

Signed by: CHITTA RANJAN BISWAL Reason: Authentication challenged order dated 12th July 2023 rejecting his prayer for Location: Orissa High Court, Cuttack Date: 22-May-2024 21:41:36recounting of the rejected ballots.

3. The Petitioner and Opposite Party No.1 contested the election for the office of Sarpanch of Kankadapal Gram Panchayat. The Petitioner secured 1885 votes and Opposite Party No.1 secured 1887 votes. The Petitioner challenged the election of Opposite Party No.1 in Election Misc. Case No.2 of 2022. After the evidence was closed, a petition dated 23rd June 2022 was filed seeking a direction to the Election Officer for deposit of ballot papers in respect of ward no.2, 13, 14, 15 & 16.

4. Treating the petition dated 23rd June 2023 for recounting, the prayer of the Petitioner was rejected by order dated 12th July 2023, which is the subject of challenge in present writ petition.

5. Prayer of the petition dated 23rd June 2023 reads as follows:

"It is therefore most humbly prayed that your honour may kindly be pleased enough to direct the opp.party no.1 to deposit the sealed ballot papers of ward no.2 and 13 to 16 (Booth Nos.2 & 13 to 16) of Kankadapal G.P. along with the result sheet and report regarding rejection of votes in this Hon'ble Court for the ends of natural justice.

And for this the aforesaid petitioner as in duty bound will every pray."

6. A bare perusal of the aforesaid prayer does not show any prayer for recounting of the votes. However, learned Civil Judge has proceeded in the impugned order treating the prayer for recounting of

Signed by: CHITTA RANJAN BISWAL Reason: Authentication ballot papers. Accordingly, this Court without getting to the Location: Orissa High Court, Cuttack Date: 22-May-2024 21:41:36technicality in the prayer of the petitioner in his petition dated 23rd June, 2023 proceeds to deal with the impugned order treating the prayer for recounting of ballot papers.

7. Law relating to an order for inspection and recount of ballot papers had been well-settled in several decisions of the Hon'ble Apex Court. In Ram Sewak Yadav vs. Hussain Kamil Kidwai & Ors., AIR 1964 SC 1249, the circumstance for an order for inspection of ballot papers has been explained in the following terms.

"6. An order for inspection may not be granted as a matter of course: having regard to the insistence upon the secrecy of the ballot papers, the court would be justified in granting an order for inspection provided two conditions are fulfilled:

(i) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case; and

(ii) the Tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary, But an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the petitioner must be set out with precision supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interests of justice require, be granted. But a mere allegation that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes

Signed by: CHITTA RANJAN BISWAL Reason: Authentication will not be sufficient to support an order for Location: Orissa High Court, Cuttack inspection."

Date: 22-May-2024 21:41:36

8. In Mahanta Ram Prakash Dass vs. Ramesh Chandra and others, (1999) 9 SCC 420, the Supreme Court has explained as follows:-

"13. A candidate or his agent has an opportunity to ask for re-count at two stages: the first, before election result is finally declared, and the second, by way of election petition before the High Court. An application under Rule 63(2) of the Conduct of Elections Rules is to be given immediately after the votes secured by each of the candidates is announced under Rule 63(1), but such an application cannot be given after the candidate is declared elected under Rule 64. If an application is made under Rule 63(2) the Returning Officer shall decide the matter either by allowing the application in whole or in part or may reject it in its entirety, if it appears to him to be frivolous or unreasonable. The decision shall be in writing containing reasons therefor. The application for re- count should contain valid precise grounds on which the re-count is asked for. When the rules provide for enough opportunity to a candidate or his agent to watch the counting process before the result is declared and if an objection is raised as to the validity of any ballot paper and if such objection is rejected improperly, it would afford a basis for re-count in an election petition. The secrecy of the vote has to be maintained and demand for re-count should not ordinarily be granted unless the election petitioner makes out a prima facie case with regard to error in counting of such magnitude that the result of the election of the returned candidate may be affected. Smallness of the victory margin by itself may not be a sufficient ground for re-count. However, if a prima facie case

Signed by: CHITTA RANJAN BISWAL Reason: Authentication is made out as to error in counting, a small margin Location: Orissa High Court, Cuttack by which the returned candidate succeeded in the Date: 22-May-2024 21:41:36 election assumes significance, inviting re-count."

9. Further, the Supreme Court has propounded the guidelines in Sadhu Singh vs. Darshan Singh and another, (2006) 6 SCC 255, that reads as under:-

"7. Concededly the following factors are relevant for directing re-counting of votes:

(i) prima facie case must be established;

(ii) material facts must be pleaded stating irregularities in counting of votes;

(iii) a roving and fishing inquiry shall not be directed by way of an order for re-counting of votes;

(iv) an objection to the said effect should be raised; and

(v) secrecy of ballot papers should be maintained;

(See Gursewak Singh v. Avtar Singh, (2006) 4 SCC 542; M. Chinnasamy v. K.C. Palanisamy, (2004) 6 SCC 341; Chandrika Prasad Yadav v. State of Bihar, (2004) 6 SCC 331 and Tanaji Ramchandra Nimhan v. Swati Vinayak Nimhan, (2006) 2 SCC

300)"

10. In the case at hand, the Petitioner lost election to Opposite Party No.1 by two votes. Taking advantage of such low margin of votes, he is trying his best for recounting of the ballot papers. As it is seen from the record, according to the Election Officer, 88 votes in Ward No.2, 58 votes in Ward No.13, 31 votes in Ward No.14 and 15 votes in Ward No.15 and 23 votes in Ward No.16 were rejected. But the Petitioner did not have any detail about the same. Though he has stated that his

Signed by: CHITTA RANJAN BISWAL Reason: Authentication agent had objected at the time of counting of the ballots before the Location: Orissa High Court, Cuttack Date: 22-May-2024 21:41:36Election Officer, but no such document could be brought on record.

Rule 51(2) of the OGP Election Rules prescribes that, after the declaration under sub Rule 1 has been made, a candidate or, in his absence, his polling agent may apply in writing to the Election Officer to recount the votes either wholly or in part stating the grounds for such recounting. Not only the Petitioner has failed to produce his written objection for recounting of the votes in respect of such wards, but the polling agent, who has been examined as a witness on behalf of the Petitioner, also failed to say the details of such facts rejected and he also could not able to produce his written note regarding rejection of those ballot. The Petitioner has also failed in his evidence to speak the number of votes secured in his favour in respect of those wards or could he be able to say about the number of illegally rejected votes. The Petitioner does not disclose anything regarding specific illegality alleged to have been done in rejecting such votes or counted in favour of Opposite Party No.1. Without disclosing the reasons to prima facie satisfy the Court regarding improper rejection of votes against it or allowing the same in favour of Opposite Party No.1, the prayer for recounting has been made by the Petitioner by merely saying that rejection of those ballot papers for not having the signature of the Presiding Officer is illegal. It needs to be mentioned here that as per Rule 47(h) of OGP Election Rules, the ballot paper is bound to be rejected without the seal and signature of the Presiding Officer. Therefore, mere submission of the Petitioner that ballot papers have been illegally rejected would not entitle a case in his favour for recounting or inspection of those ballot papers. It is true that a low

Signed by: CHITTA RANJAN BISWAL Reason: Authentication difference or margin of votes with the elected candidate would not per Location: Orissa High Court, Cuttack Date: 22-May-2024 21:41:36se give any right in favour of the looser for recounting. Thus, unless a prima facie case is made out by the Petitioner in his favour warranting recounting of the ballot papers, the same cannot be allowed on the prayer of a party concerned. Not only the averments made in the election petition or in the petition dated 23rd June 2023, but also in his evidence, the Petitioner has failed to bring prima facie material fact to justify his allegations of illegal rejection of votes to aver a good ground in his favour that there is any mistake in counting. In such circumstances, the rejection of the prayer of the Petitioner by the learned Civil Judge is found justified.

11. In the result, the impugned order is confirmed and the writ petition is dismissed and all the interim order stands vacated.

(B.P. Routray) Judge

C.R. Biswal/AR-cum-Sr. Secretary