Radharani Behera vs Sitarani Senapati & Another .... ...
2025 Latest Caselaw 7301 Ori

Orissa High Court

Radharani Behera vs Sitarani Senapati & Another .... ... on 21 April, 2025

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

AFR          IN THE HIGH COURT OF ORISSA AT CUTTACK

                      W.P.(C) No.5652 of 2024

        Radharani Behera                   ....           Petitioner
                                Mr. Goutam Misra, Senior Advocate


                                  -Versus-

        Sitarani Senapati & Another       .... Opposite Parties
                                           Mr. C.M. Singh, ASC
                  Mr. S.K. Mishra, Senior Advocate for O.P. No.1

                CORAM:
                JUSTICE R.K. PATTANAIK
                 DATE OF JUDGMENT:21.04.2025

      1.

Instant writ petition is filed by the petitioner assailing the correctness, legality and judicial propriety of the impugned judgment dated 4th March, 2024 passed in connection with Election Appeal (FAO) No.91 of 2023 vide Annexure-6 by learned District Judge, Balasore overruling the decision dated 26th September, 2023 in Election Misc. Case No. 01 of 2022 as at Annexure-4 on the grounds inter alia that the same has been rendered on an erroneous interpretation of the provisions of Orissa Grama Panchayats Election Rules, 1965 (hereinafter referred to as 'the Rules') and furthermore, in absence of any material to declare opposite party No.1 as the elected candidate to the post of Sarpanch of Grama Panchayat in question, hence, therefore, it is liable to be interfered with and set aside,

thereby, upholding the findings and conclusion reached at by learned Civil Judge, Senior Division, Jaleswar.

2. Bereft of unnecessary details, the facts in brief are that pursuant to the notification dated 11th January, 2022 of the State Election Commissioner, election to the post of Sarpanch of the concerned Gram Panchayat was declared, to which, the petitioner and opposite party No.1 filed their nomination papers and it was held on 16th February, 2022 and the result was announced on 28th February, 2022 but in the meanwhile, an application for recounting by the petitioner was moved before opposite party No.2 and it was allowed and with the exercise concluded, the petitioner and opposite party No.1 found to have secured 1851 and 1949 votes respectively, as a result of which, the former was declared as the returned candidate, whereafter, the latter challenged the election result by filing Election Misc. Case No.01 of 2022 before the Court of learned Junior Civil Judge, Jaleswar and it led to the passing of the judgment dated 26th September, 2023 as at Annexure-4. Being aggrieved by the aforesaid decision, opposite party No.1 preferred an appeal before learned District Judge, Balasore in Election Appeal (FAO) No.91 of 2023 and it was disposed of vide Annexure-6, whereby, the petitioner was unseated and in turn, she was declared elected, a decision, which is currently under challenge.

3. The pleading on record is that opposite party No.1 had herself requested for recounting of votes before the Court,

nonetheless, it was allowed by opposite party No.2 on the request of the petitioner after the election and when the ultimate aim and objective of every trial is to find out and ascertain the truth and when such recount of votes revealed it, the petitioner could not have been unseated and that too, on the basis of wrong interpretation of the Rules. The further contention is that the impugned decision as per Annexure-6 reversing the judgment of the Trial Court suffers from error apparent on the face of record, as the petitioner through her polling agent had submitted an application for recount before opposite party No.2, which is a part of the Court's record but learned District Judge, Balasore failed to appreciate the same and also the margin of the votes and hence, the election result could not have been overturned morefully when the endeavor of a Court should always be to reveal the truth as technicalities should not stand on the way in view of the dictum of the Apex Court in Maria Margarida Sequeira Fernandes & others Vrs. Erasmo Jack De Sequeira (2012) 5 SCC 370. The further pleading on record is that the learned Court below failed to take cognizance of yet another decision of the Apex Court in Santosh Hazari Vrs. Purushottam Tiwari (2001) 3 SCC 179, wherein, it has been categorically held that while reversing a judgment of a Trial Court, the First Appellate Court should necessarily deal with and delve into the factual aspects of the subject matter in dispute.

4. Opposite party No.1 filed counter affidavit and denied all the averments and contentions advanced by the petitioner in the

writ petition and affidavits and pleaded that the same are misconceived both in law and on facts and hence, are liable to be dismissed, especially when, the petitioner has not approached this Court with clean hands and suppressed the material facts connected to the case. The further pleading is that no application for recounting was filed in accordance with Rule 51 of the Rules after declaration of the result as per sub- section(1) thereof in Form No. 8-B and the decision of opposite party No.2 for recount of the votes is, hence, illegal and untenable in law. The contention is that due to such unlawful recounting of votes allowed by opposite party No.2, which is in derogation of Rule 51, declaration of the petitioner as the winning candidate to the post of Sarpanch of the Grama Panchayat is invalid, the same having materially affected the result of the election.

5. A rejoinder affidavit is filed to the counter of opposite party No.1 and the facts earlier pleaded have been reiterated by the petitioner claiming that the impugned decision of the learned Court below has resulted in gross miscarriage of justice as thereby she has been unseated, despite her having been democratically elected as the Sarpanch and was duly declared so at the end of election.

6. No reply affidavit is filed by opposite party No.2.

7. Heard Mr. Goutam Misra, learned Senior Advocate for the petitioner, Mr. Singh, learned ASC for the State and Mr. S.K. Mishra, learned Senior Advocate for opposite party No.1.

8. Mr. Misra, learned Senior Advocate for the petitioner cited the decisions of the Apex Court in T.A. Ahammed Kabeer Vrs. A.A. Azeez and others (2003) 5 SCC 650 and Maria Margarida Sequeira Fernandes (supra) to contend that the impugned judgment as per Annexure-6 cannot be sustained in law. The contention of Mr. Misra, learned Senior Advocate is that as per the settled law in T.A. Ahammed Kabeer (supra), once jurisdiction to order recount found to have been rightly exercised, the Court cannot refuse to give effect to its result merely because the same is at variance with the pleadings. The further contention is that recount has been allowed by opposite party No.2 after the election was over and hence, on any such ground of erroneous procedure followed, the result of such recounting cannot be ignored. Referring to the decision in Maria Margarida Sequeira Fernandes (supra), Mr. Misra, learned Senior Advocate would submit that the Court's attempt is to unearth the truth and in the case at hand, as the truth stood revealed due to recounting, the decision of the Trial Court could not have been set at naught in appeal.

9. On the other hand, Mr. Mishra, learned Senior Advocate for opposite party No.1 would submit that the learned Court below did not commit any error or illegality and as such, the impugned decision is perfectly justified for the reason that no application for recount of votes was made as per the Rules and furthermore, it was permitted by opposite party No.2 and was per se illegal, since, it was prior to the declaration of election result. Due to such flagrant violation of the Rules in place, the

contention of Mr. Mishra, learned Senior Advocate is that the decision of the Court of first instance was rightly set aside by learned Court below. The further contention is that even though any such application was moved by opposite party No.1 for a recount of votes before the Trial Court, it cannot justify the decision upon such recounting, which has been allowed without following the procedure contemplated under law. The argument is that if a law allows a particular thing to be done in a way, it shall have to be accomplished in that way only and not otherwise and since, opposite party No.2 having exercised the jurisdiction not in accordance with the Rules, the petitioner cannot be allowed to take advantage of the result declared and learned Court below, rightly, therefore, overturned the decision and correctly declared opposite party No.1 as the elected candidate to the post of Sarpanch. In reply and response to the plea of waiver or tacit approval to the recounting by and at the instance of opposite party No.1, it is contended that such an argument is untenable in view of the observation of the Court in P.K.K. Shamsudeen Vrs. K.A.M. Mappillai Mohindeen and others AIR 1989 SC 640. It is, in fact, contended that the recounting has been ordered contrary to the statutory mandate and in particular, Rule 51 of the Rules and therefore, it cannot be given effect to and the Apex Court in the aforesaid decision held that even when counting has been ordered, the result of the same cannot influence the ultimate outcome of the election as long as the very order for such recount is illegal. With the above contentions, the decision of learned District Judge,

Balasore under Annexure-6 is sought to be justified by Mr. Mishra, learned Senior Advocate for opposite party No.1.The Court recorded the submission of Mr. Singh, learned ASC for the State.

10. In P.K.K. Shamsudeen (supra), it is held and observed that an order of recount of votes must stand or fall on the nature of the averments made and the evidence adduced and not from the result emanating from such recount. For better appreciation and proper understanding with regard to law on recounting of votes, it would be apposite to make a mention of the relevant extract of the above decision and hence, the same is reproduced herein below:

"13. Thus, the settled position of law is that the justification for an order for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the justification for an order of recount of votes should be provided by the material placed by an election petitioner on the threshold before an order for recount of votes is actually made. The reason for this salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is prima facie genuine need for it. The right of a defeated candidate to assail the validity of an election result and seek recounting of votes has to be subject to the basic principle that the secrecy of the ballot, the affected candidate is able to allege and substantiate in acceptable measure by means of evidence that a prima facie case of a high

degree of probability existed for the re-count of votes being ordered by the Election Tribunal and in the interest of justice, a Tribunal or Court should not order the recount of votes."

11. In the above decision, the petitioner therein neither made any such averments in the election petition filed under the Tamil Nadu Panchayats Act, 1958 nor adduced evidence of any such nature as could have made the Tribunal reach at a prima facie satisfaction that there was adequate justification for the secrecy of ballots being breached and the factors, such as, the elected candidate had accepted the correctness of the recount and that, he had conceded his defeat and wanted a re- election to be held cannot constitute justifying material in law for the initial order of recount of votes. Such is the view of the Apex Court with a conclusion that the order of recount of votes cannot validate an election outcome, if recounting was held but without any basis or justification. In the aforesaid case, the Tribunal's order of recount of votes was allowed in absence of any specific averments and production of evidence and hence, under such circumstances, the Apex Court had the occasion to hold that the exercise of jurisdiction and the order of recount cannot be justified, even though, the elected candidate accepted the correctness of the same and did not challenge it.

12. In the case at hand, recount of votes was even applied for by opposite party No.1 before the Trial Court but the same was disallowed. It is brought to the notice of the Court that such recounting was requested on occasions more than once but

opposite party No.1 was unsuccessful and it was never challenged thereafter and according to Mr. Misra, learned Senior Advocate for the petitioner, it would amount to a waiver. The recount of votes was allowed by opposite party No.2 rather and such an exercise actually reversed the outcome as opposite party No.1 polled less numbers of votes than the petitioner. The challenge to the decision on recount of votes is based on the following grounds, such as, for the said purpose, no application was made by the petitioner as per and in accordance with Rule 51 of the Rules and secondly, the request for the same was received before the election result was declared.

13. Mr. Mishra, learned Senior Advocate for opposite party No.1 refers to the record and decision of the learned Court below with regard to the very admission of the petitioner for having requested for recounting before the result was announced. The contention is that when the Rules have not been followed and there has been illegality committed by opposite party No.2 on recount of votes, the result of such recounting cannot be allowed to prevail upon and influence the result of such election.

14. In T.A. Ahammed Kabeer (supra), the law on recount of votes has been discussed and reaffirmed the decision that a Court would permit recounting only upon a clear case having been made out. It is profitable to Court the law discussed by the Apex Court on the aforesaid point and it is as hereunder:

"28. It is true that a recount is not to be ordered merely for the asking or because the court is inclined to hold a recount. In order to protect the secrecy of ballots, the court would permit a recount only upon a clear case in that regard having been made out. To permit or not to permit a recount is a question involving jurisdiction of the court. Once a recount has been allowed, the court cannot shut its eyes on the result of recount on the ground that the result of recount as found is at variance with the pleadings. Once the court has permitted recount within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the recount, which has to be given effect to.

29. So also, once the court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate under Section 100 (1)(d)(iii), as also as to the result of the election of any other candidate by reference to Section 97 of the Act and enters into scrutiny of the votes polled, followed by recount, consistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out the true result of recount though the actual finding as to validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of recount have relevance for the purpose of determining the question of jurisdiction to permit or not to permit recount. Once, the jurisdiction to order recount is found to have

been rightly exercised, thereafter, it is the truth as revealed by the result of recounting that has to be given effect to."

15. The ratio decided in the above case is that if upon exercise of jurisdiction with a satisfaction that the question of improper reception, refusal or rejection of any votes, recounting has taken place and a Court enters into the scrutiny of votes polled following recount, it cannot thereafter refuse to give effect to the result thereof, though, the actual finding as to the validity or otherwise may be at variance with the pleadings on record. The decision (supra) is in a way not applicable for the reason that such is not the case herein that the recounting has been ordered by the Court of first instance and subsequently, the outcome of such recount is found to be inconsistent with the pleading of the petitioner. An analogy is sought to be drawn by Mr. Misra, learned Senior Advocate for the petitioner on the premise that the result after recounting, since revealed the truth, should not be disturbed. The challenge is, rather, to the process followed by opposite party No.2 in allowing the recount of votes without proper application filed. In the aforesaid decision, the claim was found factually different than on pleading and it was revealed at the end upon recounting of votes and under such circumstances, the Apex Court held that the result with such findings on recount cannot be ignored even though the original claim was not in consonance with the pleading on record.

16. The other decision referred to hereinbefore in Maria Margarida Sequeira Fernandes (supra) was in the context of a gratuitous possession being the basis for seeking injunction and therein, the Apex Court held and observed that truth is a guiding star in the judicial process and such was the observation as against the background of facts that the appellant therein claimed to be not in possession of her own property for more than two decades despite her having a valid title over the same. However, with due respect, the Court is of the view that the above case law has no relevance in the present set of facts. If the contention of Mr. Misra, learned Senior Advocate for the petitioner would be accepted with reference to the decision (supra), it would mean and suggest that recounting by a Court even in absence of any evidence of compulsive nature and a prima facie case made out for recounting, the decision towards the same would have to be validated upon result of it being received. If a foundation is laid and thereafter, recount of votes is permitted and subsequent there to, the result is found to be different than the original claim of the petitioner, it is not to affect such result. In other words, the result of recounting shall have to be accepted irrespective of the pleadings on record found to be at variance, which is what has been held by the Apex Court in T.A. Ahammed Kabeer (supra).

17. Learned Court below overruled the decision in favour of the petitioner predominantly referring to Rule 51 of the Rules and her admission in the show cause to the effect that the

request for recount of votes was made prior to the declaration of result. Upon a reading of the evidence led by the respective parties, it is made to reveal that upon dissatisfaction with regard to the counting of votes in respect of Ward Nos.9 & 10, such an application was moved by the petitioner's husband, he being her polling agent. In the show cause of the petitioner, it is pleaded that after counting of total votes polled and before declaration of result, request was made to opposite party No.2 for recounting and the latter being satisfied with the complaint, exercised the discretion and allowed it. Such claim of the petitioner heavily weighed in the mind of the learned Court below to reach at a conclusion that recounting of votes was demanded at a time, when the result was not declared. But, from the very reading of the evidence of the petitioner examined as OPW.2, it would appear that after the counting was over and it was known to both the sides with respect to the total votes polled that she requested for recounting. The dispute is over the fact that the result had not been declared by then, when recounting was entertained and ordered. From the evidence of record, it would further reveal that there was declaration of election result revealing the total numbers of votes polled by each of the candidates, as per which, the petitioner secured 1850 of votes and opposite party No.1 polled 1854. The declaration is claimed to be as per Form No.8-B. That apart, opposite party No.2 filed a show cause before the learned Civil Judge, Jaleswer and claimed that the result had been published and then, the recounting of votes was held. A

copy of the result sheet is marked as Ext.1 from the side of opposite party No.1 and the same revealed more number of votes polled by her than the petitioner and the election result was declared on 28th February, 2022. Even though, such is the show cause to the effect that the request for recount of votes was made before the declaration of result but as per the petitioner examined as OPW.2, the result sheet i.e. Ext.1 proved it otherwise. The contention of opposite party No.2 with a show cause reply is that the recount of votes was held after the result was announced and declared in Form No.8-B. If any such request was made to opposite party No.2 for recounting before the result was declared, the total numbers of votes polled by the candidates would not have been made known to the candidates in the fray.

18. Without any doubt, Rule 51 of the Rules insists upon that recount of votes is to be entertained after the declaration of the election result. It is also statutorily mandated that an application for recounting shall have to be made to the Election Officer after such result was announced. In the case of the petitioner, it is pleaded that there was such a request in writing received by opposite party No.2 in the evening hours of the election day and the same is proved with an endorsement thereon. A copy of the application for recounting of votes is marked as Ext. B by the petitioner and her signature over the same as Ext. A. If such is the evidence on record, it would not be proper to entertain any serious doubt regarding such request by the petitioner for recounting to have been made in writing,

as is claimed by opposite party No.1. Upon considering the evidence as a whole, it has to be held that for recount of votes, an application was received by opposite party No.2 and it was not before the declaration of result but sometime, thereafter. Too much importance and reliance has been given to the show cause of the petitioner and for such admission that recounting of votes was applied before the result was declared. Considering the materials on record, one could reach at a conclusion that there was declaration of the election outcome with the result sheet released and thereafter, the recount of votes was entertained. In absence of any specific evidence to the contrary that by the time, the result was declared on 28th February, 2022, opposite party No.2 had already received the request for recount, rather, on the basis of the materials on record, it has to be concluded that the same was only after its announcement and not at any time before.

19. Though, the Court is not inclined to accept the grounds advanced from the side of the petitioner, it is still in favour of overruling the conclusion reached at by learned court below for the reasons discussed herein before besides the following, hence, needs further elaboration. One of the grounds already discussed is that the recounting of votes at the instance of opposite party No.1 held and carried out by opposite party No.2 was without any application in writing as per Rule 51 of the Rules but on a careful reading of the evidence received from both the sides, it is reiterated that an application was received from the petitioner, the fact which was admitted by

opposite party No.2. In fact, in the counter filed by opposite party No.2 before the court of learned Civil Judge, Jaleswar, it is specifically stated that such an application was received by him for recounting of votes only in respect of Ward Nos.9 & 10 and so was held. Even a copy of the application was marked as Ext. B from the side of the petitioner shown to have been received from the petitioner. It has been a denial from opposite party No.1 that recounting of votes in respect of the concerned Wards was entertained by opposite party No.2 without an application in writing as mandated under law. On an overall reading of the entire evidence including the stand of opposite party No.2, it is evident that recounting of votes for the Wards in question at the behest of the petitioner was held only after receiving an application in writing from her husband. So, therefore, such a contention from the side of opposite party No.1 is totally misplaced. The further ground of challenge are to the following, namely, no justifiable ground existed for opposite party No.2 to allow recounting of votes besides the one that it was held when the result of the election was yet to be declared. The above grounds are indeed with reference to Rule 51 of the Rules. It is claimed by opposite party No.1 that opposite party No.2 was to assign reasons in writing as per Rule 51(4) of the Rules before allowing the votes to be recounted in respect of Ward Nos. 9 & 10. Even, though, such is the ground raised by opposite party No.1, no specific evidence was led in support thereof that opposite party No.2 did not have any reason to direct recounting of votes. Whereas,

opposite party No.2 pleaded in the counter that upon receiving the application from the petitioner, recounting of votes was allowed apparently on a subjective satisfaction being reached at, in that regard. It was for opposite party No.1 to confront opposite party No.2 demanding the latter to submit such evidence in support of the plea that there were just reasons to allow further counting of votes. It was never confronted to opposite party No.2 at the time when the evidence was received in the election proceeding. An attempt should have been made by opposite party No.1 with such confrontation made to opposite party No.2 to convince the Court that there was no such reasons ever existed for the votes to be recounted. So, therefore, in absence of any such material on record, the inevitable conclusion would be to the effect that opposite party No.2 was fully satisfied with the request for recounting of votes, he having received the application therefor. Hence, with the evidence on record received from both the sides, without any specific material regarding such a claim to have been proved prima facie, the only view one could subscribe that opposite party No.2 rather had the reasons to allow counting of votes in respect of the Wards on a request received from the petitioner.

20. The second limb of argument is that the recounting of votes was received and allowed at a stage, it was premature and the same was before declaration of the result of the election and as earlier discussed, learned court below considered the same to be a plea sufficient to disallow the further counting of votes

with a conclusion that opposite party No.2 committed an illegality as a result. As far as, Rule 51 of the Rules is concerned, as per sub-rule (2) thereof, a candidate or in his absence, the polling agent may apply in writing to the Election Officer to recount the votes either wholly or in part stating the grounds for the same but it shall be after declaration of the result under sub-rule (1) as per Form Nos.8 and 8-B. Such is the procedure, which is clearly stipulated in Rule 51 of the Rules, which means recounting of votes requested by one of the parties to the election to the post of Sarpanch shall have to be entertained with the publication of result sheet as per Form No.8-B. In the case, at hand, the claim is that before the result was declared, the application for recounting of votes was received but the same was vehemently denied by the petitioner and opposite party No.2. As earlier stated, learned court below overruled the decision of learned Civil Judge, Jaleswar only upon the ground that opposite party No.2 allowed recounting of votes when the election process was not over with the declaration of its result as statutorily required in terms of Rule 51(2) of the Rules.

21. Law is well settled that a particular procedure shall have to be followed in a way, the same is prescribed. The Apex Court in Independent Sugar Corporation Limited Vrs. Girish Sriram Juneja and others in Civil Appeal No.6071 of 2023 disposed of on 29th January, 2025 discussed in detail with a earlier case laws on the above principle referring to the decision in A.R. Antulay Vrs. Ramdas Sriniwas Nayak and

another AIR 1984 SC 718 and held that one should be mindful of the legal doctrine that where a statute requires to do a certain thing in a certain manner, it must be done in that particular manner or not done at all. One more decision in Sharif-ud-Din Vrs. Abdul Gani Lone AIR 1980 SC 303 referred to therein, it is held that in order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question has to subserve and its design and the context in which it is enacted; if the object of a law is to be defeated by non-compliance with it, the same has to be regarded as mandatory; whenever, a statute prescribes a thing to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.

22. The contention of Mr. Mishra, learned Senior Advocate for opposite party No.1 is that opposite party No.2 failed to advert to the above doctrine since the recounting of votes was allowed before the election result was declared. The ground of challenge is that when the petitioner was not aware of the result of the election, a plea for recounting of votes could not have been held to be justified but still, it was allowed by opposite party No.2. In the earlier part of the judgment, the Court held that the votes have been recounted after the result was declared in Form 8-B. Such a conclusion was reached by the Court after taking judicial notice of the evidence on record in its entirety.

As stated before, opposite party No.2 in the counter filed before the Court clearly and categorically pleaded that the result was declared in respect of the GP with opposite party No.1 having secured more number of votes than the petitioner, whereafter, the application for further counting was received and the same was entertained. If the evidence of opposite party No.1 as PW.1 is gone through, it would again reveal that as per the result sheet, she secured 1854 votes as against 1850 polled in favour of the petitioner. In fact, the evidence is to the effect that opposite party No.2 declared opposite party No.1 as the Sarpanch of the GP but at the same time, it is deposed that before declaration of the result, without any proper application, the recounting of votes/ballots was allowed. On the one hand, it is claimed that the result was declared with such evidence received from opposite party No.1 as PW. 1 on the other hand, the claim is that the result was not yet declared, by the time, when recounting was allowed and that too, without any application filed and received from the petitioner. The earlier discussion reveals that the petitioner through her husband, namely, polling agent had requested opposite party No.2 with an application filed seeking recounting of votes. If such an application had been received by opposite party No.2 and as according to opposite party No.1 in her affidavit evidence that the same was after the result was announced and she was declared the Sarpanch of the GP, the conclusion would be that the result was known to both the sides and was announced with the result sheet in Form No.8-B being published. Interestingly,

a copy of the result sheet is marked as Ext.1 by opposite party No.1. Rather, it is made to suggest from the evidence received from the side of opposite party No.1 that there was declaration of the result as per Ext.1 and thereafter, the recounting of votes was held. The evidence of opposite party No.1 further reveals that she had even requested for recounting of votes ballot papers. In so far as, Ward Nos.9 & 10 are concerned, on a perusal of Exts.5, 6 and 7, it would be revealed that on account of such votes being recounted, opposite party No.1 polled less number of votes, than earlier secured by her. As concluded before, learned court below was influenced by the show cause of the petitioner, wherein, it was pleaded that after counting of total votes hold but before declaration of the result, since, was dissatisfied with the process of votes being polled in favour of the parties, had requested opposite party No.2 for recounting and after the latter was satisfied, the said exercise was carried out. As, it is already mentioned earlier, opposite party No.2 out rightly declined any such receiving application by him before the announcement of the result of the election. According to the Court, the entire evidence is to be examined with reference to the pleadings on record. From the evidence of opposite party No.1, as discussed before, the total number of votes polled by her and the petitioner was known to them with the result sheet issued as per Form No.8-B. In fact, there is deficiency in evidence to accept any such plea of opposite party No.1 that before the result was declared opposite party No.2 had already received the application. In view of the denial of opposite party

No.2 in categorical terms and evidence of opposite party No.1 to the effect that the result was declared and she was announced as the Sarpanch of the GP, it is difficult to accept such a plea. Rather, the evidence is suggestive of the fact that a request in writing was received from the petitioner and the recounting was held after the result of the election was published. It could be that the petitioner may have requested for further counting after counting of ballot papers with informal declaration of result and before the result sheet was published. But then, it would be an assumption to claim that the request for recounting of votes was not ripe and hence, was premature. But, considering the totality of the evidence on record, it shall have to be concluded that by the time of recounting of ballot papers in respect of Ward Nos.9 & 10, the result had already been declared. So, the conclusion is also that there is due compliance of Rule 51 of the Rules. The Court holds that there has been no deviation from the Rules, while considering the request for recounting of votes. Hence, the decision of learned court below is susceptible to revision and therefore, shall have to be overturned.

23. At the cost of repetition, it is reiterated that a law has to be followed scrupulously without any dilution with a proof on record that there is substantial compliance of the same. It is not that a rule of law is defeated and still recounting of votes to be justified blindly following the catchphrase-'truth must prevail'. According to the Court, the truth is to really prevail but it should not be at the cost of a law to apply and govern and

despite substantial prejudice being caused to the adversary. Having said that and considering the material evidence and the rival contentions advanced, the ultimate view of the Court is that the decision of learned Civil Judge, Jaleswar is to be upheld.

24. Hence, it is ordered.

25. In the result, the writ petition stands allowed. As a necessary corollary, the impugned judgment dated 4th March, 2024 passed in Election Appeal (FAO) No.91 of 2023 under Annexure-6 by learned District Judge, Balasore is hereby set aside, thereby, affirming the decision dated 26th September, 2023 in Election Misc. Case No. 01 of 2022 as at Annexure-4. However, in the circumstances, there is no order as to costs.

(R.K. Pattanaik) Judge

Balaram/Rojina

Designation: Junior Stenographer