Orissa High Court
Swatismita Baral vs Rojina Swain & Others on 9 May, 2025
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.16789 of 2023
Swatismita Baral .... Petitioner
Mr. S.S. Tripathy, Advocate
-versus-
Rojina Swain & Others
.... Opposite Parties
Mr.C. K. Pradhan, AGA
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
09.05.2025
Order No.
08. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard Mr. S.S. Tripathy, learned counsel appearing
for the Petitioner. In spite of due notice, no appearance
has been made by the contesting Opposite Party No.1.
3. The present Writ Petition has been filed inter alia
challenging the judgment dtd.29.03.2023 so passed by
the learned Addl. District Judge, Kamakhyanagar in
F.A.O. No.03/2022 and order dtd.31.10.2022 so passed
by the learned Civil Judge, (Jr. Division), Kamakhyanagar
in Election Misc. Case No.04/2022.
4. It is contended that the election petition was filed by
the present petitioner in Election Misc. Case No.04/2022
inter alia with the prayer that the ballots papers of
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Batagaon Gram Panchayat may kindly be recounted by
the Court in presence of both the parties.
4.1. It is contended that on the face of such prayer as
made in the election petition, when the same was rejected
vide order dtd.31.10.2022 under Annexure-7, Petitioner
challenging the same moved the appellate court by filing
FAO No.03/2022. But the appellate court without proper
appreciation of the relief claimed in the election petition
vis-à-vis the law governing the field rejected the same vide
the impugned judgment dtd.29.03.2023.
4.2. Learned counsel appearing for the Petitioner
vehemently contended that the appellate court only on
the ground that no such application since was ever made
by the Petitioner before the Presiding Officer seeking
recounting of the votes, after declaration of the result no
such prayer is entertainable.
4.3. Placing reliance on the decision of the Hon'ble Apex
Court in the case of Sohan Lal vs. Babu Gandhi &
Others, reported in (2003) 1 SCC -108, learned counsel
appearing for the Petitioner contended that Hon'ble Apex
Court in the said reported decision has held that in
absence of any such application being filed before the
Presiding Officer, there is no bar to make a prayer for
recounting of the votes and such prayer has to be
considered by the election Tribunal.
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4.4. It is contended that since the application of the
Petitioner has been rejected on the ground that no
application was ever filed before the Presiding Officer,
being contrary to the view expressed by the Hon'ble Apex
Court, the impugned judgment is not sustainable in the
eye of law.
4.5. Hon'ble Apex Court in Para-14 of the judgment has
held as follows:-
"14. In view of Section 122 and the rules, we are unable
to agree with the ratio laid down in Ram Rati's case. It is
not correct to hold that, in an election petition, after the
declaration of the result, the Court or Tribunal cannot
direct recounting of votes unless the party has first applied
in writing for recounting of votes. There is no prohibition in
the Act or under the rules prohibiting the Court or Tribunal
to direct a recounting of the votes. Even otherwise a party
may not know that the recounting is necessary till after
result is declared. At this stage, it would not be possible
for him to apply for recounting to the Returning Officer. His
only remedy would be to file an Election Petition under
Section 122. In such a case, the Court or the Tribunal is
bound to consider the plea and where case is made out, it
may direct recount depending upon the evidence led by the
parties. In the present case, there was obvious error in
declaring the result. We, therefore, hold that the ratio laid
down in Ram Rati's case is not correct".
5. Even though no appearance has been made by
Opposite Party No.1, learned Addl. Government Advocate
placing reliance on the provisions contained under
Section-34 of the Odisha Grama Panchayats Act, 1964
contended that an election petition can be filed by a
candidate by filing a petition under Section-34 of the OGP
Act, 1964 inter alia with the prayer to set aside the
election of the elected candidate and in addition to that
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main prayer other consequential prayer can be made.
But the election petitioner / present Petitioner since has
never prayed for declaration of the election of the elected
candidate to be set aside, the prayer as made in the
election petition as per the considered view of this Court
is not at all entertainable. Section 34 of the Odisha
Grama Panchayats Act, 1964 reads as follows:-
"34. Relief that may be claimed by the Petitioner-A
petitioner, may, claim in an election petition. Specifically, a
petitioner, in addition to declaring the election of returned
candidates void, can also claim that they themselves, or
any other candidate, have been duly elected".
5.1. It is contended that since no prayer has been made
to set aside the election of the elected candidate, the
prayer made by the election petitioner only to recount the
votes, has been rightly rejected by the Trial Court as well
as the Appellate Court placing reliance on the provisions
contained under Rule-51(2) of the Odisha Gram
Panchayat Election Rules, 1985.
6. Having heard learned counsel appearing for the
Parties, considering the submissions made and taking
into account the fact that no such prayer has been made
by the Petitioner to set aside the election of the elected
candidate, which is the prime requirement to file an
election petition, this Court is not inclined to interfere
with the impugned judgment so passed by the learned
Trial Court as well as the appellate Court.
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7. Accordingly, the Writ Petition stands dismissed.
(Biraja Prasanna Satapathy)
Judge
Subrat
Location: HIGH COURT OF ORISSA, CUTTACK
