Manjulata Samantaray vs Election Officer-Cum-Bdo on 6 March, 2026

Author: R.K. Pattanaik

Bench: R.K. Pattanaik

       IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR                   W.P.(C) No.1790 of 2025

       Manjulata Samantaray                 ....            Petitioner
                                            Mr. A. P. Bose, Advocate

                                   -Versus-


        Election Officer-cum-BDO, ....                Opposite Parties
        Mahakalapada, Kendrapara
        & another
                                              Mr. P.K. Sahoo, ASC
                                                       (O.P. No.1)
                                       Mr. M.K. Mohanty, Advocate
                                                        (O.P. No.2)

                 CORAM:
                 JUSTICE R.K. PATTANAIK
                  DATE OF HEARING:26.11.2025
                 DATE OF JUDGMENT:06.03.2026


      1.

Instant writ petition is filed by the petitioner assailing the impugned order dated 2nd January, 2025 as at Annexure-1 passed in connection with Election Appeal No.01 of 2024 by the learned District Judge, Kendrapara, whereby, the decision dated 12th September, 2023 in Election Misc. Case No.11 of 2022 of learned Election Tribunal-cum-Civil Judge (Junior Division), Kendrapara disallowing recounting of votes at the behest of opposite party No.2 was set aside on the grounds inter alia that such inspection/recount of votes could not have been directed in the facts and circumstances of the case and for being not in accordance with law.

2. In fact, opposite party No.2 questioned the election of the petitioner on various grounds including rejection of valid votes. The details of the plea advanced by opposite party No.2 have been pleaded in the election petition, a copy of which is at Annexure-2. The election of the petitioner has been challenged seeking a declaration in favour of opposite party No.2 as duly elected Sarpanch of Mangalpur Gram Panchayat under Mahakalapada Panchayat Samiti with a direction to the Election Officer to cause production of the votes polled during the election in respect of the identified booths along with other relevant papers for the purpose of recounting/verification/inspection of the same by the learned Civil Judge (Junior Division), Kendrapara. After the evidence was received and when the proceeding was at the stage of argument, opposite party No.2 moved an application on 17 th August, 2023 seeking inspection/recount of votes while reiterating the pleading on record besides the material evidence in support thereof. The petitioner challenged such a move and filed an objection dated 29th August, 2023 and considering the same, the learned Civil Judge (Junior Division), Kendrapara declined it. As against the rejection order, opposite party No.2 approached this Court in W.P.(C) No.36447 of 2023 disposed of on 23rd September, 2024 granting liberty to challenge the decision on recounting of votes by filing an appeal. The learned court below entertained the appeal and as earlier stated, allowed the same and set aside the decision dated 12th September, 2023 in Election Misc. Case No.11 of 2022 and directed inspection/recount of votes in respect of eight booths to be held on the date fixed in

presence of both the sides and also an official deputed by the Collector-cum-District Election Officer, Kendrapara and thereafter, to proceed to dispose of the election proceeding in accordance with law. Being aggrieved of, the petitioner has filed the writ petition challenging the impugned decision dated 2nd January, 2025 of the learned District Judge, Kendrapara vide Annexure-1.

3. The main grounds of challenge vi vis-à-vis the impugned decision of learned court below are (i) that there is no evidence seeking inspection/recount of votes, hence, therefore, it could not have been allowed;(ii) bald claim of opposite party No.2 that votes were illegally counted cannot justify recounting of votes polled; (iii) that is no evidence on record to suggest that the Election Officer acted illegally or was unduly influenced by the returned candidate; (iv) the pleading and evidence before the learned court below should have influenced the decision whether the votes are to be recounted as has been demanded by the other side; and (v) the learned court below abruptly arrived at a conclusion that the election petitioner has a prima facie case for recount when the materials on record were found to be otherwise.

4. Heard Mr. Bose, learned counsel for the petitioner, Mr. Sahoo, learned ASC for the State and Mr. Mohanty, learned counsel for opposite party No.2.

5. Mr. Bose, learned counsel for the petitioner submits that the learned court below failed to take judicial notice of the fact that recounting of votes is permissible only if a case

is made out and under exceptional circumstances and not routinely. The further submission is that inspection/recount of votes could not have been allowed in view of the nature of evidence received from the election petitioner. The submission is that secrecy in an election proceeding is to be maintained and unless, it has been specifically pleaded, recounting of votes should not be allowed. The contention is that the learned Civil Judge (Junior Division), Kendrapara rightly reached at a conclusion that inspection/recount of votes cannot be permitted for the reasons indicated while disposing of the application demanding the same. Mr. Bose, learned counsel would submit that the evidence received from the side of the election petitioner could not have been considered sufficient to allow recounting of votes and that apart, maintenance of secrecy of the ballot is sacrosanct and therefore, it cannot be broken unless the election petitioner is able to make out a case for recounting and therefore, the decision dated 12th September, 2023 ought not to have been overturned by the learned court below while dealing with the appeal and hence, the impugned judgment dated 2nd January, 2nd January, 2025 at Annexure-1 is liable to be set aside.

6. Recorded the submission of Mr. Sahoo, learned ASC for the State. Mr. Mohanty, learned counsel for opposite party No.2 submits that the rejection order in Election Misc. Case No.11 of 2022 is on an erroneous premise that the demand for inspection/recount of votes is rested on the plea of corrupt practice, which could not be substantiated and even not pleaded. The contention is that a case has been made out by

the election petitioner for recount of votes in respect of the earmarked booths and the same is justified since valid votes have been rejected and illegally counted in favour of the returned candidate. The further submission is that there has been pleading on record and it received corroboration in course of hearing with the examination of witnesses from the side of the election petitioner and therefore, it was rightly considered by the learned court below and correctly overruled the rejection order and allowed the inspection/recount of votes vide Annexure-1, a decision which is perfectly justified.

7. In course of hearing, Mr. Mohanty, learned counsel for opposite party No.2 cited the following decisions, such as, Chandeshwar Saw Vrs. Brij Bhusan Prasad and others (2020) 12 SCC 70; Sadhu Singh Vrs. Darshan Singh & another 2006 (II) CLR (SC) 569; and Smt. Bibhuti Nayak Vrs. Smt. Basanta Manjari Nayak (2014) (II) OLR 916 to contend that factual foundation was laid down while demanding recount of votes corroborated by evidence and considering the same, the learned court below allowed the appeal.

8. The election of the petitioner is questioned in terms of Section 39(b) of the Odisha Grama Panchayats Act, 1964 (hereinafter referred to as 'the Act'). The learned Civil Judge recorded the evidence of the election petitioner and also the returned candidate. In fact, the election petitioner examined herself as P.W.4 with other witnesses. The returned candidate has also examined witnesses including the counting agents

and herself as OPW.5. At the stage of argument, as earlier stated, such an application with a request for inspection/recount of votes was received from the election petitioner and it has ultimately led to passing of the impugned order i.e. Annexure-1. The improper rejection of valid votes is the basis for demanding inspection/recount of ballot papers and it has been seriously opposed by the returned candidate with a plea that no prima facie case has been made out for the same and the very intent of the election petitioner behind such an application is for a roving inquiry, which is not permissible under law. The learned court below considered the case laws cited by both the sides and ultimately concluded that the pleading on record and the evidence received from the side of the election petitioner has made out a case for inspection/recount of votes.

9. The objection to the election of the returned candidate is on the premise that the valid votes in favour of the election petitioner have been rejected and counted in her favour. It has been claimed by the election petitioner that such improper rejection of votes was confronted to the Election Officer with a demand for recount of votes, but it was refused. A copy of the objection as per Ext.7 is referred to by the election petitioner, probative value of which, was considered and discussed by the learned court below with a conclusion that Rule 51(2) of the Odisha Gram Panchayat Election Rules, 1965 (in short 'the Rules') provides submission of written objection seeking recount of votes only after declaration of the result of election and admittedly, the

result was declared on 2nd March, 2022, whereas, the objection i.e. Ext.7 is dated 28th February, 2022 and therefore, the same cannot be treated as an application under the Rules, but concluded that inspection/recount of votes should be allowed in order to do complete and effective justice to the parties.

10. In Chandeshwar Saw (supra), it has been held by the Apex Court that if there is proper pleading on record claiming that valid votes cast in favour of the election petitioner improperly rejected and counted for the returned candidate and it is proved by way of adducing evidence, a strong prima facie case is made out for recounting of ballot papers. While referring to an earlier decision in Bhabhi Vrs. Sheo Govind & others (1976) 1 SCC 687, the principles enunciated therein have been reiterated as to when inspection/recount of votes should be allowed. In the aforesaid decision, the Apex Court, considering other case laws, summarized the following conditions fulfillment of which is necessary for a Court to grant inspection/recount of ballot papers, namely, (i) it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations;(ii) before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of materials facts; (iii) the Court must be prima facie satisfied on the materials produced regarding the truth of the allegations made while demanding the recounting; (iv) the Court must

come to the conclusion that in order to grant prayer for inspection, it is necessary and imperative to do full justice between the parties; (v) the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish out materials for declaring the election to be void; and (vi) on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made before recounting is directed.

11. In Sadhu Singh (supra), the Apex Court held that the following factors are relevant before directing recount of votes, such as; (i) a 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 recounting of votes; (iv) an objection to the same should be raised; and (v) secrecy of ballot papers should be maintained.

12. In Smt. Bibhuti Nayak (supra), a Division Bench of this Court discussed the case laws and ultimately held and observed that notwithstanding, the emphasis on the secrecy of ballot being sacrosanct having been stressed upon, an exception to the insulation thereto from scrutiny is needed to be carved out and if sacrosanctity of ballot papers is pitted against solemnity, purity and authenticity of the election process, recount of votes ought to be permitted to resolve the dispute and to ensure complete justice between the parties.

13.. A reference may be had to the following decisions, such as, Gursewak Singh Vrs. Avtar Singh & others (2006) 4 SCC 542; M. Chinnasamy Vrs. K.C. Palanisami & others (2004) 6 SCC 341; Chandrika Prasad Yadav Vrs. State of Bihar & others (2004) 6 SCC 331; and Tanaji Ramchandra Nimhan Vrs. Swati Vinayak Nimhan and others (2006) 2 SCC 300, wherein, the Apex Court considered such a question vis-à-vis inspection/recount of votes and the relevant factors for the Courts bear in mind.

14. A copy of the election petition at Annexure-2 is gone through, wherein it has been pleaded by the election petitioner that at the time of counting, it was ascertained that the election petitioner secured 1780 valid votes and returned candidate received 1671 votes and 37 votes were rejected but on being influenced by opposite party No.2 and her husband, the Counting Officer improperly rejected 27 valid votes polled in her favour in different booths and 50 votes were illegally counted for opposite party No.2 in Ward Nos.11 and 12. The details of the reception and rejection of votes at the time of counting have also been pleaded therein with the claim that the returned candidate received 109 votes less than the election petitioner, who secured 1780 votes but because of the illegality committed at the time of counting and in spite of the objection and demand for recounting of all the votes, it was not heeded to. Upon reading of the evidence received from the election petitioner, the facts pleaded have been reiterated by them. In fact, an objection was raised, even though, it has not been at the appropriate stage referring to

Ext.7, which was prior to the result of the election being declared, nevertheless, the Court finds that a foundation has been laid while demanding such inspection/recount of votes. The election petitioner while under examination and also the witnesses physically present at the time of counting of ballot papers raised objection for improper rejection of valid votes received in their favour as further revealed. The Court is inclined to endorse the view of the learned court below that irrespective of any such objection not being raised at the earliest point of time, there is no bar in demanding the inspection/recount of votes. In other words, the election petitioner is not precluded from requesting any such inspection/recounting of ballot papers before the Tribunal at a later stage even when not pleaded earlier. A case law in Sohan Lal Vrs. Babu Gandhi and others AIR 2003 SC 320 has been relied upon by the learned court below, wherein, in disagreement with the ratio decided in Ramarati case, the Apex Court held and observed that a Court cannot direct recount of votes unless it is applied by one of the parties, but there is no prohibition in the Act or under the Rules against recount of the ballot papers; even otherwise, a party may not know that such recounting is necessary till after the result is declared; and at that stage, when the result has not been published, it would not be possible for a party to apply for recounting and therefore, only remedy would be to file an election petition under Section 122 of the Act and in such a case, the Court is bound to consider the plea and where it is prima facie proved may direct recounting of votes depending upon the evidence led by the parties. The Court is

of the view that even though there has been an objection to the improper rejection of votes pleaded on record and received evidence from the side of the election petitioner, a case has been made out for inspection/recounting of votes requested by opposite party No.2. It is also a settled law that raising an objection before the Election Officer for recount of votes is not a condition precedent to direct inspection/recounting of ballot papers and in a befitting case, the Tribunal is well within its power and may allow the same. But, while considering any such request, the Court shall have to keep in mind the principles discussed and reiterated by the Apex Court in Chandeshwar Saw (supra). In the case at hand, the margin of votes received is narrow, but that would not be a sole consideration while directing inspection/recount of votes. The facts remains necessary pleading is on record from the side of the election petitioner and that an objection was raised at the time of counting itself for improper rejection of valid votes and counting of the same as against the returned candidate and details of the rejected votes and the reason behind such rejection have been revealed and it received corroboration during trial and notwithstanding any such objection from the side of the returned candidate, the request for inspection/recounting of votes ought to have been accepted by the learned Civil Judge, but it was refused by order dated 12th September, 2023. As it is made to understand, the learned Civil Judge proceeded on an erroneous premise that there is corrupt practice alleged, which is not the case or anything has been specifically pleaded in that regard. It has also been on the ground that the

presence of the counting agents of the election petitioner did not receive support from any documentary evidence, hence, nothing on record other than just oral testimony, which is not sufficient for considering inspection/recount of votes, but such a conclusion, according to the Court, is clearly inconsistent with the pleading on record. What more details the election petitioner could have revealed while demanding inspection and counting of ballot papers of the concerned booths. In the considered view of the Court, the pleading on record is enough to direct inspection/recount of votes as it has received ample corroboration by way of evidence and hence, the learned court below did not err in allowing the recounting of votes. In other words, it has to be concluded that the decision of the learned Civil Judge has been rightly interfered with carrying a direction for inspection and recount of votes in open court in presence of both the sides.

15. Accordingly, it is ordered.

16. In the result, the writ petition stands dismissed.

(R.K. Pattanaik) Judge Balaram

Designation: PERSONAL ASSISTANT