ORISSA HIGH COURT: CUTTACK. W.P.(C) No. 3672 of 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India ----------- Suresh Kumar Sarangi …… Petitioner -Versus- Bansidhar Jagdev & Others …… Opp. parties For Petitioner : M/s. Sukanta Ku Dalai & T.K. Swain. For opp. parties: M/s. Ashok Kumar Mohapatra, Alok Kumar Mohapatra, N.C. Rout, S.K. Padhi, A.R. Swain & M. R. Routray (O. P. 1). ----------------------------- Date of Judgment: 22.03.2011 ------------------------------ PRESENT : THE HONOURABLE SHRI JUSTICE M.M. DAS M. M. DAS, J. The election of the petitioner as a Member of Kanas Panchayat Samiti from Divyasinghpur Gram Panchayat constituency has been challenged by the opposite party no.1 in an election petition filed under section 44-B of the Panchayat Samiti Act, 1959( hereinafter referred to as “the Act”) before the learned Civil Judge (Senior Division), Puri, numbered as Election Misc. Case No.5 of 2007. The opposite party no.1 challenged the election of the petitioner on the ground mentioned in Clause-(b) of Sub-section-(1) of Section 44 (2) of the Act. The petitioner after appearing in the said election petition denied the allegations made in the election petition. The learned Tribunal after framing the issues heard the election petition and during course of hearing, the opposite party no.1 filed an application on 13.12.2007 praying therein for opening of the ballot papers including the rejected votes relating to Booth Nos.2, 3, 4 and 12 for inspection and recounting. The learned Tribunal by order dated 07.02.2008 after hearing the counsel for the respective parties directed that the said petition dated 13.12.2007 will be taken up for consideration after closure of evidence of the contesting opposite party no.1 (writ petitioner) in the election petition . The Tribunal, thereafter, recorded the evidence adduced by both the parties. From the order- sheet of the Tribunal, it appears that the writ petitioner, who was the opposite party no.1 in the election petition, made a prayer for adjournment on 14.02.2008 on the ground that his witness is ill. As the said application was not supported by a medical certificate and as the learned Tribunal found that several adjournments have been given for examination of the witness and the witnesses have not been produced, rejected the prayer for adjournment and posted the case to 18.02.2008 for hearing of the petition dated 13.12.2007. On 18.02.2008, as none of the counsel appeared on call, the matter was adjourned to 21.02.2008 on which date again the writ petitioner, who was the opposite party no.1, filed a petition for time. The Court, therefore, posted the case to 26.02.2008. After hearing the learned counsel for the parties on 26.02.2008 the Tribunal directed as follows: “Since all the election materials have been produced in the court of the Election Officer-cum-B.D.O., 2 Puri (O.P.No.2), inspection and recounting of the votes including the rejected votes of Booth Nos.2,3,4 and 12 of the concerned Panchayat Samiti Election be taken up on 13.03.2008. All the parties to the Election Misc. Case must remain present to cooperate with the court for the above purpose in every possible manner right from 11 A.M. onwards. The inspection and recounting etc. will be taken up in the chamber of the Presiding Officer in presence of all the three parties and their respective counsels (one for each party). The Bench Clerk, Sheristadar and the orderly of the Court will assist the court in the recounting process. Without the permission of the court none else will be permitted to enter inside the chamber which will be used as the court for the purpose on that day, as already been mentioned. The learned counsels for all the three sides be informed accordingly and their signatures be obtained on the 4th column of the order sheets in token of their knowledge of the same.” Being aggrieved by the said order, the petitioner has preferred the present writ application. 2. Learned counsel for the petitioner submitted that the Election Tribunal has not given an opportunity to the petitioner to produce his witness in spite of the prayer made earlier to passing of the impugned order. He further submitted that the learned Tribunal could not have directed inspection and recounting of the ballot papers, as no case has been made out by the election petitioner. 3. Mr. Mohapatra, learned counsel appearing for the opposite party no.1 in this writ petition, on the other hand, contended that the learned Election Tribunal after completion of evidence and on analyzing the same, has found the necessity for inspection and recounting of the ballot papers and as no illegality or impropriety is found in the impugned order, the same should not be interfered with. The learned counsel for the petitioner also raised a question that since the opposite party no.1-election petitioner has not exercised his 3 statutory right provided under Sub-rule (7) of Rule-31 of the Panchayat Samiti Election Rules and thus, he could not have prayed for inspection and recounting of the ballot papers in respect of the booths mentioned above. Various case laws were cited by the respective parties in support of their contentions. 4. With regard to the contention of the writ petitioner that his application for producing further witness was rejected illegally, this Court on perusal of the various orders passed by the Election Tribunal does not find any illegality in the action of the Election Tribunal by which the prayer of the petitioner for producing another witness was rejected. 5. With regard to the question as to whether, if a candidate has not asked for recounting of votes to the Election Officer as per the provision of the aforesaid Rules, he would be debarred from making such an application in the election petition, was dealt with in the case of Chandrika Prasad Yadav v. State of Bihar (2004) 6 SCC 331, wherein the Hon’ble Supreme Court in Paragraphs-25 and 26 held as follows:- “25. Rule 79 as noticed hereinbefore enables a candidate to file an appropriate application for recounting of votes. Rule 79 unlike rules framed by other States does not say that such an application would not be maintainable after declaration of the votes polled by the parties or prior thereto. Such an application, therefore, can be filed at any point of time. The very fact that sub-rule (3) of Rule 79 provides for amendment of the result relating to the votes polled by the respective candidates and as such amended result is required to be announced in the prescribed form under sub-rule (2) of Rule 79, the same itself is a pointer to the fact that even after 4 announcement of result an application for recounting would be maintainable. It may be true that only because such an application had not been filed before the Returning Officer by itself may not preclude the Election Tribunal to go into the question of requirement of issuing a direction for recounting but there cannot be any doubt whatsoever that Rule 79 serves a salutary purpose. Counting of ballot papers in terms of the rules take place in presence of the candidate or his counting agent. When an agent or a counting agent or the candidate himself notices improper acceptance or rejection of the ballot papers, he may bring the same to the notice of the prescribed authority. As noticed hereinbefore, in a given case, an application for recounting either before announcement of the result or thereafter, would be maintainable. Once an application is filed by an agent or a counting agent or the candidate himself pointing out the irregularities committed by the officers appointed for counting the ballot papers, immediate redressal of grievances would be possible. As indicated hereinbefore, while filing such an application the basis for making a request for recounting of votes is required to be disclosed. The Returning Officer is statutorily enjoined with a duty to entertain such an application, make an inquiry and pass an appropriate order in terms of sub-rule (2) of Rule 79 either accepting in whole or in part such requests or rejecting the same wherefor he is required to assign sufficient or cogent reasons. In the event such an application is allowed either in while or in part, he is statutorily empowered to amend the results also. 26. Ordinarily, thus, it is expected that the statutory remedies provided for shall be availed of. If such an opportunity is not availed of by the election petitioner, he has to state the reasons therefor. If no sufficient explanation is furnished by the election petitioner, as to why such statutory remedy was not availed of, the Election Tribunal may consider the same as one of the factors for accepting or rejecting the prayer for recounting. An order of the prescribed authority passed in such application would render great assistance to the Election Tribunal in arriving at a decision as to whether a prima facie case for issuance of direction for recounting has been made out.” (emphasis supplied) 6. With regard to the contention that when the Tribunal considering the evidence in light of the allegations made by the 5 election petitioner was satisfied that inspection should be ordered, the same should not ordinarily be reversed in appeal, the Supreme Court in the case of Dr. Jagjit Singh v. Giani Kartar Singh and others , AIR 1966 SC 773 held in paragraph-35 as follows: “35. We are not prepared to accept this contention. The order passed by the Tribunal clearly shows that the Tribunal did not apply its mind to the question as to whether sufficient particulars had been mentioned by the appellant in his application for inspection. All that the Tribunal has observed is that a prima facie case has been made out for examining the ballot papers; it has also referred to the fact that the appellant has in his own statement supported the contention and that the evidence led by him prima facie justifies his prayer for inspection of ballot papers. In dealing with this question, the Tribunal should have first enquired whether the application made by the appellant satisfied the requirements of Section 83(1) of the Act; and, in our opinion, on the allegations made there can be only one answer and that is against the appellant. We have carefully considered the allegations made by the appellant in his election petition as well as those made by him in his application for inspection, and we are satisfied that the said allegations are very vague and general, and the whole object of the appellant in asking for inspection is to make a fishing enquiry with a view to find out some material to support his case that Respondent 1 had received some invalid votes and that the appellant had been denied some valid votes. . Unless an application for inspection of ballot papers makes out a proper case for such inspection, it would not be right for the Tribunal to open the ballot boxes and allow a party to inspect the ballot papers, and examine the validity or invalidity of the ballot papers contained in it. If such a course is adopted, it would inevitably lead to the opening of the ballot boxes almost in every case, and that would plainly be inconsistent with the scheme of the statutory rules and with the object of keeping the ballot papers secret. That is why we are satisfied that the High Court was right in coming to the conclusion that the appellant had failed to make out a case for the inspection of the ballot boxes in this case” 7. A perusal of the impugned order in the present case clearly goes to show that the election petitioner has not produced any 6 material to show as to why he did not avail the statutory remedy provided under Rule-31(7) of the Panchayat Samiti Election Rules nor the learned Tribunal has analyzed the evidence adduced in relation to the allegations made in the election petition before passing the order for inspection and recounting of the ballot papers including the ballot papers of the booths in which recounting was sought for by the election petitioner. In the touchstone of the aforesaid decisions of the Apex Court, the impugned order is unsustainable and is accordingly quashed. However, it will be open for the Election Tribunal to reconsider the application made by the opposite party no.1 for inspection and recounting of the ballot papers only in respect of the booths for which it was prayed for by considering the evidence adduced before him and the materials produced as well as the averments made in the election petition. 8. Accordingly the impugned order dated 26.02.2008 passed in Election Misc. Case No.5 of 2007 stands quashed and the writ petition is allowed, but in the circumstances without cost. The interim order passed earlier stands vacated. …………………… M.M. Das, J. Orissa High Court, Cuttack. March 22nd 2011/Himansu 7 8