Banoj Kumar Mohapatra vs Tapan Kumar Nayak & Others

Biswanath Rath,J

This is a writ petition filed by the unsuccessful candidate for the post of Sarpanch assailing the first part of the order dated 11.10.2017 vide

Annexure-4 passed by an election court involving a Grama Panchayat Election thereby allowing the petition dated 11.9.2017 at the instance of the

election petitioner to call for ballot box involving the election involved therein.

Sri Gautam Mukherji, learned counsel for the petitioner taking this Court to the plaint averments involving the election dispute and taking to the

decision of the Hon’ble Apex Court submitted that law has been settled clearly prohibiting calling for ballot box involving election disputes more

particularly in absence of any specific pleading establishing a necessity for calling for ballot box, Sri Mukherji, learned counsel thus contended that

there is no proper consideration of the issue involved by the trial court. Sri Mukherji taking this Court to the decisions of the Hon’ble Supreme

Court rendered in the case of Kuttinokkula Murali Krishna v. Veeramalla Koteswara Rao & Ors, AIR 2010 Supreme Court 24 and in the case of

 Baldev Singh v.Shinder Pal Singh & Ors,(2007) 1 SCC 341 contended that the impugned decision suffers on account of an outcome of non-

consideration of pleadings involved herein, the settled position of law and non-application of mind by the trial court.

Ms.B.Mohanty, Learned counsel appearing for the contesting opposite party in her contest on the other hand opposing the submission of Sri

Mukherji and taking this Court to the evidence of the election petitioner and other witnesses, contended that for the specific evidence of the parties,

there was a case required to be considered by the trial court and the trial court has rightly appreciated the issue involved therein thereby passing the

impugned order which need not to be interfered with.

Considering the rival contentions of the parties and going through the pleading involving Election Misc. Case No.2/45 of 2017, this Court finds there

is absolutely no allegation involving either illegal acceptance or illegal rejection of any single vote even considering the issue involving the impugned

action requiring a call for the ballot box. Taking note of the decision in the case of Kuttinokkula Murali Krishna (supra), this Court finds in similar

situation the Hon’ble Apex Court in paragraph-11 has come to observe as follows:

 “Before examining the merits of the issues raised on behalf of the parties, it would be appropriate to bear in mind the salutary principle laid down in the Election

Law that since an order for inspection and re-count of the ballot papers affects the secrecy of ballot, such an order cannot be made as a matter of course.

Undoubtedly, in the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the purity,

propriety and legality in the counting of votes are made out. The importance of maintenance of secrecy of ballots and the circumstances under which that secrecy

can be breached, has been considered by this Court in several cases. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers

and order re-count, two basic requirements viz. (i) the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material

facts on which the allegations of irregularity or illegality in counting are founded, and (ii) on the basis of evidence adduced in support of the allegations, the Tribunal

must be, prima facie, satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively

necessary, are satisfied. Broadly stated, material facts are primary or basic facts which have to be pleaded by the election petitioner to prove his cause of action and

by the defendant to prove his defence. But, as to what could be said to be material facts would depend upon the facts of each case and no rule of universal

application can be laid down.â€​

. Similarly, going through the decision in between M.Chinnasamy v. K.C.Palanisamy and Ors, (2004) 6 SCC 341, Hon’ble Supreme Court

observed as follows:

â€The question as to what would constitute material facts would, however, depend upon the facts and circumstances of each case. It is trite that an order of re-

counting of votes can be passed when the following ingredients are satisfied: (1) if there is a prima facie case; (2) material facts therefore are pleaded; (3) the court

shall not direct re-counting by way of roving or fishing inquiry; and (4) such an objection had been taken recourse to.

The necessity of “maintaining the secrecy of ballot papers†should be kept in view before a re-counting is directed to be made. A direction for re-counting shall

not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow.â€​

Again in the case of T.A.Ahammed Kabeer v. A.A. Azeez And Ors, (2003) 3 SCR 511, the Hon’ble Apex Court again observed as follows:

“It is true that a re-count is not to be ordered merely for the asking or merely because the court is inclined to hold a re-count,. In order to protect the secrecy of

ballots the court would permit a re-count only upon a clear case in that regard having been made out. To permit or not to permit a re-count is a for making a request

for re-counting 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 where for he is required to assign

sufficient or cogent reasons. In the event such an application is allowed either in whole or in part, he is statutorily empowered to amend the results also.

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 therefore. 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 re-counting. 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 re-counting

has been made out.â€​

This Court finds above legal provision has again been reiterated by the Hon’ble Apex Court in the case of Baldev Singh v. Shinder Pal Singh and

Ors,(2007)1 SCC 341.

In the circumstance and after going through the plaint involving the election dispute, this Court finds there is absolutely no pleading establishing a

case for calling for ballot box. In the event the election courts are permitted to interfere to such extent it will be amounting to not only facilitating a

roving inquiry but also involving fishing or inventing materials to make out a case for the election petitioner, which is not permissible in the eye of law.

It is here considering the further submission of learned counsel for the contesting opposite party that the evidence from the side of election petitioner

established a case for re-counting, this Court finds such evidence if any since beyond the pleadings involving the election petition, it has no evidenciary

value.

For the observation of this Court and the settled position of law, as indicated hereinabove, this Court finds there is illegal consideration of the issue

involving the trial court. In the result, this Court interfering in the first part of the impugned order dated 11.10.2017 involving Election Misc. Case

No.2/45 of 2017 vide Annexure-4 sets aside the same.

Consequently, the writ petition succeeds. However, there is no order as to cost.       Â