Parikhita Padhan vs Block Development Officer and Others

B.K. Nayak, J.—Order dated 16.12.2013 vide Annexure-4 passed by the Additional Civil Judge (Junior Division), Loisingha in Election Petition No. 6 of 2012 allowing the application filed by the present opposite party No. 3 for recounting of votes has been assailed in this writ application.

In 2012 Panchayat Election, the present petitioner got elected as Ward Member of village-Kutrapali, Ward No. 5 of Sakma Grama Panchayat under Bolangir Block. His election was challenged by the present opposite party No. 3 on the ground that non-officially it was declared by the Presiding Officer that the petitioner got 106 votes and opposite party No. 3 (election petitioner) got 120 votes and 23 ballots were rejected and such declaration was made in presence of the candidates and their polling agents. But, subsequently by committing illegality and irregularity the Election Officer formally declared the petitioner elected as Ward Member and that the petitioner thereafter filed a written complaint to the Election Officer asking for recounting of votes. It was further alleged that when opposite party No. 3 contacted the Presiding Officer, the latter stated that there were some mistakes in filling in the "result counting votes sheet".

The aforesaid averments made in the election petition were denied by the present petitioner in his show cause. The Presiding Officer has also filed a show cause. In the Election case the present opposite party No. 3 (election petitioner) filed a petition on 17.11.2003 for recounting of votes on the ground that the result of the election has been materially affected due to mistake and error committed by opposite party No. 2, the Presiding Officer. The said petition was resisted by the present petitioner by filing objection. By the impugned order, the learned Additional Civil Judge (Junior Division), Loisingha has allowed the said application holding as follows:

"Perused the case record and the petition as well as the objection. In my opinion under this circumstances recounting of ballet papers is necessary for interest of justice and for just decision of this case. And if the petition be not allowed, the petitioner shall suffer irreparable loss and injury which cannot be compensated in form of money. Hence, the petition dated 17.11.13 is allowed in favour of the petitioner."

The Election Officer as well as the Presiding Officer of Ward No. 5 has been impleaded as opposite parties in the election case. In the impugned order, there has been no reference as to whether they have filed any objection to the election petition or not.

Recounting of votes is permissible on the ground of improper acceptance or rejection of votes or mistake in counting only if material particulars are pleaded in detail in the election petition and the petition praying for recounting of votes by the court/Election Tribunal.

In the case of Ram Sewak Yadav Vs. Hussain Kamil Kidwai and Others, , the apex Court held that an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The case of the election petitioner must be set out with precession supported by averments of material facts. To establish a case so pleaded an order for inspection may undoubtedly, if the interest of justice requires, be granted.

With regard to requirements which may justify recounting of votes the apex Court in the case of D.P. Sharma Vs. Commissioner and Returning Officer and Others, observed as follows in paragraph-4 thereof:

"It is well established that in order to obtain recount of votes a proper foundation is required to be laid by the election petitioner indicating the precise material on the basis of which it could be urged by him with some substance that there has been either improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidates which had in reality been cast in favour of the defeated candidate."

In the case of Vadivelu Vs. Sundaram and Others, , the apex Court has held that the petitioner, who seeks recount should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegations it can order recount of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting.

In the case of M. Chinnasamy Vs. K.C. Palanisamy and Others, , it has been held by the apex Court that the question as to what would constitute material facts would however depend upon the facts and circumstance of each case. It is trite that an order of recounting of votes can be passed when the following ingredients are satisfied; (i) if there is a prima-facie case; (ii) material facts therefor are pleaded; (iii) the court shall not direct recounting by way of roving or fishing enquiry; and (iv) such an objection had been taken recourse to. The direction for recounting shall not be issued only because the margin of votes between the returned candidate and the election petitioner is narrow.

In the case of Udey Chand Vs. Surat Singh and Another, , it was held by the Hon''ble apex Court that a petition for recounting of votes must contain adequate statement of material facts on which the election petitioner relies in support of his allegations and it must also be supported by some contemporaneous evidence to show irregularity or illegality in the counting.

In the instant case in the impugned order, the learned court below makes no reference to the pleadings of the parties and the evidence justifying passing of the order directing for recounting of votes. It was submitted by the learned counsel for the petitioner that only P.W. 1 was examined and his cross-examination had not taken place by the time of passing of the impugned order, which is amply clear from the lower court records.

In the aforesaid circumstances, this Court is of the view that the impugned order is an outcome of complete non-application of mind by the court below. Accordingly, the impugned order is quashed and it is directed that after recording of adequate evidence, the learned court below shall reconsider the application for recounting of votes and shall pass a reasoned order.

The writ petition and all misc. cases are accordingly disposed of. No costs.

LCR be sent back to the court below forthwith.