Sujata Mallick vs Chinmayee Behera And Another

Biswanath Rath, J

This Writ Petition is at the instance of the Election Petitioner involves a challenge to the impugned order at Annexure-11 passed by the Election Tribunal-Civil Judge (Junior Division), Salipur in Election Petition No.04 of 2022.

Factual background as pleaded in the Election Petition as well as in the objection of the contesting Opposite Party No.1 appears to be Government of Odisha, Panchayatiraj and D.W. Department by order under Section 12 of the Odisha Gram Panchayat Act, 1964 published in the official Gazette on 08.01.2022 calling upon all Gram Panchayat except Dhinkia Gram Panchayat under Ersama Block to elect the Ward Member and Sarapanch for the purpose of constituting the Gram Panchayats. It is pursuant to above, the State Election Commission under the provision at Article-243-K of Constitution of India and Rule 13 read with Rule-18, 47 and 75 of the Odisha Gram Panchayat Election Rules, 1965 fixed dates for filing of nomination form from 17.01.2022 to 21.01.2022. The Petitioner and Opposite Party No.1 filed their respective nomination forms before the Election Officer in the Palada Gram Panchayat Office. On scrutiny both the Petitioner and Opposite Party No.1 were declared as validly nominated candidates for election for the post of Sarapanch of Palada Gram Panchayat under Nischintakoili Block of Cuttack District.

On the election symbol being allotted, election was scheduled to be held on 18.02.2022. The election being held on 18.02.2022, result was declared on 27.02.2022, the Opposite Party No.1- Chinmayee Behera was declared to be elected as Sarapanch of the Palada Gram Panchayat. It is claimed that the Petitioner having “Fish” as election symbol secured 913 votes whereas the winning candidate Chinmayee Behera- the contesting Opposite Party No.1 secured 915 votes with 17 votes rejected. The Election Petitioner challenging the declaration of election in favour of the contesting Opposite Party No.1 on the premises through paragraph-7 to 15 reads as follows:-

“7. That, the above noted figures are not factually correct. The said election was conducted in an illegal manner to the prejudice of the petitioner in contraventions of the provisions of Orissa gram Panchayat Act of 1964 and thereby amended.

That, it is pertinent to mention here that in Ward No. 9 one Dillip Kumar Mallick, son of Radhakanta Mallick of Village casted votes illegally for which the presiding officer of said booth on the allegation of agents of petitioner rejected the said vote by mentioning an endorsement in the counter foil of ballot paper of said Dillip Kumar Mallick which was kept custody of presiding officer. By the time of endorsement in the counter foil said Dillip Kumar Mallick had put his used ballot paper in the box. When the agent complaint, the presiding officer assured the agent appointed by petitioner that he will intimate the said rejection of ballot paper of Dillip Kumar Mallick to Election Officer in a prescribed format.

With such assurance, the agent of petitioner was silent over the matter with a bonafide belief that the vote of Dillip Kumar Mallick has been rejected. It is further submitted that on the instance of Opp. Party No. 1 Dillip Kumar Mallick casted the said invalid vote in favour of Opp. Party No. 1 by putting the same in the ballot box, as a result petitioner apprehends that one vote of said Dillip Kumar Mallick has been gone in favour of Opp. Party No.1.

That, in counting table of Block, one Prafulla Kumar Dalai, son of Baisama Dalai of mouza Palada was the counting supervisor in Table No. 10 where the counting of Palada Gram Panchayat was taken up. It is pertinent to mention here that Prafulla Kumar Dalai is the uncle of husband of Opp. Party No. 1. Since the Opp. Party No. 1 is the supporter of ruling party, the Opp. Party No. 2 knowing the relationship of Opp. Party No. 1 with said counting supervisor Prafulla Kumar Dalai, deputed him for counting of votes of Palada Gram Panchayat with oblique motive. Moreover Prafulla Kumar Dalai and the Opp. Party No. 1 belong to one village. Said counting Supervisor in order to show his favouritisim and on the instance of Opp. Party No. 2 committed manifest illegality and tried to cheat the Opp. Party No. 1 by any means for which he has not rejected 9 to 12 the ballot papers of Opp. Party No. 1 which ballot papers were ought to have rejected as voting seal have not properly given in the middle side of ballot papers. But the same was counted in favour of Opp. Party No. 1.

That, in Ward No. 1 & 5 six(6) numbers used ballot papers (votes) without the mark of election symbol were illegally and intentionally counted in favour of the winning candidate Chinmayee Behera (Opp. Party No. 1) which would have rejected by the Counting Supervisor in order to prospect of her winning and the result of the election of the petitioner has been materially affected which could have been deducted from the total votes secured by the Opp. Party no. 1.

That, similarly in Ward No. 2 & 4, three (3) numbers of used ballot papers (votes) without the mark of proper voting, the same has been illegally and intentionally counted in favour of the winning candidate Chinmayee Behera (Opp. Party No.1) which would have rejected by the Counting Officer of Nischintakoili Block in order to prospect of her winning and the result of the election of the petitioner has been materially affected which could have been deducted from the total votes secured by the Opp. Party No. 1.

That, in Ward No. 3 & 7 two (2) numbers of valid votes having proper mark of election symbols casted in favour of the petitioner was also illegally and intentionally rejected by the Counting Staffs headed by Election Counting Supervisor at the behest of the winning candidate Chinmayee Behera (Opp. Party No.1) for prospect of her winning as a result, the election of the petitioner was also materially affected and the election petitioner suffered two (2) numbers of valid votes which could have been added in the total numbers of votes secured by the petitioner.

That, similarly in Ward No.6 and 10 four (4) numbers of votes having proper mark of voting symbols casted in favour of the petitioner were illegally and intentionally rejected by the Counting Staffs headed by Election Counting Supervisor at the behest of the winning candidate Chinmayee Behera (Opp. Party No.1) in order to prospect of her winning and the result of the petitioner by then was materially affected and the election petitioner suffered four (4) numbers of valid votes which could have been added in the total numbers of votes secured by the petitioner.

That, it is submitted that the after closure of polling, respective Presiding Officer and fictitious persons illegally rejected some valid votes of the petitioner in the said booths by affixing double voting marks. In spite of objection raised by the agents of the election petitioner in all most all alleged wards, the respective Presiding Officers turned down the same, subsequently at Block level counting, the sole petitioner also filed an application for recounting of votes, but the Election Officer did not allow the same by violating the norms and principles of the Orissa Gram Panchayat Rules and Manuals. In the event, the process of inspection of used ballot papers if the counting is taken up by this Hon’ble Court, it would be found that the petitioner has got majority of valid votes than the winning candidate/ Opp.Party No.1 and is to be entitled to be declared duly selected “Sarapanch” of Palada Gram Panchayat.

That, the votes being void votes are to be segregate from the valid votes at the time of inspection and on recounting it will be found that the election petitioner has received majority of valid votes than the Opp. Party No.1. The votes which have been casted in favour of the Opp. Party No.1 without the mark of signature of the Presiding Officer on the ballot papers are void votes.”

Attempting to draw the attention of the Court of the malfunctioning in the Election, it is claimed that in the circumstance there has been illegal counting of votes. Filing the Election Petition, the Election Petitioner had the following claims by way of prayer:-

“22. That, it is therefore prayed that:-

A. Let  it  be  declared  that  the  declaration, declaring the Opp. Party No. 1 as elected “Sarapanch” of Palada Gram Panchayat is void and be set aside.

B. Let it be declared that the election petitioner having secured majority of valid votes and be declared as duly elected “Sarapanch” of Palada

C. Call for the used, unused ballots, counter foils of used ballots, all statutory forms maintained in respect to the election in question.

D. For inspection of used ballot papers and after determining the improper acceptance and rejected, cause fresh counting.

E. For costs, other relief/reliefs which the election petitioner is entitled to.”

Based   on   service   of   notice,   the   returned   candidate, Chinmayee Behera on her appearance filed a show cause while refuting the allegation in the matter of illegal counting of votes and as well as claims of the rejection of votes.

It is in the above premises the returned candidate objected to the entertainment of the election dispute while also objecting the request of re-counting at the instance of the Petitioner. There has been also filing of objection by the Block Development-cum- Election Officer also in denial on the allegation of the illegal counting of votes and toeing the objection of the returned candidate-the Opposite Party No.1. There is clear disclosers in the Writ Petition that there has been commencement of evidence and Election Petitioner being the P.W.1 along with his other witnesses are already examined. What appears here is after closure of evidence of all the witnesses of the Election Petitioner, the Election Petitioner filed an application before the Election Tribunal praying therein to direct the Opposite Party No.2 for production of ballot box, used and unused ballot papers as well as other election documents relating to election for the post of Sarapanch of Palada Gram Panchayat for the purpose of inspection and re-counting of used ballots of all the wards of Palada Gram Panchayat through the process of Court and this application appears to be at Annexure-8 of the brief. Following service of copy vide Annexure-9, the return candidate filed her version seriously objecting the Interlocutory Application involved therein. Upon hearing both the sides, the Civil Judge, (Junior Division) Salipur passed the impugned order on 09.01.2023 rejecting the application of the Election Petitioner impugned herein. The Election Petitioner in assailing the impugned order has the following grounds:-

“11(A) For that secrecy of ballot, purity of election and free and fair election are the three basic and cardinal principles of election right from the date of introduction of Parliamentary democracy in India. The Hon’ble Apex Court has ruled in its several decisions including (1978) 1 SCC 405, (1996) 4 SCC 53, (2006) 7 SCC 1, (2007) 17 SCC 115, (2014) 5 SCC 312 that, “No doubt secrecy of ballots is permanent, but purity of election is more paramount than secrecy of ballots”

Simillary, in SLP NO. 7414 of 2021 disposed of on 14.09.2022 (S.Rukmani Madagowda – vrs.- C.S. Rajani Annaiah), the Hon’ble Apex Court has ruled, “Purity of elections at all levels, be it election to Union Parliament, or a State Legislature, or a Municipal Corporation, or a Panchayat is a matter of national importance.”

The aforesaid settled principle of law consistently and continuously holds the field for seventy years.

Thus, the first contentions of the Petitioner herein that in the case at hand, the present Petitioner / Election Petitioner insists for application and implementation of the above rule of law and prays on application and implementation of above rule of law the impugned order under Annexure-11 is liable to be set-aside/quashed.

11(B) For that the present petitioner/ Election Petitioner has expressly and specifically set forth the examples regarding breach of purity of election as well as instances required for holding free and fair election, whereas the learned Trial Court has rejected the prayer of the present Petitioner/ Election Petitioner for inspection and recounting of the ballot papers on the plea that an order for inspection and recounting of ballot would affect the secrecy of ballot, which is entirely misconceived under the facts and circumstances of the present case, therefore the impugned order under Annexure-11 is liable to be set-aside/ quashed.

11(C) For that recounting is nothing but repetition of counting to ascertain the accuracy and legality of the counting and there is no question of affecting the secrecy of ballots. In the present case neither the Opp. Party No. 1 nor the Opp. Party No. 2 has alleged that in the event an order for inspection and recounting of ballot is passed it will affect the secrecy of the ballots.

It is further contended here that under the impugned order under Annexure-11 the trial Court has not found that in the event an order for inspection and recounting of ballots is made it will affect the secrecy of the ballots.

Under the premises of the aforesaid facts and circumstances, the impugned order under Annexure-11 is liable to be set-aside/quashed and necessary direction be issued to be Trial Court to conduct inspection and recounting of ballots in order to maintain purity of election as well as free and fair election.

11(D) For that the trial court has referred in its impugned  order  under  Annexure-11  to  the  decision  of Hon’ble Apex Court reported in (1975) 4 SCC 822 which ruled that the Court would be justified in ordering a recount of the ballot papers where-

(1) The election petition contains an adequate statement of all the material facts on which the allegation of irregularity or illegality in counting are founded,

(2) On the basis of evidence adduced such allegations are prima-facie established, affording a good ground for believing that there has been a mistake in counting, and

(3) the Court trying the petition is prima-facie satisfied that the making of such an order in imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.

In the present case at hand, the Petitioner / Election Petitioner satisfies all the above three requirements of law for passing an order for inspection and recounting of ballots. But, the learned Trial Court did not discharge its duty with respect to the third requirement by making an observation that the Court is of the opinion that the present petitioner has failed to satisfy this Court with regard to consider the present petition of recount of ballot papers for the post of Sarapanch of Palada G.P. as she has not specifically mentioned about the illegality and irregularity.

The aforesaid observation is entirely misconceived, perverse, contrary to the pleadings and materials available on record and as such the impugned order under Annexure-11 is liable to be set-aside/quashed.

11(E) For that the specific pleadings of the Petitioner/ Election Petitioner in her election petition are to the following effect under Paragraphs 8 to 13 of her election petition:-

(i) Under Paragraph-8 of the Election Petition, the allegation is to the effect that in Ward No.9 there is one illegal vote cast by impersonation in the name of one Dillip Kumar Mallick and on objection by the polling agent of the Election Petitioner the Presiding Officer of the said booth/ ward made an endorsement on the counterfoil of the ballot in question rejecting the same and assured the agent of the present Petitioner/Election Petitioner to intimate about the said rejection to the Election Officer.

(ii) Under paragraph-9 of the Election Petition, it has been specifically pleaded that the counting of votes of Palada Gram Panchayat was conducted in Counting Table No.10 where one Prafulla Kumar Dalai was appointed as Counting Supervisor, who is the uncle of husband of Opp. Party No.1 Said Counting Supervisor Prafulla Kumar Dalai in order to show his favoritism committed manifest illegalities and counted 9 to 12 ballot papers in favour of Opp. Party No.1 which were ought to have rejected as voting seal have not properly given in the middle side of ballot papers.

(iii) Under Paragraph-10 of the Election Petition, it has been specifically pleaded that in Ward No.1 & 5, six numbers of used ballots without seal mark on the election symbol of Opp. Party No.1 were illegally and intentionally counted in favour of Opp. Party No.1

(iv) Under paragraph-11 of the Election Petition, it has been specifically pleaded that in Ward No.2 & 4, three numbers of ballots without the mark of proper voting, the same have been illegally and intentionally counted in favour of Opp. Party No.1.

(v) Under paragraph-12 of the Election Petition, it has been specifically pleaded that in Ward No.3 & 7, two numbers of valid votes having proper voting mark on the election symbols of the present Petitioner/Election Petitioner were illegally and intentionally rejected.

(vi) Under paragraph-13 of the Election Petition, it has been specifically pleaded that in Ward No.6 & 10, four numbers of votes having proper mark of voting on the symbol of the petitioner were illegally and intentionally rejected.

(vii) Thus, the specific allegation of the Election Petitioner is that 9 (nine) votes which are ought to be rejected have been illegally counted in favour of the Opp. Party No. 1, whereas 6 (six) valid votes cast in favour of the Election Petitioner have been illegally rejected.

Since the difference of margin between the Opp. Party No. 1 and the Election Petitioner being only two and since admittedly the petitioner has been declared to have received 913 valid votes, on inspection and recounting it will be found that six more valid votes are to be added in favour the Election Petitioner and the total number of valid votes received by the Election Petitioner will be (913+6) 919 votes. Whereas since as per the declaration of result of the election the Opp. Party No. 1 has been shown to have received 915 votes, on and after inspection and recounting it will found that 9 (nine) votes which have been illegally counted in favour of Opp. Party No. 1 are to be rejected and finally it will be found that the Opp. Party No. 1 has received (915-9) 906 valid votes only. Thus, the Election Petitioner having secured 13 more valid votes than the Opp. Party No. 1 is entitled to be declared elected as Sarapanch of Palada Gram Panchayat.”

Mr.Mishra, learned Senior Counsel for the Election Petitioner advances his submission on placing the grounds raised herein and taken note hereinabove contended that the reasoning in pressing the application involved in the impugned order is an outcome of clear pleadings and such pleadings supported with clear evidence already on record. Mr.Mishra, learned Senior Counsel thus taking this Court to the observation and findings of the Election Tribunal contended that there has been misunderstanding by the trial court on the contingency as well as the provision in the matter of requirement for re-counting and calling for necessary documents in order to attempt the contingency in the requirement of re-counting. Mr.Mishra, learned Senior Counsel submitting through the written note of submission on behalf of the Election Petitioner draws the attention of the Court that there has been non-application of mind in deciding the application involved herein. Mr.Mishra, learned Senior Counsel also draws the attention of this Court to a plethora of decisions reported in (1978) 1 SCC 405, (1996) 4 SCC 53, (2006) 7 SCC 1, (2007) 17 SCC 115, (2015) 5 SCC 312 and through all these decisions contended the settled principle appears to be no doubt secrecy of ballots is permanent but purity of Election is more paramount than secrecy of ballots. Mr.Mishra, learned Senior Counsel also draws the attention of this Court through the judgment of Supreme Court dated 14.09.2022 in S.L.P.(C) No.7414 of 2021. It is at the same time Mr.Mishra, also referred to some other decisions to support his case as reported in (1994) Supp 2 SCC 619, (2009) 17 SCC 115, (2014) 5 SCC 312, 2014 (II) ILR- CUT- 888 and some judgment of this Court in the case of Rabinarayan Das Versus State of Odisha & ors. In W.P.(C) No.3735 of 2023 and judgment dated  22.02.2023 in the

case of Santosh Kumar Malik Versus Election Officer cum B.D.O., Cuttack & Ors. in W.P.(C) No. 32397 of 2022.

Mr.Mulia, learned counsel for the contesting Opposite Party No.1 taking this Court to the plea of the returned candidate through her objection in Annexure-9 and reading through the same attempted to submit the Court that the application involved in the impugned order per-se not maintainable and further legally also not entertainable for having no foundation to press for such contingency.

Taking here to the observations made and citations referred in the impugned order, Mr.Mulia, learned counsel attempted to convince the Court that the order impugned herein is justified and there requires no interference with such order. It is in the circumstance Mr.Mulia, learned counsel for Opposite Party No.1 prayed for dismissal of the Writ Petition thereby affirming the impugned order involved herein.

Considering the rival contentions of the Parties while also keeping in view the plea of malfunctioning or illegal adoption of counting process brought by the Election Petitioner read together with the evidence brought to support such plea particularly the specific allegation in wrong counting of the ballots while also keeping in view that the evidence from both the sides got completed, it is at this stage reading to the prayer involved in the Election Petition vide prayer No. B, C & D, this Court now examine as to whether there arose contingency in bringing the application vide Annexure-8? Reading through Annexure-8 at running page-132 of the brief, this Court finds, the Petition was having the following pleadings.

“2. That, it is submitted that election was conducted in an illegal manner as a result the petitioner has got 913 votes whereas the Opp.Party No.1 has got 915 votes. It is further submitted that in ward No.9, one of voter namely Dillip Kumar Mallick casted votes illegally for which the Presiding Officer of said booth on the allegation of Agents of petitioner rejected the said vote by mentioning on endorsement in the counter foil of ballot paper of said Dillip Kumar Mallick which was kept custody of Presiding Officer. But said Dillip Kumar Mallick had put his used ballot paper in the box. The petitioner submitted that said Dillip Kumar Mallick on the instance of Opp.Party No.1 casted the said invalid vote in favour of Opp.Party No.1 by putting the same in the ballot box for which petitioner apprehends that one of said Dillip Kumar Mallick has been gone in favour of Opp. Party No.1.

That, the petitioner submits that one Prafulla Kumar Dalai was the Counting Supervisor of Table No.10 where the counting of Palada Gram panchayat was taken up. He is one of the relation of Opp. Party No.1 and Opp. Party No.1 in paragraph-23 of her evidence admitted the fact by saying “Prafulla Kumar Dalai belongs to my village and he is my neighbor and called as uncle “Padashi Dada” She further deposed in the said paragraph by saying “the distance between my house to the house of Prafulla Kumar Dalai is near about half kilometer”. In order to support the Opp. Party No.1, the Election Officer intentionally appointed Prafulla Kumar Dalai as Counting Supervisor in Table No.10 and said Prafulla Kumar Dalai has not rejected 9 to 12 numbers of ballot papers of Opp. Party No.1 which ballot papers were ought to have rejected as voting seal have not properly given in the ballot papers but the same has been conducted in favour of opp. Party No.1. it is further case of petitioner that, in each Ward, some ballot papers without the mark of election symbol were illegally and intentionally counting in favour of the winning candidate Chinmayee Behera (Opp. Party No.1) which would have rejected by the Countering Supervisor.

That, it is further submitted that witness examined on behalf of Opp. Party No.2 fairly admitted in paragraph-23 of his evidence that he has no objection if this court directs to recount the votes of Palada Gram Panchayat.”

Pleading herein prima facie appears to be rested on the pleadings in the Election Petition and the evidence led by the Election Petitioner so far. This Court here finds the Petition vide Annexure-8 is considered through the impugned order with the following prayer:-

“It is therefore prayed that your Honour would be pleased to direct the Opp. Party No.2 for production of ballot box with used and non used ballot papers and result sheet of Sarapanch for Palada Gram Panchayat and recount the same ballot papers through this Hon’ble court for interest of justice.

And for this act of kindness the petitioner as in duty bound shall ever pray.”

Bare reading of the aforesaid application, there is no doubt that prayer herein is two folds:- (1) requesting production of ballot box with used and non-used ballot papers and result-sheet involving the Election for the post of Sarapanch of Palada Gram Panchayat. (2) The second limb of prayer appears to be a request involving re-counting of the ballot papers in the interest of justice. While keeping in mind that there is already an objection to such petition by the returned candidate vide Annexure-9, this Court on scrutiny of specific plea of the Election Petitioner in paragraph-7 to 15 read together with the evidence finds, there is no doubt that there exists contingency in ensuring availability of the ballot box with used and non-used ballot papers and result-sheet involving election for the post of Sarapanch of the Palada Gram Panchayat,

which to the mind of this Court, the Election Tribunal failed to appreciate this serious aspect.

The re-counting aspects for the settled position of law of course will be an outcome in the rendering of the judgment subject to however the Election Tribunal is convinced on existing of re-counting of ballots for if there is specific plea supported or corroborated through evidence of such party. Through Annexure-8 there is two faceted prayers. Looking to the specific pleading in so many paragraphs complied with evidence of the Election Petitioner at least so far there was no obstruction in ensuring production of ballot box with used and non-used ballot papers and result-sheet in the Election to the post of Sarapanch of Palada Gram Panchayat. True there is no situation to get into re-counting which is to take place in the process of judgment and only after entire evidence gets closed but there cannot be any obstruction in taking into custody the documents and ballot box indicated hereinabove.

This Court at this stage getting into the observations and findings of the Court finds, for the specific plea and evidence there is no reason for declining request for at least taking to the custody of the Election Tribunal, the ballot papers, result-sheet of the post of Sarapanch of Palada Gram Panchayat while keeping the re-counting aspect to be dealt in the process of judgment as the decision is required to be taken by the Election Tribunal only after closure of evidence and it gets convinced in the proceeding with the judgment that there is scope for re-counting. It is at this stage getting into the discussions, observations and the findings in the rejection of such application, this Court finds, there is no due exercise of legal mind and it appears, the Election Tribunal is much swayed away with the sounding words or observations in the decisions taken note therein rather than weighing properly the materials by way of pleadings as well as evidence so far. In the factual scenario and stage of proceeding none of these decisions applies to the case at hand and there has been wrong application of all these decisions to the case at hand.

In the circumstance, this Court finds the impugned order so far it relates to refusal on calling for documents and ballot box of different nature stated hereinabove, becomes bad but there is no infirmity in rejection of request for re-counting for the stage of proceeding presently. Thus, setting aside the impugned order so far it relates to request for calling for documents and ballot box mentioned therein and allowing the Petition vide Annexure-8 to the extent taking into the custody of ballot box with used and unused ballot papers, result-sheet involving in the election for the post of Sarapanch of Palada Gram Panchayat, this Court, however, reserves the decision in the said application in consonance with the request, vide paragraph-D of the prayer. The issue of re-counting since kept open to be decided at appropriate stage, this Court also observes, there shall be an independent view solely based on pleadings, objection and the evidence of both sides and without being influenced by any of the observations made in the impugned order.

The Writ Petition succeeds but in part. However, there is no order as to cost.

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