ORDER

1. LEAVE GRANTED.

2. ELECTIONS TO THE OFFICE OF SARPANCH OF KENDUAPADA PANCHAYAT IN THE STATE OF ORISSA WERE HELD ON 23-2-2002 UNDER THE PROVISIONS OF THE ORISSA GRAMA PANCHAYAT ACT. THE RESULT WAS DECLARED ON 28-2-2002. THE APPELLANT SECURED 1578 VOTES WHILE RESPONDENT 1 SECURED 1644 VOTES. ACCORDINGLY, RESPONDENT 1 WAS DECLARED ELECTED.

3. THE APPELLANT FILED AN ELECTION PETITION LAYING CHALLENGE TO THE ELECTION OF THE RESPONDENT AND SEEKING A DECLARATION THAT THE ELECTION OF THE RESPONDENT BE DECLARED NULL AND VOID AND THE APPELLANT BE DECLARED TO HAVE BEEN ELECTED. ONE OF THE PRAYERS MADE IN THE ELECTION PETITION WAS SEEKING RECOUNT OF THE VOTES CAST AT THE ELECTION. IT WAS ALLEGED IN THE ELECTION PETITION, INTER ALIA:

"8. THAT AT THE TIME OF COUNTING THE SUPPORTERS OF OP 1 AT THE INSTANCE OF OP 1 OVERPOWERED POLLING STAFF INCLUDING PRESIDING OFFICER IN ALL THE BOOTHS, DOMINATED ENTIRE SCENARIO OF COUNTING AND MOBILISED THE PRESIDING AND POLLING OFFICERS TO PLAY INTO THEIR HANDS, WHIMS AND CAPRICES. ABOUT TWO HUNDRED VOTES WHICH WOULD HAVE BEEN REJECTED WERE COUNTED IN FAVOUR OF OP 1 AND ABOUT TWO HUNDRED VOTES WHICH WOULD HAVE BEEN COUNTED IN FAVOUR OF THE PETITIONER WERE REJECTED. THE POLLING AGENTS OF THE PETITIONER IN ALL THE BOOTHS WERE MANHANDLED AND ASSAULTED BY THE SUPPORTERS OF OP 1 WHEN THEY RAISED VOICE OF PROTEST.

9. THAT THE PETITIONER FILED PETITION BEFORE THE ELECTION OFFICER BEFORE OFFICIAL ANNOUNCEMENT OF RESULT FOR RE-EXAMINING AND RE-COUNTING OF VOTES I.E. BALLOTS CAST IN RESPECT OF ELECTION FOR THE POST OF SARPANCH, BUT THE ELECTION OFFICER TURNED DOWN THE APPEAL OF THE PETITIONER AND DID NOT REEXAMINE AND RE-COUNT THE VOTES."

4. NOT ONLY THERE WAS A PRAYER FOR RE-COUNT OF VOTES CONTAINED IN THE ELECTION PETITION, THE APPELLANT HAD ALSO FILED AN APPLICATION PRAYING FOR RECOUNT OF THE VOTES. ON 7-9-2002, THE ELECTION TRIBUNAL OBSERVED THAT THE PRAYER FOR RE-COUNT MADE BY THE APPELLANT WAS PREMATURE AND THE SAME SHOULD BE TAKEN UP FOR CONSIDERATION AFTER THE EVIDENCE WAS RECORDED.

5. AFTER THE EVIDENCE HAD BEEN RECORDED, ON 16-9-2002, THE APPELLANT ONCE AGAIN PRESSED FOR HIS PRAYER FOR RE-COUNT BEING TAKEN UP FOR CONSIDERATION AND ALLOWED. THE ELECTION TRIBUNAL ALLOWED THE PRAYER FORMING AN OPINION THAT ALTHOUGH THE APPELLANT HAD FAILED TO ADDUCE EVIDENCE REGARDING EXACT NUMBER OF VOTES IMPROPERLY REJECTED AND/OR IMPROPERLY ACCEPTED, YET A CASE FOR EXAMINATION OF THE BALLOT PAPERS AND HOLDING A RECOUNT WAS MADE OUT. THE ELECTION TRIBUNAL DIRECTED THE RECORDS OF THE BALLOTS TO BE SUMMONED AND BEING SUBJECTED TO RE-COUNT IN THE PRESENCE OF THE PARTIES.

6. FEELING AGGRIEVED BY THE ORDER DATED 16-9-2002, THE RESPONDENT PREFERRED A REVISION IN THE COURT OF ADDITIONAL DISTRICT JUDGE. THE LEARNED ADDITIONAL DISTRICT JUDGE UPHELD THE ORDER OF THE ELECTION TRIBUNAL AND DISMISSED THE REVISION. FEELING AGGRIEVED THEREBY, THE RESPONDENT PREFERRED A PETITION IN THE HIGH COURT UNDER ARTICLE 227 OF THE CONSTITUTION. THE HIGH COURT ALLOWED THE RESPONDENTS PETITION AND SET ASIDE THE ORDER OF THE ELECTION TRIBUNAL DIRECTING RE-COUNT OF VOTES. DURING THE COURSE OF ITS ORDER, THE HIGH COURT HAS OBSERVED THAT THE JURISDICTION TO PERMIT RE-COUNT OF VOTES WAS EXERCISED CONTRARY TO THE WELL-SETTLED PARAMETERS LAID DOWN FOR EXERCISE OF SUCH A JURISDICTION. THE HIGH COURT ALSO HELD THAT ONE OF THE ISSUES PENDING FOR CONSIDERATION OF THE ELECTION TRIBUNAL WAS AS TO WHETHER THE ELECTION PETITION WAS BARRED BY TIME AND BEFORE DECIDING THAT ISSUE AN ORDER FOR RECOUNT SHOULD NOT HAVE BEEN MADE.

7. FEELING AGGRIEVED BY THE ORDER OF THE HIGH COURT, THE APPELLANT HAS FILED THIS APPEAL BY SPECIAL LEAVE.

8. HAVING HEARD THE LEARNED COUNSEL FOR THE PARTIES, WE ARE SATISFIED THAT THE ORDER OF THE HIGH COURT HAS TO BE SET ASIDE, INASMUCH AS IN THE FACTS AND CIRCUMSTANCES OF THIS CASE THE HIGH COURT OUGHT NOT TO HAVE EXERCISED ITS SUPERVISORY JURISDICTION FOR SETTING ASIDE THE ORDER OF THE ELECTION TRIBUNAL WHICH WAS UPHELD IN REVISION.