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1993 Supreme(Ori) 30
High Court Of Orissa
G. B. Pattanaik
NAKKA BHIKHYAMANA - Appellant
Versus
AUROVINDO DHALI - Respondent
ELECTION PETITION 1 Of 1992
Decided On : 03/30/1993
A.PATNAIK, B.MISHRA, B.P.ROY, G.P.MOHANTI, J.S.MISHRA, K.K.JENA, L.PANGARI, SHYAMANANDA MOHAPATRA, Y.DAS
Headnote:
ELECTION PETITION - MALPRACTICE - INSPECTION OF BALLOT PAPERS - RECOUNTING - MARGIN OF DIFFERENCE - BURDEN OF PROOF - ELECTION PETITION DISMISSED. The petitioner contested in the bye-election to 86-Malkanagiri (S. C.) Assembly Constituency along with respondents 1, 2 and 3. The vacancy having been caused on account of the death of Nakka Kanaya, the bye-election had been held on 8th of June, 1992. The petitioner contested the election on Janata Dal ticket with symbol 'chakra'; respondent No. 1 contested as the candidate of Bharatiya Janata Party with symbol "lotus"; respondent No. 2 contested as the candidate of Indian National Congress with symbol "hand" and respondent No. 3 contested as an Independent candidate with the symbol "bow and arrow". Respondent No. 1 was declared elected by the Returning Officer having polled a total number of votes of 27,156, whereas the petitioner had polled the second highest having polled 27,109; respondent No. 8 polled 13,588, whereas respondent No. 3 polled 827 votes. In this application filed under S. 101 of the Representation of the People Act, 1951, the petitioner has prayed for inspection and recounting of votes and for declaring the election of the returned candidate (respondent No. 1) to be void and to declare the petitioner to have been duly elected. Held, dismissing the petition: (1) The petitioner has utterly failed to establish the alleged irregularities/illegality in respect of which material particulars have been given in Schedules-A and B of the election petition. (2) The allegation of bias made in the election petition towards the Returning Officer has not at all been established. (3) Merely on the ground that the margin of difference has come down, the Court is unable to direct a recounting of the votes again. (4) The petitioner has not been able to make out a case for a direction for recounting.
Fact of the Case:
The petitioner contested in the bye-election to 86-Malkanagiri (S. C.) Assembly Constituency along with respondents 1, 2 and 3. The vacancy having been caused on account of the death of Nakka Kanaya, the bye-election had been held on 8th of June, 1992. The petitioner contested the election on Janata Dal ticket with symbol 'chakra'; respondent No. 1 contested as the candidate of Bharatiya Janata Party with symbol "lotus"; respondent No. 2 contested as the candidate of Indian National Congress with symbol "hand" and respondent No. 3 contested as an Independent candidate with the symbol "bow and arrow". Respondent No. 1 was declared elected by the Returning Officer having polled a total number of votes of 27,156, whereas the petitioner had polled the second highest having polled 27,109; respondent No. 8 polled 13,588, whereas respondent No. 3 polled 827 votes. In this application filed under S. 101 of the Representation of the People Act, 1951, the petitioner has prayed for inspection and recounting of votes and for declaring the election of the returned candidate (respondent No. 1) to be void and to declare the petitioner to have been duly elected.
Finding of the Court:
(1) The petitioner has utterly failed to establish the alleged irregularities/illegality in respect of which material particulars have been given in Schedules-A and B of the election petition. (2) The allegation of bias made in the election petition towards the Returning Officer has not at all been established. (3) Merely on the ground that the margin of difference has come down, the Court is unable to direct a recounting of the votes again. (4) The petitioner has not been able to make out a case for a direction for recounting.
Issues: 1. Has there been any improper rejection of valid votes of the petitioner and improper reception of invalid votes in favour of respondent No. 1? If so, has the result of the election so far as the returned candidate is concerned been materially affected ? 2. Has the petitioner been able to make out a case for recounting ? 3. Are the petitioner and her agents guilty of any corrupt practices as alleged in the recrimination petition under S. 123 of the Representation of the People Act ? 4. Can the petitioner be declared elected at all ?
Ratio Decidendi: 1. The petitioner has utterly failed to establish the alleged irregularities/illegality in respect of which material particulars have been given in Schedules-A and B of the election petition. 2. The allegation of bias made in the election petition towards the Returning Officer has not at all been established. 3. Merely on the ground that the margin of difference has come down, the Court is unable to direct a recounting of the votes again. 4. The petitioner has not been able to make out a case for a direction for recounting.
Final Decision: The election petition is dismissed. The petitioner is directed to pay costs of Rs. 2,000/- to respondent No. 1.
G. B. PATTANAIK, J.
( 1 ) THE petitioner has contested in the bye-election to 86-Malkanagiri (S. C.) Assembly Constituency along with respondents 1, 2 and 3. The vacancy having been caused on account of the death of Nakka Kanaya, the bye-election had been held on 8th of June, 1992. The petitioner contested the election on Janata Dal ticket with symbol 'chakra'; respondent No. 1 contested as the candidate of Bharatiya Janata Party with symbol "lotus"; respondent No. 2 contested as the candidate of Indian National Congress with symbol "hand" and respondent No. 3 contested as an Independent candidate with the symbol "bow and arrow". Respondent No. 1 was declared elected by the Returning Officer having polled a total number of votes of 27,156, whereas the petitioner had polled the second highest having polled 27,109; respondent No. 8 polled 13,588, whereas respondent No. 3 polled 827 votes. In this application filed under S. 101 of the Representation of the People Act, 1951, the petitioner has prayed for inspection and recounting of votes and for declaring the election of the returned candidate (respondent No. 1) to be void and to declare the petitioner to have been duly elected. A concise statement of material facts on which the petitioner relies has been given in the petition as follows :the Election Commission by a notification appointed 8-6-1992 as the date on which the poll was to be held in 86-Malkanagiri Assembly Constituency and as scheduled, the polling took place on that date. Shri Debendra Nath Gupta, Sub-Collector, was the Returning Officer and the Revenue Officer, Malkanagiri and Tahsildar, Malkanagiri and Block Development Officer, Kudumulugumma Block, had been appointed as the Assistant Returning Officer to assist the Returning Officer in the conduct of the election and counting of votes. Counting of votes took place on 10th of June, 1992, at Tahsil Office Building, Malkanagiri. Counting started at 2. 00 p. m. on 10-6-1992 and 16 counting agents had been appointed by the petitioner. Of those 16, 12 counting agents were on 12 different counting tables and Shri Joydeb Parida was present on the Returning Officer's table. There were 151 booths and counting of these booths was done in fifteen rounds. It was alleged in the petition that Joydeb Parida could notice that the Returning Officer was acting with a bias in favour of respondent No. 1. Such biased attitude was being exhibited because of the fact that in 1991, the Advocates of Malkanagiri Bar had demanded transfer of Shri Gupta for his alleged indecent behaviour and high handedness and the respondent No. 1 had led a procession with the counter demand that Shri Gupta should not be transferred and ultimately Shri. Gupta was not transferred from Malkanagiri Subdivision and on that score, was obliged to respondent No. 1. It was further alleged that even the subordinate officers including the counting staff knew about the attitude of the Returning Officer towards respondent No. 1 and this fact weighed with them at the time of sorting out the ballots of different booths in the respective counting tables. On account of such biased attitude of the counting staff towards respondent No. 1, even though the stamping had been made on the symbol of respondent No. 1, but not with the instrument supplied for the purpose and the petitioner's counting agents raised objection to the same, but instead of putting them in the bundle of doubtful ballot papers, the same were counted in favour of respondent No. 1. When the petitioner's counting agents told the counting supervisors to allow them to inspect the ballot papers and note down the number, they were replied that inspection of only doubtful ballot papers was permissible at the table of the Returning Officer. Notwithstanding the same, the counting agents could manage to note down the number of some such ballot papers which were counted in respect of respondent No. 1 even though those should have been kept in the bundle of doubtful ba
