JUDGMENT

A. S. NAIDU, J. — The order dated 12th February, 2008 passed by the learned Civil Judge (JD), Jajpur rejecting the petition of the petitioner for recounting the ballot papers in E.P. No.1 of 2007 is assailed in this Writ Petition.

2. Shorn of unnecessary details the facts relevant for appreciation of the inter se dispute are as follows :

In consonance with a Notification issued by the State Gov¬ernment of Orissa, election for the post of Sarpanch, Erbank Grama Panchayat in the district of Jajpur was held on 17th Febru¬ary, 2007. The petitioner as well as opposite parties 2 and 3 filed their respective nominations and contested the election. The petitioner polled 1390 votes whereas opposite party No.2 polled 1375 votes. Alleging certain illegalities in course of counting and rejection of some valid votes polled in favour of opposite party No.2 vis-a-vis counting of some invalid votes in favour of the petitioner, a petition was filed for recounting of votes. The said petition was allowed and on recounting, 28 votes which had been rejected were counted in favour of opposite party No.2, and 8 votes in favour of the petitioner. After recounting, opposite party No.2 was declared elected.

Alleging certain illegality in the process of recounting of votes, the petitioner had earlier approached this Court in WP(C) No.2217 of 2007. This Court observing that disputed questions of fact were involved in the matter declined to grant the relief sought by the petitioner. Thereafter the petitioner filed the aforesaid Election Petition before the Court below challenging the election of opposite party No.2 in consonance with the Orissa Grama Panchayat Act.

3. In different paragraphs of the Election Petition, the petitioner has specifically alleged the illegalities and irregu¬larities to have been committed in the process of counting of votes. Opposite party No.2 filed his objection. A copy of the Writ Petition filed earlier by the petitioner was also filed. In course of hearing of the Election Petition the petitioner filed a petition praying for verification and recounting of the used ballot papers. Citing instances of illegalities and irregularities committed during the counting, the petitioner prayed for booth-wise recounting of the used ballot papers. He specifically averred in that petition that the Election Officer had counted some rejected votes cast in some of the Wards in favour of opposite party No.2 and rejected some valid votes cast in favour of the petitioner.

The said petition was resisted by opposite party No.2 by filing objection. Relying on the averments made in different para¬graphs of the earlier Writ Petition opposite party No.2 contended that there was a lot of variation between the facts stated there¬in and the facts stated in the Election Petition which revealed that the petitioner was not sure about the actual facts and was trying a roving enquiry to be made.

4. The Court below after hearing the learned counsel for the parties and relying upon a decision of the Supreme Court in the case of Sadhu Singh v. Darshan Singh, reported in 2006 (II) OLR (SC) 569, held that the following factors were to be kept in mind while dealing with a petition for recounting of votes :-

“(i) Prima facie case must be established;

(ii) Material facts must be pleaded stating irregularities in counting of votes;

(iii) A roving and fishing enquiry shall not be directed by way of an order for recounting of votes;

(iv) An objection to the said effect should be raised; and

(v) Secrecy of ballot papers should be maintained.”

The Court below thereafter proceeded to compare the aver¬ments made in the earlier Writ Petition with that made in the Election Petition and came to the conclusion that there being a lot of variations the petitioner appeared to have taken evasive stand and that the conduct of the petitioner revealed that he wanted a roving and fishing enquiry through recounting of the used ballot papers and accordingly by the impugned order reje