Recounting of votes is permissible when a prima facie case is established, supported by clear allegations of irregularities and corroborating evidence, despite the need for maintaining ballot secrecy.

JUDGMENT :

R.K. PATTANAIK, J.

1. Instant writ petition is filed by the petitioner assailing the impugned order dated 2^nd January, 2025 as at Annexure-1 passed in connection with Election Appeal No.01 of 2024 by the learned District Judge, Kendrapara, whereby, the decision dated 12^th September, 2023 in Election Misc. Case No.11 of 2022 of learned Election Tribunal-cum-Civil Judge (Junior Division), Kendrapara disallowing recounting of votes at the behest of opposite party No.2 was set aside on the grounds inter alia that such inspection/recount of votes could not have been directed in the facts and circumstances of the case and for being not in accordance with law.

2. In fact, opposite party No.2 questioned the election of the petitioner on various grounds including rejection of valid votes. The details of the plea advanced by opposite party No.2 have been pleaded in the election petition, a copy of which is at Annexure-2. The election of the petitioner has been challenged seeking a declaration in favour of opposite party No.2 as duly elected Sarpanch of Mangalpur Gram Panchayat under Mahakalapada Panchayat Samiti with a direction to the Election Officer to cause production of the votes polled during the election in respect of the identified booths along with other relevant papers for the purpose of recounting/verification/inspection of the same by the learned Civil Judge (Junior Division), Kendrapara. After the evidence was received and when the proceeding was at the stage of argument, opposite party No.2 moved an application on 17^th August, 2023 seeking inspection/recount of votes while reiterating the pleading on record besides the material evidence in support thereof. The petitioner challenged such a move and filed an objection dated 29^th August, 2023 and considering the same, the learned Civil Judge (Junior Division), Kendrapara declined it. As against the rejection order, opposite party No.2 approached this Court in W.P.(C) No.36447 of 2023 disposed of on 23^rd September, 2024 granting liberty to challenge the decision on recounting of votes by filing an appeal. The learned court below entertained the appeal and as earlier stated, allowed the same and set aside the decision dated 12^th September, 2023 in Election Misc. Case No.11 of 2022 and directed inspection/recount of votes in respect of eight booths to be held on the date fixed in presence of both the sides and also an official deputed by the Collector-cum-District Election Officer, Kendrapara and thereafter, to proceed to dispose of the election proceeding in accordance with law. Being aggrieved of, the petitioner has filed the writ petition challenging the impugned decision dated 2^nd January, 2025 of the learned District Judge, Kendrapara vide Annexure-1.

3. The main grounds of challenge vi vis-à-vis the impugned decision of learned court below are (i) that there is no evidence seeking inspection/recount of votes, hence, therefore, it could not have been allowed;(ii) bald claim of opposite party No.2 that votes were illegally counted cannot justify recounting of votes polled; (iii) that is no evidence on record to suggest that the Election Officer acted illegally or was unduly influenced by the returned candidate; (iv) the pleading and evidence before the learned court below should have influenced the decision whether the votes are to be recounted as has been demanded by the other side; and (v) the learned court below abruptly arrived at a conclusion that the election petitioner has a prima facie case for recount when the materials on record were found to be otherwise.

4. Heard Mr. Bose, learned counsel for the petitioner, Mr. Sahoo, learned ASC for the State a