L.N. Patnaik vs The State of Orissa and Others

R.N. Misra, J.—General election to the Purusottampur Notified Area Council in the district of Ganjam was duly notified in terms of Rule 22 of the Orissa Municipal and N.A.C. (Council Members) Election Rules, 1950, on 20th of January, 1975, and the date of poll was fixed to 24th of February, 1975. In the said election, Petitioner was a candidate from Ward No. I which was a double-member constituency with one seat reserved for a candidate belonging to the Scheduled Castes. There were four candidates in all - the Petitioner and opposite party No. 4 were candidates for the general seat and opposite party No. 3 and another were candidates belonging to the Scheduled Castes. In the notification of 20th of January, 1975, the place of polling for Ward No. I was the P.W.D. Inspection bungalow of Purusottampur on 23rd of February, 1975. The Election Officer suddenly shifted the venue from the Inspection Bungalow to the Jagannath Mahaprabhu Adappa Ghar, a place half a mile away from the Inspection Bungalow. As a result of this change of venue, several electors and particularly those who would have supported the Petitioner returned without voting. Two different ballot papers were used one for the scheduled Castes candidates and the other for the candidates for the general seat contrary to the requirements of the Election Rules. As a result of these infirmities, the result of election was vitiated and though Petitioner had best of chances for success, the ultimate polling result was as follows:

Y. Diwakar (opp. patty No. 4) ... 140

Goura Mahaka (opp. party No. 3) ... 135

Dambaru Naik (not impleaded) .... 115

Petitioner. .... 111

Opposite parties 3 and 4 were declared elected. Petitioner challenges the election of these two opposite parties on two counts:

(1) The change of venue contrary to law which materially affected the result of the election; and

(ii) The infraction of the Rules by using two ballot papers in place of one.

So far as the first ground of attack is concerned, we find no merit in it. In the Ward, the total number of voters was 295 as would appear from paragraph 5 of the counter affidavit of opposite party No. 2, the Election Officer. 259 votes had been cast. 36 votes were not cast. There is no material apart from the bare pleading to support the Petitioner''s contention that these 36 voters did come to the Inspection Bungalow which had earlier been notified as the polling booth and went back without casting their votes on account of the shifting of the place. The new venue of polling is also within the same Ward and there could be no difficulty for the voters who really intended to exercise their franchise to go to the changed venue of voting. There is equally no material that those who have not voted would have voted in favour of the Petitioner. As already indicated, opposite party No. 4 polled 140 while Petitioner polled 111. The difference is 29. We see no force in the first contention as a ground of attack against the election.

The second ground, however, seems to be a valid one. There is no dispute that two ballot papers were used - one containing the names of the two Scheduled Castes candidates and the other containing the names of Petitioner and opposite party No. 4. Use of two ballot papers is not in consonance with the requirement of Rule 38(3) of the Election Rules. It is unnecessary to deal with the contention at any length because, the self-same question was examined by a Bench of this Court in the case of P. Gangaya v. Election Officer, Bhanjanagar Notified Area Council and Ors. ILR 1973 Cutt 981, and this Court has held that use of two separate ballot papers for a double-member constituency with a reserved seat is not in consonance with the Election Rules. That decision has also been followed in the case of Netrananda Mohapatra v. Bijaya Kumar Sethi and Ors. 1973 (2) C.W.R. 1309. For the reasons indicated in the two reported decisions of this Court with which we are in agreement, we hold that the election is vitiated and has, therefore, to be vacated.

Accordingly, the election of opposite parties 3 and 4 as Councillors from Ward No. 1 is set aside and the opposite parties 1 and 2 are directed to hold a fresh election in accordance with law. We make no order for costs.

P.K. Mohanti, J.

I agree.