Raisor Lakra vs Dayamani Bud

Heard.

Opposite party No. 2 in Election Misc. Case No. 1 of 2002 of the Court of Civil Judge (Senior Division), Sundargarh and Appellant in Election Appeal No. 2 of 2002 of the District Judge, Sundargarh has filed this writ petition challenging to the judgments delivered by the Courts below.

Admitted factual situation goes to indicate that for the Nuagaon Panchayat Samiti Election, both the Petitioner and opposite party No. 2 before the Court below were amongst the candidates. On recounting of the votes each of them was found to have secured 374 votes as the highest poller of votes. Thus in compliance to the provision in Rule 31 of the Orissa Panchayat Samiti Election Rules, 1991, lot was drawn and the opposite party No. 2 was declared elected. That notification declaring the opp. party No. 2 as elected member was challenged by the Petitioner on the ground that the lot was made in her absence i.e. behind her back and without proper intimation/notice to her. Learned Civil Judge found the aforesaid allegations to be correct and also took adverse inference against the conduct of the opposite party No. 1 i.e. Block Development Officer-cum-Election Officer for not appearing in Court and adducing relevant evidence about the manner in which he drew the lot. Learned Civil Judge, therefore in his judgment delivered on 1.11.2002 saddled cost with the B.D.O. and also declared casual vacancy to the post and directed for re-election by the Collector. As against that judgment the opposite party Nos. 2 and the Block Development Officer preferred Election Appeal Nos. 2 and 1 of 2002 respectively with the prayer to set aside the impugned judgment and exonerate the B.D.O. Both the appeals were heard analogously and as per the impugned judgment delivered on 20.2.2004, learned District Judge affirmed the order relating to voidability of the result declared in favour of opposite party No. 2 but accepted the plea and the prayer of the opp.party No. 1 i.e. the B.D.O. Accordingly he dismissed the appeal of the opposite party No. 2 and allowed the appeal of the B.D.O. As noted above, the said opp.party No. 2 has filed this writ petition challenging to the aforesaid decision.

When the fact situation as indicated above is not in dispute, we do not disturb the factual finding recorded by the Courts below that the provision under Rule 31(5) of the aforesaid Rules was not properly complied with in relation to drawing of the lots. For that reason the parties are to be relegated to the position before drawing of the lots instead of declaring a casual vacancy and directing a re-election. Therefore, to that extent, we find the direction of Courts below to be not in conformity with the factual position and the law thereof. Accordingly, while setting aside the direction for undertaking further process of election to fill up the posts of Panchayat Samiti Members, we direct the Election Officer to draw the lots in presence of the Petitioner and opp.party No. 2 and in that respect both of them are directed to appear before the Election Officer, i.e., the B.D.O., Kutra Panchayat Samiti on 12.09.2004 and the Election Officer shall draw the lots fairly and openly in presence of both the candidates. This being sufficient notice to both the parties, failure in attending the office by 10.30 a.m. or 12.9.2005 by any of the parties shall be regarded as his non-participation and thereafter the lots be drawn in the absence of such candidate.

The Writ Petition stands disposed of accordingly.

Both the parties undertake to produce certified copy of this order before the Block Development Officer-cum-Election Officer at least a week before 12.9.2005. Therefore, no requisites need be filed to communicate the same.

Urgent certified copy of this order be granted on proper application.