Sridhar Behera vs Smt. Sebati Behera And Another

Sl. No,Name,"Sl. No. in Booth

No.7",Sl. No. in Booth No.6,House  No.

1.,"Prasanta Kumar Behera, S/O Judhistira

Behera",196,209,13

2.,"Manasi Behera, W/o Deepak Behera",197,210,13

3.,"Chandana Behera, W/o Purusottam

Behera",199,211,13

4.,"Purusottam Behera, S/o Krushna Behera",200,212,13

5.,". Shantilata Behera, W/o Judhistira Behera",201,213,13

6.,"Akhaji Saha, W/o Sagara Saha",203,217,29

7.,"Jula Saha, W/o Sadhu Saha",204,218,29

8.,"Babuli Kumar Saha, S/o Sagar Saha",205,219,29

9.,"Sudhansu Sekhar Sethi, S/o Ballabha Sethi",352,223,22

10.,"Biswaranjan Patra, S/o Babaji Patra",377,224,15

that Smt. Nirupama Jena and Smt. Rita Jena are one and same person.,,,,

That, two voters of village Brahmanikela namely, Pitei Jena, W/o Ananta Jena and Ananda Jena, S/o Madhu Jena have cast their vote in favour of the opposite",,,,

party no.1 in booth no.2 and they have again cast their vote in village-Padakana, ward no.12, booth no.12 of Padanapada G.P. in the district of Bhrdrak. One Smt.",,,,

Anita Sethi, W/o Anirudha Sethi, whose name finds place in the voters list at serial no.62, house no.12 of ward no.10 of village Balabhadrapur has cast her vote in",,,,

favour of the opposite party no.1 and she has also cast her vote in favour of another candidate in Rajendrapur G.P., Village- Saro, Ward No.11, in the district of",,,,

Bhadrak.,,,,

That, one Rabindra Sethi, S/o Dhoi Sethi and another Kanchan Sethi, W/o Rabindra Sethi have cast their vote in favour of the opposite party no.1 in booth",,,,

number 10 having house no.21 and serial no.119 and 117 respectively. They have also cast their votes in Bhagabanpur G.P., Ward No.7, Sl. No.338, House No.59, S.L.",,,,

No.339, House No.59 in district- Bhadrak respectively.â€​",,,,

It is seen that paragraph 7 of the election petition does not disclose any specific case of irregularity. Paragraph 9 speaks about rejection of votes,,,,

because the voters put their thumb impression instead of putting the seal and though one vote each in booth nos.8 and 11, were cast in favour of the",,,,

election petitioner, the same were rejected on the ground that the voter had also put his seal in respect of another symbol for which no candidate is",,,,

contesting. So far as this paragraph is concerned, there is no need to re-count of the ballot papers. It is well settled principles of law that ballot papers",,,,

have to be stamped with the seal and not with the thump impression as s result of which the thump impression given in one ballot paper has to be,,,,

discarded. Then, coming to the paragraph 10, it is seen that the election petitioner has enumerated the names of ten persons who have cast their votes",,,,

in two different booths i.e. booth nos.6 and 7. This aspect cannot be determined by re-counting the ballot papers. This aspect can only be proved by,,,,

leading evidence.,,,,

Coming to the paragraph 11 of the election petition, it is alleged by the election petitioner that one Nirupama Jena has cast her vote twice",,,,

describing herself as Nirupama Jena, D/o Basudeva Jena of village Bramhanikala and as Rita Jena, W/o Nirakar Jena. This aspect could also not be",,,,

determined by re-counting the ballot papers. This aspect has to be considered by leading evidence.,,,,

In paragraph 12 of the election petition, it was pleaded by the election petitioner that two voters of village Brahmanikela, namely, Pitel Jena, W/o",,,,

Ananta Jena and Ananda Jena, S/o Madhu Jena have cast their votes in favour of the opposite party no.1 in booth no.2 and they have again cast their",,,,

votes in village Padakana, ward no.12, booth no.12 of Padanapada G.P. in the district of Bhadrak. This aspect could also not be considered and",,,,

determined by the election tribunal by re-counting of the ballot papers. All these pleadings can be established by leading cogent evidence to establish,,,,

the facts.,,,,

So, we are of the opinion that learned Civil Judge (Junior Division), Anandapur has erred in allowing the re-counting of",,,,

the ballot papers holding that the question to be determined is who has got more votes? He has also taken into consideration of the paragraph 15 of the,,,,

election petition, which does not show any specific pleading regarding any corrupt practice.",,,,

In course of argument, Dr. A. Mohapatra, learned Senior Advocate appearing for the respondent no.1 submits that learned Civil Judge (Junior",,,,

Division), Anandapur taking into consideration of the fact that at the time of polling in booth no.7, though 351 number of ballot papers were used, but at",,,,

the time of recounting on 23.02.2017, 348 number of ballot papers were found from the ballot box, which itself shows that there is some irregularities.",,,,

However, this plea has never been raised in the election petition and that can only be asked for a recount Micawberishly looking for numerical good",,,,

fortune or windfall of chance discovery of illegal rejection or reception of ballots, as observed in the case of Chanda Singh (supra).",,,,

In that view of the matter, we are inclined to allow this W.A. Accordingly, the order dated 28.01.2019 passed by the learned Single Judge in W.P.",,,,

(C) No.6886 of 2018 and the order dated 18.04.018 passed by the learned Civil Judge (Junior Division), Anandapur in Election Misc. Case No.1 of",,,,

2017 are set aside.,,,,

The W.A. is disposed of, accordingly. There shall be no order as to costs.",,,,

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

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