ORDER
P.K. Misra, J.
1. The petitioner was declared elected as Sarpanch of Badakumbilo Grama Panchayat by margin of four votes over present opposite party No. 1. A petition challenging the election was filed by opposite party No. 1. In the said petition it was, inter alia, alleged that many dead persons had voted in the election and the result of the election had been materially affected by false votes being cast in the names of dead persons. The aforesaid allegation was denied by the present petitioner.
The trial Court framed several issues including. Issue No. 9 to the effect, “whether votes have been cast in the names of dead persons or not?”. The trial Court had also framed another issue being Issue No. 5 to the following effect:–
“Has there been violation of O.G.P. Election Rules, 1965?”
While deciding about Issues Nos. 3 and 9 along with Issue No. 2, the trial Court found that fake votes had been cast in the names of ten dead persons. Ultimately, the trial Court concluded as follows :–
“It is already discussed in Issue No. 9 that votes have been cast in the names of dead persons. So, there has been a blatant violation of the rule. This has, no doubt, materially affected the result of the election as mentioned in Section 39(2) of the O.G.P. Act. Thus it held that there is violation of the Panchayat Election Rules.”
Under Issue No. 9 (to what reliefs the petitioner is entitled?) the trial Court held:–
“……It is already held that Rule 39 of the Orissa Grama Panchayat Election Rule has been violated and due to that, votes have been cast in the names of dead persons. This has undoubtedly materially affected the result of the election. There is no definite pleading or proof as to in whose favour the votes went which were cast relating to those dead persons. So it is difficult to say whether petitioner would with or O.P. No. 1 would lose the case. But the fact goes that there has been illegality in the vote which has materially affected the result of the Election. Hence, the result of the Election is bound to be declared void. …..”
Ultimately, the trial Court while setting aside the election of the present petitioner directed that fresh election should be held.
2. Against the aforesaid decision, the present petitioner filed appeal before the District Judge, Cuttack. The District Judge confirmed the finding that votes had been cast in the names of dead persons and ultimately dismissed the appeal. The aforesaid decisions of the Courts below are being challenged in the present writ application.
3. Even though the learned counsel appearing for the petitioner sought to challenge the finding of the Courts below to the effect that votes had been cast in the names of dead persons, keeping in view the limited scope for interference in a writ of certiorari, I hardly see any scope for coming to any different conclusion. Both the Courts below have referred to the relevant evidence on record and even though a different finding could have been arrived at by another Court, that is not a ground to come to a different conclusion while deciding a matter under Articles 226 and 227 of the Constitution of India. Therefore, I proceed on the footing that ten votes had been cast in the names of dead persons.
4. Section 39(1)(d) and (e) and Section 39(2) of the Orissa Grama Panchayat Act (hereinafter referred to as the “Act”) being relevant are extracted hereunder :–
“39. Grounds for declaring election void.–
(1) The Munsif shall declare the election of a returned candidate void, if he is of the opinion —
….. ….. ….. …..
(d) that such perosn was declared to be elected by reason of the improper rejection or admission of one or more votes or for any other reason was not duly elected by a majority of lawful votes; or
(e) that there has been any non-compliance with or breach of any of the provisions of this Act or of the rules made, thereunder :
Provided that………..
(2) The election shall not be declared void merely on the ground of any mistake in the forms required thereby or of any error, irregularity or informality on the part of the officer or officers charged with carrying out the provisions of this Act or of any rules made thereunder unless such mistake, error, irregularity or informality has materially affected the result of the election.”
5. In the present case, even though the present opposite party No. 1 had prayed that he should be declared elected, such prayer had been refused by the trial Court and there has not been any further appeal by present opposite party No. 1. The trial Court apparently found that there had been non-compliance with the provisions of the rules made under the Act which had materially affected the result of the election and on the basis of such conclusion the election of the petitioner had been declared void. The finding of the trial Court which has been quoted earlier clearly indicates that there was no definite pleading nor proof as to in whose favour the votes of the dead persons had been cast. It is worthwile to indicate that this finding of the trial Court has not been
reversed by the appellate Court. Thus, the conclusion is irresistible that there is no pleading nor any evidence to indicate that the ten votes which had been cast by impersonators, even though the real voters were dead, had been , in fact, cast in favour of the present petitioner. In the absence of any such pleading or proof, it is difficult, nay impossible to conclude that the result of the election had been materially affected. If all the ten voters had been cast in favour of present opposite party No. 1 and if such invalid votes would have been excluded, the margin of win of the present petitioner would have been four plus ten. On the other hand, if out of the ten votes, at least four votes were cast in favour of opposite party No. 1 and the petitioner had got the balance six votes, the margin of win of the petitioner after excluding such invalid votes would have been two. Therefore, unless it is proved that the difference in the number of votes received by the petitioner and opposite party No. 1 so far as the tainted ten votes are concerned is more than the ultimate margin of victory, it cannot be assumed that the result of the election has been materially affected. Section 39(2) of the Act makes it clear that even if there has been any irregularity on the part of the Election Officer charged with carrying out the provisions of the Act or any rules made, thereunder, unless such mistake, error, irregularity or informality had materially affected the result of the election, such election should not be declared void merely on the ground of any such mistake or irregularity. Since the trial Court had concluded that there was no pleading nor proof to come to any conclusion as to in which manner the ten tainted votes had been cast, the ultimate conclusion of the trial Court which appears to have been mechanically confirmed by the appellate Court that the result of the election had been materially affected, cannot be sustained.
6. For the aforesaid reasons, the writ application is allowed and the orders of the Courts below under Annexures 1 and 2 are quashed. There will be no order as to costs.