JUDGMENT
G.B. Patnaik, J.
1. The appellate order of the District Judge, Koraput in an election petition arising out of election of a Sarpanch of a Gram Panchayat is under challenge in this writ application. The short question that arises for consideration is, whether an Election Officer who having exercised his discretion had directed recounting of the votes for the second time could have stopped the said recounting on account of certain law and order problem having arisen and declared the result on the basis of the first recounting.
2. The short facts necessary for adjudicating the aforesaid dispute are that the polling for the post of Sarpanch of the Gram Panchayat took place on 26-5-1992 where the petitioner, opposite party No. 2 and opposite party No. 5 were the contesting candidates. In the initial counting it transpired that the opposite party No. 2 had polled the highest number of votes. Before declaration of the result, the petitioner filed an applicating for recounting on 27-5-1992. On that application, the Election Officer directed recounting to be held on 1-6-1992, After observing necessary formalities, recounting was held on 1-6-1992 and on recounting, the petitioner was found to have polled more number of votes than the opposite party No. 2. Opposite party No. 2 made an application on 5-6-1992 for a further recounting and the Election Officer exercised his discretion in favour of opposite party No. 2 and directed a further recounting on 14-6-1992. On 14-6-1992 when the recounting was made in respect of two booths, as the situation became uncontrollable the Election Officer decided not to continue with the recounting and ultimately declared the result on 15-6-1992 declaring the petitioner to be elected as Sarpanch having polled highest number of votes. Opposite party No. 2 then filed an election petition only on the ground that there was no valid service of notice on opposite party No. 5 when the first recounting was ordered and, therefore, the recounting was bad and also on the ground that the Election Officer having directed recounting for the second time and recounting having started on 14-5-1992, he had no further jurisdiction to stop the recounting and declare the result on the basis of previous recounting. Learned Munsif who is the Tribunal under the Act on consideration of the materials on record and the relevant provisions of the Orissa Gram Panchayats Election Rules, 1965 came to the conclusion that there had been valid service of notice so far as opposite party No. 2 is concerned since notice was served on his brother who happened to be the Election Agent and Polling Agent and had given a written undertaking on the date of first recounting that he represents his brother fully. So far as the second contention is concerned, learned Tribunal came to the conclusion that in view of second proviso to Rule 51 of the Orissa Gram Panchayat Election Rules, 1965 (for short, the ‘Rules’) conferring absolute power on the Ejection Officer not to direct recounting for more than once, there was no embargo on the said power of the Election Officer to stop recounting even though he had earlier directed recounting on 14-6-1992. With these conclusions, he having found no infirmity with the declaration of result made on 15-6-1992, dismissed the election petition.
3. Being aggrieved by the said order of the Election Tribunal, opposite party No. 2 moved in appeal to the District Judge. The District Judge being of the opinion that the Election Officer could not have riggled out of his earlier order directing a second recounting and had committed an error in stopping recounting after recounting was done for the second time in respect of two booths, interfered with the ultimate result declared by the Election Officer and directed a fresh recounting as was ordered by the Election Officer himself on 5-6-1992. It is this order of the appellate authority which is being challenged in this writ application.
4. Mr. Mohapatra appearing for the petitioner contended that in view of the second proviso to Rule 51 of the Rules, the Election Officer had full power and discretion not to direct a second recounting and therefore, even if he had earlier exercised his discretion in favour of opposite party No. 2 and directed a further recounting on 14-6-1992, he was not denuded of his discretion as per second proviso to the said Rule and, therefore, the learned District Judge committed error in interfering with the impugned decision of the Election Tribunal.
Mr. C. A. Rao, appearing for opposite party No. 2, on the other hand, contended that even though there cannot be any dispute with regard to discretion of the Election Officer so far as direction for second recounting is concerned, but once the Election Officer has directed a second recounting, he cannot have the further power under the second proviso to the aforesaid Rule to stop that recounting and declare the result on the basis of the first recounting and, therefore, the District Judge has rightly interfered with the decision of the Election Tribunal.
5. The correctness of the rival submissions therefore depends upon interpretation of the second proviso to Rule 51 of the Rules. For better appreciation of the point in issue, Rule 5) with two provisos are extracted herein below in extenso.
“51. Immediately after the close of counting, the Presiding Officer shall prepare separate bundles of all the papers, reports and unused ballot papers in respect of polling for the office of Sarpanch and polling for the membership of the Grama Panchayat and forward two packets duly sealed to the Election Officer for the local area. It will be open for the candidates or their Polling Agents to affix their seals to the aforesaid packets. On the date fixed for declaration the result of elections, to the office of Sarpanch, the Election Officer shall carefully total the election results received from different Presiding Officers in the presence of the candidates concerned, the polling agents as may be present and declare the results in Form No. 8-B after recording in a separate report the total number of votes polled by each contesting candidate. The candidates securing the largest number of votes shall be declared duly elected as the Sarpanch. In the case of an equality of votes, the result shall be decided by drawing lots and the candidate whose name is drawn first shall be declared elected.
Provided that any candidate or in his absence, his polling agent may before declaration of the result of election to the office of Sarpanch request the Election Officer to re-examine and recount the votes and upon such request, the Election Officer shall forthwith re-examine and recount the same. The Election Officer may also in his discretion recount the votes cither once or more than once in any case in which he is not satisfied as to the accuracy of any previous count:
Provided further that nothing in this provision shall make it obligatory on the Election Office to recount the same votes more than once.”
6. On a plain reading of the aforesaid two provisos we are of the considered opinion that before declaration of the result of the election to the post of Sarpanch if a request is made to the Election Officer to re-examine and recount the votes, then the Election Officer is duty-bound to re-examine and recount the same. After such first recounting, the Election Officer has discretion to direct recounting more than once in any case in which he is not satisfied as to the accuracy of any previous count. But that power is entirely discretionary and not obligatory and the Election Officer can be said to be well within his power in refusing a second recounting. But if he has exercised his discretion on the request of one party and directed a further recounting obviously on being satisfied that there has been some inaccuracy in any previous counting, he cannot fall back upon discretionary power under the second proviso to Rule 51 and stop the recounting halfway through. In other words, even though power of the Election Officer under the second proviso to the aforesaid Rule so far as second recounting is concerned is absolute but that power cannot be exercised once he has exercised discretion under the second part of the first proviso and direct a further recounting in the matter. In the aforesaid premises, we see no infirmity with the order of the appellate authority in interfering with the decision of the Election Tribunal and directing a recount of the votes by the Election Officer. We are told that the ballot papers are still lying with the Election Tribunal. The ballot papers may be remitted to the concerned Election Officer who shall forthwith complete the process of recounting and if ultimately any alteration to the result is necessary, that may be done. Needless to mention that the petitioner continues as the valid Sarpanch until and unless on recounting it is found that he has secured less number of votes than opposite party No. 2 and appropriate notification to that effect is passed by the Election Officer.
The writ application is accordingly disposed of. The interim order, if any, stands vacated. No costs.
D.M. Patnaik, J.
7. I agree
