JUDGMENT
A.S. Naidu, J.
1. The order dated 2.8.2007 (Annexure-4) passed by the learned Civil Judge (SD), Kamakhyanagar in Election Misc. Case No. 25 of 2007 is assailed in this Writ Petition by the opposite party No. 1 in the said Election Misc. Case.
2. The election for the post of Panchayat Samiti Member of Kanpura Panchayat Samiti was held on 17th February, 2007 in which three candidates had contested. After counting of votes it was found that one Usharani Mahalik and the present Writ petitioner Nibedita Rout had secured equal number of votes, i.e. 1119 each whereas present opposite party No. 1 (petitioner before the Court below) had secured 1116 votes. By lottery, the present petitioner was declared elected. Thereafter a petition was filed for recounting of votes. On recounting it was found that there was a tie between the present petitioner and Mitarani present opposite party No. 1, inasmuch as both of them had secured 1117 votes each and Usharani had secured 1114 votes. Consequently again lottery was held and the present petitioner Nibedita was declared elected. Being aggrieved by the said election,-Mitarani, present opposite party No. 1, has filed the aforesaid Election Misc. Case before the Court below.
3. In course of hearing of the Election Misc. Case, after examination of all the witnesses, a petition was filed by Mitarani praying to call for the used ballot papers and other Levant documents and recount the votes secured by the candidates in the election. The said petition was resisted by Nibedita, the present petitioner. The Court below after going through the evidence recorded and finding that all the mandatory requirements for directing recount of votes were satisfied and further relying upon the ratio of the decision of the Supreme Court in the case of Sadhu Singh v. Darshan Singh and Anr. reported in 2006 (I) CLR (SC) 569, held that prima facie a case for recount of votes was made out and for effecacious and effectual adjudication of the dispute it was necessary to recount the votes. Consequently by the impugned order the Court below allowed the petition filed by petitioner before the said Court. Being aggrieved the opposite party No. 1 before the Court below approached this Court.
4. According to Mr. Misra, the learned Counsel for the present petitioner, without affording opportunity to the petitioner to file her objection to the aforesaid petition filed by the present opposite party No. 1 and violating the principles of natural justice, the Court below has allowed the same. He further submitted that the main prayer in the case before the Court below being to recount the used ballot papers, the same prayer ought not to have been allowed as an interim measure. He then submitted that if the impugned order is allowed to remain, nothing more will be there to be decided in the case.
The aforesaid submissions Mr. Misra are repudiated by Mr. Das, learned Counsel for the present opposite party No. 1. According to him the petition for calling for the used ballot papers and for recounting the same was filed on 17.7.2007. That petition was posted to 23.7.2007. Thereafter the matter was heard and order was passed on 2nd of August, 2007. Thus the petitioner had adequate opportunity to file objection, if any. Having not availed that opportunity, the petitioner is estopped to raise a grievance before this Court that no opportunity had been granted to her by the Court below to file her objection.
5. After verifying the records this Court finds that in fact the petitioner had enough opportunity to file her objection to the petition filed by opposite party No. 1 but for reasons best known to her she did not avail the said opportunity. Thus this Court finds that the contention of the learned Counsel for the petitioner in that regard is not sustainable.
6. The Orissa Panchayat Samiti Act specifically provides the relief that may be claimed by a petitioner in an election petition. It provides that a petitioner may, in addition to claiming declaration that the election of all or any of the returned candidates is void, may claim a further declaration that he himself or any other has been duly elected. It appears that in the prayer made in the Election Misc. Case petition, apart from seeking the aforesaid relief, present opposite party No. 1 prayed for recount of the votes cast in her favour and the present petitioner as soon as possible. Law is well settled that unless there are averments and prayer in the election petition, such relief cannot be granted. The submission of Mr. Misra that an order for recount of votes being the final relief sought, that could not be passed as an interim measure while the main case is subjudice and that recount of votes can be done after final order is passed in the case appears to be misconceived. As stated earlier, only on the basis of result of recount the final order has to be passed.
7. So far as direction for recount of votes is concerned, law is well settled that the following factors are to be. considered by a Court before issuing such direction:
(1) The Court must be satisfied that a prima facie case is established;
(2) The material facts must have been pleaded stating the irregularities in counting of votes;
(3) A roving and fishing enquiry should not be directed by way of an order to recount the votes;
(4) An opportunity should be given to file objection; and last but not the least;
(5) Secrecy of ballot papers should be maintained.
(See Gursewak Singh v. Avtar Singh and Ors. ; M. Chinnaswamy v. K.C. Palanisamy ; Chandrika Prasad Yadav v. State of Bihar and Tanaji Ramachandra Nimhan v. Swati Vinayak Nimhan and Ors. all of which have been taken note of in Sadhu Singh case supra).
8. Considering the facts and circumstances of the present case in the touch-stone of the aforesaid decisions, this Court finds that in fact enough pleadings have been made in the Election Misc. Case petition and that only after closure of oral evidence, the petition for recount of ballot papers was filed. That apart, facts reveal that the petitioner on counting of votes was found to have secured 1119 votes, the same number of votes having also been secured by Usharani Mahalik who was another candidate; and on recount she was found to have secured 1117 votes which was equal to the votes secured by Mitarani, present opposite party No. 1. She had been in fact elected by lottery.
9. As would be evident, the votes secured by the petitioner and the votes secured by opposite parties not only varied once, but twice. Enough pleadings has been made in the Election Misc. Case petition and oral evidence has been adduced to substantiate that some valid votes had been illegally rejected during the process of counting. The Court below after scrutinizing the entire evidence, both oral and documentary, and perusing the pleadings, being prima facie satisfied that recount of used ballot papers was necessary for an effectual adjudication of the case, allowed the prayer for recount. After going through the reasonings given in the impugned order, this Court finds that the Court below has not committed any error apparent on the face of records. The said reasonings are neither absurd, nor do they suffer from any infirmity. This Court is therefore not inclined to interfere with the impugned order exercising Certiorari jurisdiction.
10. This Court accordingly dismisses the Writ Petition, but however at the same time directs the Court below to dispose of the Election Misc. Case as expeditiously as possible in consonance with law.