ORDER
1. Heard Mr. S. K. Dash, learned counsel for the petitioner and Mr. P. K. Routray, learned counsel for opposite party No.1
2. This writ petition has been filed by petitioner challenging to the judgment delivered on 05.07.2005 by learned District Judge, Cuttack in Election Appeal No.4 of 2005.
3. Opposite Party No.1 filed Panchayat Samiti Election Case No.1 of 2002 in the Court of Civil Judge (Sr. Division), Kendrapara. Petitioner in this case and the opposite party No.2 respectively appeared as opposite party Nos.1 and 2 in that Election Case. They are described as such in this order. The election petitioner alleged that on the first counting he was declared to be elected and after that result was declared, on the request of the opposite, party No.1 (writ petitioner) recounting was done and the said opposite party No.1 was declared elected. Accordingly a notification was published notifying that opposite party No.1 was duly elected as Panchayat Samiti Member of Rangani Gram Panchayat of Rajnagar Panchayat Samiti. Election petitioner also claimed for declaring him as the elected candidate having secured the highest valid votes. After his appearance, opposite party No.1 filed an application under Section 44 (I) of the Orissa Panchayat Samiti Act, 1959 (in short ‘the Act’) for recrimination. Issues were settled, evidence was accepted, both oral and documentary, from the election petitioner and the opposite party No.1 and on appreciation of the same learned Civil Judge decided the case in favour of the election petitioner on the ground that in view of the statutory provision in Rule 31(7) of the Orissa Panchayat Samiti Election Rules, 1991 (in short ‘the Rules’) there could not have been recounting after declaration of result. He also .counted the ballots and concurring with the first counting declared that election petitioner was duly elected. Opposite party No.1 challenged that judgment of the learned Civil Judge in Election Appeal No.4 of 2005 in the Court of the District Judge, Cuttack. Learned District Judge, as per the impugned judgment, concurred with the aforesaid finding and dismissed the appeal. We note that in paragraph-4 of the impugned judgment learned District Judge took note of the contention raised by the appellant and in paragraph-5 of the impugned judgment he noted the admitted factual aspect involved in the case.
4. In course of submission, learned counsel for the petitioner argues that the crux of the matter before the Courts below was as to whether a recounting was permissible under Rule 31(7) of the Rules and in that respect both the Courts below have relied on a pre-amended provision which was not existing by the date of election or consideration of the election petition. Learned counsel for the election petitioner virtually has no reply to that contention though he argued en merit of the case otherwise.
5. On perusa of the impugned judgment, we find that Sub-Rule (7) of Rule 31 has been quoted by learned District Judge in the following manner :-
Notwithstanding anything contained in Sub-rules (3), (4) and 5 any candidate or in his absence, his Polling Agent may, before declaration of the result of election of the member of Samiti, request the Election Officer in writing to recount the votes and upon such request the Election Officer shall forthwith recount the votes.
(underline is mine).
We see from the Government Publication of the Act and Orissa Panchayat Samiti Act and the Rules vide S.R.O. No. 870 of 1996 Orissa Gazette Ext. No.1205 dated 18.11.1996, that Sub-rule (7) of Rule 31 was substituted by the following Sub-rule.
(7) After declaration under Sub-rule (4) has been made, a candidate or, in his absence, his polling agent may apply in writing to the Election Officer to recount the votes either wholly or in part, stating the grounds for such recounting.
Once that be so, we find that learned District Judge, on appreciation of a non-existing provision of law, decided the crucial issue in a wrong manner. Therefore, it is proper that the appellate Court should again consider the matter in the context of the provision of law which exist vis-a-vis the evidence on record. We do so because we do not think it proper for ourselves to assume the jurisdiction of the appellate authority to reassess the evidence relating to recounting of votes while in seisin of the matter under Article 227 of the Constitution of India. In other words, we have expressed no opinion on the factual aspect and desire that the job be done in accordance with law by learned District Judge after due reference to the correct position of law.
6. In course of the submission, learned counsel for the election petitioner (opposite party No.1 in the writ petition) expresses his anxiety for delay because of several rounds of litigations carried by the opposite party No. 1 to different Courts including this Court in the context of the aforesaid election dispute. We, therefore, direct learned District Judge to hear and dispose of the appeal within period of four weeks from the date of receipt of a copy of this, order. Either of the parties may produce certified copy of this order in the Court below for due intimation of learned District Judge. To save the proceeding from further delay in the matter of appearance of the parties, we direct both the parties to appear in the Court of learned District Judge, Cuttack on 12.01.2006 and default in appearance on that date by any of the parties be treated as such.
At the risk of repetition, we again state that learned District Judge shall bear in mind that we have expressed no opinion on the merit of the case and he is to decide the same strictly in accordance with law.
The impugned judgment is accordingly set aside and the writ petition is allowed. Parties are directed to bear their respective cost of litigation in this forum.
In view of the aforesaid order for production of certified copy of this order by either of the parties before learned District Judge, we do not direct to file the requisites to communicate the writ to the Court below.