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1. The instant writ application has been filed against the judgments and orders dated 13.5.2005 and 7.2.2006 passed by the learned Civil Judge (Senior Division), Kendrapara in Election Misc. Case No. 1 of 2002 and the District Judge, Cuttack in Election Appeal No. 4 of 2005 respectively

2. We have heard Mr. S.K. Das, learned counsel for the petitioner and Mr. P. K. Routray, learned counsel for the opposite party No. 1 No one has put in appearance on behalf of opposite party No. 2.

3. The brief facts of the case are that the election in respect of the post of member of Panchayat Samiti of Rangani Grama Panchayat, Dist. Kendrapara was held on 19.2.2002 under the Orissa Panchayat Samiti Act, 1959 (hereinafter referred to as 'the Act, 1959') in which the petitioner as well as opposite parties were candidates. After the polling was over, the Presiding Officer of each booth took up the scrutiny of the ballot papers and thereafter counted the ballots in their respective booths in the presence of the candidates through their polling agents. There were 20 booths in all. The Presiding Officers prepared their respective reports regarding individual votes polled by each of the individual candidates. The particulars of the numbers of votes rejected were also recorded. The same result sheets were forwarded to the Election Officer in Form No. 13 and some on plain papers along with used and unused ballot papers with other articles under the sealed cover. According to the petitioner, an application was moved by him on 20.2.2002 before the Election Officer for recounting on the ground of improper acceptance of rejected ballot papers in some of the booths. The Election Officer fixed for 1.3.2002 for declaration of result at 10.30 A.M. and the result was declared in favour of opposite party No. 1 But later on the petitioner filed another application for recounting of votes on the ground of margin of votes was less than 1 % of the total numbers of valid votes polled where after the Election Officer referred the matter to the Collector and as per the direction of the Collector recounting of the ballots was undertaken and after recounting the petitioner was declared elected. However, this fact is under dispute which will be dealt with by this Court later on.

4. On 11.3.2002 the opposite party No. 1 had filed the election petition under Sections 44-I & 44-M of the Act, 1959 to declare himself to be elected member of the Panchayat Samiti and for a declaration to the effect that the subsequent declaration made by the Election Officer declaring the election of the instant petitioner, as null and void together with other consequential relief. The instant petitioner had also filed recrimination petition which was dismissed.

5. The main allegation of the opposite party No. 1, in the election petition which was registered as Election Misc. Case No. 1 of 2002 by the Civil Judge (Sr. Division), Kendrapara was that after the polling was over, the ballots with the result sheets were forwarded by the Presiding Officers of each of the booths and before undertaking of the above sham and mock recounting, the selected packets have been tampered with by the instant petitioner and the cover of the same with the signature of polling agents were also not available. It was also alleged that in respect of 9 out of 20 booths, foul play was practiced during the alleged sham and mock recounting and during that recounting, another rubber stamp of the completely different shape and size was fraudulently affixed on some of the ballot papers which were in favour of the instant opposite party No. 1 in order to cancel his valid votes polled. He had also given the particulars of those 9 booths along with valid votes which were polled and found valid before declaration of the result in favour of opposite party No. 1 He had further alleged that in respect of same number of booths given the double stamped ballot papers found in those booths. The particulars of those booths were given as under :

The second writ application, i.e. W.P.(C) No. 8736 of 2003 was filed by the petitioner against the impugned order dated 14,8.2003 passed by the learned Civil Judge (Senior Division), Kendrapara allowing the application for opening of ballot papers of the respective booths for inspection and reference by the concerned polling agents of opposite party No. 1 at the time of their examination in the witness box. That writ application was allowed and the order of the learned Civil Judge (Senior Division), Kendrapara was set aside with the condition that he will first record the evidence of the witnesses on behalf of the opposite party No. 1 and thereafter will allow the writ petitioner to lead such evidence as deem fit and proper and after evidence is led on behalf of both the parties, the Court will consider the material on reported pass orders either to allow inspection or recount or not to allow inspection or recount, and if the Court allows such inspection or recount, the Court may examine the ballot papers and decide the dispute between the parties.

40. The above fact was corroborated by the O.P.W. 14, the authorised Election Officer who has entered in the witness box as a witness of the opposite party No. 1 to the election petition (i.e. the instant writ petitioner). The relevant portion of his statement is reproduced as under:

xx xx I conducted the aforesaid recounting of the votes prior to the declaration of the results on 1.3.2002. After the aforestated recounting, I prepared the result sheet which has been filed in this case. This is said result sheet prepared by me after recounting and is signed by me given with date. It is now marked as Ext.G. while Ext.G/1 is my signature with date thereon. As the aforesaid stated recounting, I finally declared the result of that election on 1.3.2002 in proper form. Before the aforementioned recounting, as per the circular vide Ext.B, the permission was accorded from the Authorised Officer of the then Collector, Kendrapara. The said Authorised Officer was some Mr. Kar, who is the then Project Director District Rural Development Agency, Kendrapara. I am well acquainted with his handwritings and signatures. This is the said permission for recounting given by Mr. Kar Now marked as Ext.H, while Ext.H/a is the signature of Mr. Kar thereon.