Judgment:
C.R. Pal, J.
1. In this writ petition the petitioner has challenged the judgment dated 29-1-1998 passed in Misc. Appeal No. 63 of 1997 by the learned Additional District Judge, Bhadrak confirming the judgment dated 30-8-1997 passed by the learned Civil Judge (Junior Division),_ Bhadrak in Election Misc. Case No. 31 of 1997.
2. The facts giving rise to this petition are as follows :--
The writ petitioner contested for the post of Ward Member of Ward No. 7 of Grade Grama Panchayat against he opposite party Nos. 1 and 3 in the election held an 15-1-1997. In the said election, the petitioner was allowed with the symbol 'Scale' (Nikiti) and opposite party Nos. 1 and 3 were allotted with the symbol 'Bullock Cart' (Gagada) and 'Pen' (Kalams) respectively. It is alleged that the opposite party No. 1 secured 55 valid votes but, as one such valid vote was illegally declared invalid, the valid votes determined in her favour came to 54 despite her protest. It is further alleged that though the present petitioner got 53 valid votes in her favour by accepting an invalid vote as a valid one, the total number of votes cast in her favour was determined at 54 votes despite the protest of the opposite party No. 1. The opposite party No. 3 secured 23 valid votes. As the valid votes cast in favour of' the present petitioner and the opposite party No. 1 were found to be equal in number, the Presiding Officer declared the writ petitioner elected by resorting to lot. Being aggrieved by the aforesaid result declared by the Presiding Officer, the present opposite party No. 1 filed Election Misc. Case No. 31 of 1997 before the learned Civil Judge (Junior Division), Bhadvak to set aside the election of the writ petitioner and to further declare the present opposite party No. 1 to have been elected as the Ward Member of Ward No. 7. Before the learned Civil Judge (Junior Division), the writ petitioner filed her written statement controverting the allegation and supporting the result declared by the Presiding Officer. The learned Civil Judge after recording the evidence and hearing the present petitioner and opposite party No. 1, allowed the Misc. Case on contest against the writ petitioner and ex parte against opposite party No. 3 declaring the election of the writ petitioner as Ward Member of Ward No. 7 of Grade Gram Panchayat void and further declaring the present opposite party No. 1 to have been elected as such ward Member. Against the order passed by the learned Civil Judge (Junior Division), the present petitioner preferred Misc. Appeal No. 63 of 1997 before the learned Additional District Judge, Bhadrak. The learned Addl. District Judge after hearing the parties dismissed the said Misc. Appeal confirming the order of the learned Civil Judge (Junior Division). Being No. 63 of 1997, the petitioner has come up with this petition challenging the legality of the impugned order.
3. On behalf of the petitioner it is contended that the learned Civil Judge has gone beyond the pleadings of the opposite party No. 1 and recounted the votes cast in favour of the petitioner, rejected two of her valid votes and declared her election as ward Member to Grade Gram Panchayat from Ward No. 7 void and declared the opposite party No. 1 elected as ward Member of the said ward. According to the learned counsel for the petitioner, the present opposite party No. 1 is estopped from claiming of votes as she consented to declare the result of the election by lot. According to him, the recounting is against law and should not have been adopted by the Learned Civil Judge. It is further contended [hat the learned District Judge without considering whether or not an order of recounting is imperative under the circumstances of the case decided to recount the votes relying on the provisions of Section 39 of the Orissa Gram Panchayat Act which is not proper. The learned counsel for the opposite party No. 1 on the other hand supported the impugned order and contended that in absence of anything to show that the procedure followed by the trial Court and the appellate Court are wrong, no interference under Article 226 is permissible.
4. On perusal of the impugned judgment and hearing the learned counsel for both side, we find that the disputes before the learned Civil Judge (Junior Division), Bhadrak was whether the present opposite party No. 1 who was the petitioner before the Civil Judge (Junior Division) secured 55 valid votes in her favour out of which one was rejected by the Presiding Officer illegally and whether the present petitioner secured 53 valid votes and the Presiding Officer by accepting one invalid vote be valid in her favour determined the number of valid vole at 54. The trial Court also framed specific issues on the above dispute. The present opposite party No. I who was the petitioner before the trial Court examined herself as PW 1 and exhibited the disputed ballot papers whereas the present petitioner who was opp. party No 2 before the trial Court neither examined herself or any other persons as her witness nor exhibited any document. It is nobody's case that before drawing the lot recounting of votes was done by the Presiding Officer. There is also no provision in the D.G.P.E. Rules for recounting of votes of Ward Members by the Presiding Officer. The trial Court after hearing the parties and on scrutiny of the evidence and recounting the votes found that the present opposite party No. 1 secured the largest number of votes and as such the trial Court while declaring the election of the present petitioner as Ward Member of Ward No. 7 of Grade Gram Panchayat void, declared the opposite party No. 1 elected as the Ward Member of the said ward. When the dispute was relating to the number of votes secured by each of them viz., the petitioner and opp. party No. 1 and whether any valid vote of the opp. party No. 1 was rejected while accepting invalid votes in favour of the present petitioner, the same could not have been more effectively adjudicated without recounting the votes. In fact the trial Court after examining the disputed ballot papers which were marked as exhibits found that the Presiding Officer while rejecting the Ext. 1 which was cast in favour of the present opposite party No. 1 had calculated the same in favour of the present petitioner. By calculating that vote in favour of the opposite party No. 1 the trial Court held that the opposite party No. 1 secured largest number of votes and accordingly declared her elected which has been upheld by the appellate Court. We, therefore, do not find any merit in the submission that the recounting of votes by me trial Court and the appellate Court's order upholding the same are illegal. In the impugned order it has also been held that the principle of estoppel is not applicable to the instant case. The learned counsel for the petitioner however challenged the same. Rule 46 of the Orissa Grama Panchayat Election Rules prescribes that in case of an equality of vote, the result shall be decided by draw of lots and the persons whose name is drawn first is to be declared to have been duly elected. Thus the draw of lots was done according to the provisions of law and no consent of any party was required for that. Under Rule 47 a duty is scat on the Presiding Officer to proceed with the counting after the polling is over. He is also duly bound to declare that result following the procedure laid down under the Rules. Drawing of lots is the mode prescribed to be followed where no one candidate is found to have secured the largest number of votes and there are more than one candidate securing equal number of votes. That is the procedure prescribed under law which the Presiding Officer is bound to follow in the given situation. For that, consent of the parties is not required. Even if the present opposite party No. I gave her consent for the draw of lots that cannot operate as estoppel, the drawing of lots being the prescribed mode of procedure to declare, the result. Therefore, the question of estoppel against either of the parties does not at all arise. We also find that the principle laid down in Jitendra Bahadur Singh v. Krishna Behari, AIR 1970 SC 276; Ram Singh v. Kazi Mohiuddin , AIR 1988 All 210; Shri Satyanarain Dudhani v. Udaya Kumar Singh , AIR 1993 SC 367; Radhashyam Mohanty v. Narayan Chandra Nath, (1987) 64 Cut LT 102; Ram Adhar Singh v. District Judge, Ghazipur. 1985 All LJ 615; and Krishna Stores v. Sodormal, ILR 1978 Cuttack 552 (556, 564, 569 and 575) : (AIR 1978 (NOC) 309) on which the learned counsel for the present petitioner pleaded reliance are not helpful to the petitioner in the instant case. We do not also find any other illegality or perversity in the impugned orders to interfere with the same while exercising the jurisdiction under Article 226 of the Constitution. Accordingly the writ petition is dismissed.
S.N. Phukan, C. J.
5. I agree.