Full Judgment
G.K. Misra, C.J.
1. The petitioner and the opposite party contested for the Sarpanchship of Tileswar Grama Panchayat. The election took place on 2-6-1970. The petitioner's case is that the results were published on 11-6-1970 and he was declared to be duly elected. The petitioner secured 1157 votes while the opposite party secured 1126 votes. There was thus a difference of 31 votes. The opposite party filed an application for inspection and recounting of the rejected ballot papers. The Munsif, Boudh allowed the opposite party's application and directed inspection and recounting of the rejected ballot papers. It is against this order dated 4-1-1971 that this writ application has been filed under Articles 226 and 227 of the Constitution.
2. Mr. Patnaik for the petitioner contends that the opposite party did not plead the necessary material facts justifying the prayer for inspection and recounting. He refers to paragraph 10 of the election petition which runs thus:--
'That about 100 valid votes cast in favour of the petitioner in the entire election have been illegally rejected. Although the petitioner's symbol 'Bird and its compartment' bore seal mark or marks yet the same were rejected on the ground that the seal was not clear or double. About 300 votes of the petitioner were rejected and out of the same about 100 votes of the petitioner have been rejected as aforesaid. The petitioner would be able to prove the aforesaid allegation when the petitioner's rejected ballot papers are produced in court.'
Mr. Patnaik contends that the aforesaid paragraph not only does not contain a concise statement of material facts as required under Section 33 (1) (a) of the Orissa Grama Panchavat Act, 1964 (hereinafter to be referred to as the Act), but clearly states that material facts would be proved only after scrutiny of the ballot papers produced in court. He places reliance on AIR 1964 SC 1249 (Ram Sewak Yadav v. Hussain Kamil Kidwai); AIR 1966 SC 773 (Dr. Jagjit Singh v. Giani Kartar Singh) and AIR 1970 SC 276 (Jitendra Bahadur Singh v. Krishna Behari) in support of the contention that unless material facts are pleaded the Court cannot make a fishing and roving enquiry and allow inspection and recounting of ballot papers. For reasons given hereunder we do not propose to express any opinion on the argument on merits.
3. Under Section 38 (4) of the Act any person aggrieved by an order of the Munsif may within thirty days from the date of the order prefer an appeal before the District Judge having jurisdiction who shall, after giving the parties an opportunity of being heard, confirm, reverse, alter or modify the order of the Munsif. The point urged by Mr. Patnaik can be fully canvassed in appeal. Law is now well settled that this Court can exercise jurisdiction under Articles 226 and 227 of the Constitution even in relation to a case where there is an equally efficacious alternative remedy. But the Court must always exercise discretion whether the jurisdiction should be exercised or not. When we are satisfied that the aforesaid point can be canvassed adequately in appeal we do not propose to exercise our jurisdiction in this case. In other words, in appeal it is open to Mr. Patnaik to contend that the inspection and recounting that has been permitted by the Munsif is not justified by law. A direct case on the point is to be found in AIR 1966 SC 773. There the Tribunal directed inspection and on recounting it was found that the defeated candidate had obtained more votes than the successful candidate. In appeal the High Court took a different view. The Supreme Court examined the entire matter and came to the conclusion that the facts and circumstances of that case did not justify the order of the Tribunal allowing inspection. Accordingly, their Lordships upheld the judgment of the High Court quashing that order and expressed the view that it was unnecessary to further examine whether on recounting the appellant in that case had got more votes than the respondent.
4. In this case the counting had not been made. On recounting it may be that the petitioner before us may succeed before the Munsif. He had also taken a further point on the question of limitation. The net effect of the entire trial being gone into may result in the petitioner's success not necessitating the examination of the aforesaid question to be raised by Mr. Patnaik at a later stage. We do not consider that this is a fit case in which we should exercise our jurisdiction under Articles 226 and 227 of the Constitution despite existence of an equally efficacious alternative remedy.
5. It is only on this ground that we dismiss the writ application, but in the circumstances without costs. The stay order is vacated and the Munsif is directed to take steps for expeditious disposal of the case.
Acharya, J.
6. I agree.