Biswanath Rath, J. - (1.) PETITIONER has filed this Writ Petition seeking a direction against the Opp. Party No. 1 to allow his petition for recounting & declare the result of the recounting before proceeding to conclude the election for the President on 4.2.2015. The matter involves in relation to the Co -operative Election concerning AYABE Primary Agricultural Co -operative Society Ltd. Following the election notification by the State Co -operative Election Commissioner, the election for the AYABE Primary Agricultural Co -operative Society Ltd. was held on 18.1.2015. This matter particularly involves the vote casted in respect of Zone No. 8. Petitioner by filing this Writ Petition alleges that since there was defective counting in respect of Zone No. 8 in relation to the Petitioner following the provisions contained under Rule -45 of the Orissa Co -operative Societies (Election to the Committees) Rules, 1992, he has made an application on 18.1.20215 itself requesting the Election Officer for recounting of the votes casted in his favour in respect of Zone No. 8. It is further alleged that on the same day, he had also made a similar complaint to the Election Commissioner. The complaint made to the Election Officer as well as the Election Commission are appearing at Annexures -1 & 2 to the Writ Petition. The Petitioner further alleges that in spite of the complaint & provision being provided under the Election Rules, there is no consideration of his allegations & the Election Officer has already brought out the notification vide Annexure -3 for concluding the election of the President of the Society by 4.2.2015.
(2.) HEARD Learned Counsel for the parties. There is no denial that the vote for Zone No. 8 was conducted on 18.1.2015. It is also a fact, as appearing from the Writ Petition, that the Petitioner has already submitted his complaint following the procedures contained under Rule 45 of the Orissa Co -operative Societies (Election to the Committees) Rules, 1992 to the Election Officer as well as to the Election Commission before proceeding to finalise the vote. It is relevant to take note of provision contained under Rule 45 of aforesaid Rule, 1992 which is quoted herein below: - - "45. Recount of votes -:(1) After the completion of the counting, the Election Officer shall record in the result sheet in Form XII, the total number of votes polled by each candidate & announce the same; Provided that, when an equality of votes is found to exist between any candidate & the addition of one vote will entitle any of the candidate to be declared, the determination of the person or persons to whom such an additional vote shall be deemed to have been given shall be made by lots to be drawn in the presence of the Election Officer & the candidates who may desire to be present, & in such manner as the Election Officer may determine. (2) After such announcement has been made, a candidate or, in his absence, his Election Agent may apply in writing to the Election Officer for a recount of all of any of the ballot papers already counted stating the grounds on which he demands such recount. (3) On such an application being made, the Election Officer shall decide the matter & may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable. (4) Every decision of the Election Officer under Sub -rule (3) shall be in writing & contain the reasons therefore. (5) If the Election Officer decides under Sub -rule (3) to allow an application either in whole or in part, he shall - (a) count the ballot papers again in accordance with his decision; (b) amend the result sheet in Form XII to the extent necessary after such recount; & (c) announce the amendment so made by him. (6) In case no application for recount under Sub -rule (2) is made, or after disposal of such application made, if any, in the manner specified under Sub -rule (3), (4) & (5), the Election Officer shall sign the result sheet in Form XII & no application of any further recount shall be entertained thereafter; Following Sub -rule 2 of Rule 45 of the Rule 1992, the power has been given to the candidates or in his absence, his Election Agent authorizing to apply in writing to the Election Officer for recounting of all or any of the ballot papers already counted stating the grounds on which he demands such recount. Similarly, in Sub -rule 3 of Rule 45 of the Rules 1992, the Election Officer has power to decide the matter & may allow the application in whole or in part & to decide & take decision in the matter following Sub -rule 4 of Rule 45 & Sub -rule(5) of Rule 45 give a power to the Election Officer to decide such application & pass appropriate order in consideration of such objection. Section 46 gives a power to declare the result after exercise of power under Rule 45." I find the Petitioner has already made a complaint to the Election Officer vide Annexure -1 on 18.1.2015 & there is no dispute that the complain of the Petitioner has not been decided. Be that as it may, since the Petitioner has already made a complaint to the Election Officer in the matter of recounting of votes as per Annexaure -1, the Petitioner has a right to raise his complaint under Rule 45 of the Orissa Co -operative Societies (Election to the Committees) Rules, 1992. There is no consideration of the objection of the Petitioner before the Election Officer proceeding to publish the schedule for holding Election of the President of the Society. Under the Circumstances, I find there is no compliance of provision contained under Rule 45 & Rule 46 of the above Rules & in the premises, I dispose this Writ Petition directing the Election Officer to consider the objection of the Petitioner submitted under Rule 45 of the Rules, 1992, take a decision in exercise of power under Rule 45 & pass appropriate order before concluding the election for the President on 4.2.1015.
(3.) IN view of urgency in the matter & finding there is shortage of time in between, I direct the Petitioner to serve a copy of this order on the Election Officer for his proceeding in the matter in the light of the direction given hereinabove. Since the order is passed in presence of the Learned Additional Standing Counsel, he is also directed to make necessary communication to the Election Officer in the said regard. The Writ Petition succeeds. However, there shall be no order as to cost. A free copy of this Judgment be handed over to Sri Mohanty, Learned Additional Standing Counsel for his communication & onward action in the matter.;