Heard the learned counsel for the petitioner, Mr. A.M. Mazumdar. Heard also Mr. A.K. Phukan, the learned Additional Senior Govt. Advocate, Assam. 2. The petitioner contested the election for Membership to the North Cachar Hills Autonomous District Council from No. 13 Hajadisa Constituency. The poll took place on 16th November, 1987 and counting took place on 18th November, 1987 from 8 A.M. and was completed the same day. The counting of votes of No. 13 Hajadisa Constitiuency started at about 2P.M. and was completed at about 5P.M. on the same day. Immediately after the counting was over the petitioner submitted an application under Rule 165 of the Assam Autonomous Districts (Constitution of District Councils) Rules, i9jl, hereinafter referred to as 'the Rules' to the Returning Officer stating therein that he was not satisfied with the counting of votes and that there was every doubt of mistake in counting, and he prayed for recounting of the votes. The petitioner's grievance is that without passing any order on his application for recounting the Returning Officer proceeded to declare that Respondent No. 4 Sri Doitolal Thaosen was elected. Mr. Mazumdar submits that under the proviso to Rule 165 (1) it was the duty of the Returning Officer to pass an order on his application before" proceeding to declare the result. Rule 165 (1) may be conveniently quoted for reference : "165(1) When the counting of votes has been completed, the Returning Officer shall forth with declare the candidate or candidates to whom the largest number of valid votes has been given to be elected. Provided that upon the application of any candidate or his election agent or his duly authorised representative a recount shall be made before the Returning Officer makes the declaration, but the Returning Officer may reject any such application as may appear to him to be frivolous, recording at the same time the grounds for such rejection." 3. Under the above proviso upon the application of a candidate or his election agent or his duly authorised representative a recount shall be made before the Returning Officer makes the declaration, but he may reject the application if it appears to him to be frivolous, recording the grounds of rejection. As the petitioner's ground is that his application for recounting was neither allowed nor rejected giving any grounds, there would be clear violation of this Rule. 4.
As the petitioner's ground is that his application for recounting was neither allowed nor rejected giving any grounds, there would be clear violation of this Rule. 4. The question then arises as to what is the appropriate remedy available to the petitioner. Chapter VIII of the Rules deals with decision of doubts and disputes as to the validity of an election. Rule 179 thereunder deals with election petition and says "save as provided in rule 16 or in rule 127, no election shall be called in question except by an election petition presented in accordance with the provisions of this Chapter." Rule 16 deals with vacation of seats by disqualified members. Rule 127 deals with effect of disqualification. Therefore, neither of the above two excepted Rules is relevant in this case. After the result has been declared if the petitioner's application is now to be allowed the result of the election has to be called in question. Under Rule 179 that can not be done except by an Election Petition presented in accordance with the provisions of Chapter VIII. Mr. Mazumdar, however, expresses doubt as to whether the failure on the part of the Returning Officer to dispose of the petitioner's application for recounting in accordance with the Rules would be a proper ground for declaring the election void in an election petition. (Rule 190 of the Rules deals with grounds for declaring election void. Clause (c) of sub Rule(l) thereof is to the following effect : "190 (1) Subject to the provisions of this rule, if in the opinion of the Commissioner- … (c) the result of the election has been materially affected by the improper acceptance or rejection of any nomination, or by reason of the fact that any person nominated was not qualified or was disqualified for election, or by the improper reception or refusal of a vote, or by the reception of any vote which is void, or by any non-compliance with the provisions of the rules relating to the election, or by any mistake in the use of any prescribed form ; …. the election of the returned candidate shall be void" 5.
the election of the returned candidate shall be void" 5. Form the above provision it would appear that if in the opinion of the Commissioner the result of the election has been materially affected by any non-compliance with the provisions of the rules relating to the election, that would be a ground for declaring the election void, There is no doubt that Rule 165 is a rule relating to the election and violation of the proviso to Rule 165 would amount to non-compliance with the provisions of the Rules relating to the election. There does not, therefore, appear to be any reasonable ground for not treating this to be a ground for declaring the election voids if it is proved according to law by the election petitioner in a competent election petition. As the petitioner has not filed any election petition as yet, we do not consider it appropriate at this stage to express any opinion on this question of law. 6. We accordingly leave the petitioner to proceed in accordance with the Rules to call in question the election from No. 13 Hajadisa Constituency by means of election petition, if he is so advised. It is needness to mention that should the petitioner be aggrieved by the result of the election petition it will be open for him to pursue his further remedies in accordance with law. 7. In the result, with the above observations, this petition is disposed of. Sd/- Sd/- Judge Chief Justice