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2004 DIGILAW 384 (GAU)

Adu Bakkar Siddique v. State of Assam

2004-06-04

RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. Heard Mr. A.K. Goswami, learned counsel for the petitioner and Mr. Joinal Abedin, learned counsel for the respondent No. 4. Also heard Mr. N.C. Phukan, learned Govt. Advocate, Assam. 2. The challenge in the present writ application, is against a judgment and order dated 9.10.2002 passed by the Learned District & Sessions Judge, Nagaon in Election Petition No. 1 of 2002 dismissing the election petition filed by the writ petitioner challenging the election of the respondent No. 4 to the post of President No. 30 Tuktuki Gao Panchayat. 3. The Learned District Judge on a consideration of the rival pleadings advanced by the parties framed the following issues for determination in the election petition: (i) Whether there is cause of action? (ii) Whether there were anomalies in the counting process? (iii) To what relies/relies the parties are entitled? 4. In so far as Issue No. (ii) is concerned, the discussions in the judgment and order under challenge would go to show that the Learned District Judge has considered as to whether the rejected votes, 57 in number, were rightly rejected. The Learned District Judge on a consideration of the evidence on record came to the conclusion that all the rejected votes were recounted and thereafter the final tally of the contesting candidates was finalised. The second question that confronted the Learned trial Court in the election petition filed, is whether 5 votes polled were missing. The finding recorded in this regard is that on the basis of the materials on record, the election petitioner had failed to prove that 5 No. of votes were missing and therefore the case projected by the election petitioner that there were anomalies in the counting was not proved. On the aforesaid basis the Learned District Judge thought it proper to dismiss the election petition. Aggrieved, the present writ application has been filed. 5. Two points have been argued by the learned counsel for the parties as the core issues requiring determination in the present writ application. First is with regard to the validity of the 57 votes which were rejected by the Returning Officer. In so far as the aforesaid question is concerned, the finding recorded by the Learned District Judge is to the effect that the 57 rejected votes were recounted and thereafter the said votes were kept out of consideration while preparing the final result sheet. In so far as the aforesaid question is concerned, the finding recorded by the Learned District Judge is to the effect that the 57 rejected votes were recounted and thereafter the said votes were kept out of consideration while preparing the final result sheet. As the rejected votes had been recounted and the final result sheet was prepared after the said rejected votes were recounted, this Court does not find any infirmity in the conclusion reached by the Learned District Judge on the aforesaid score. 6. However, the finding of the Learned District Judge with regard to the 5 missing votes stand on a different footing. It is the specific pleaded case of the petitioner that 5 of the votes polled were missing. In view of the aforesaid fact, it was incumbent on the part of the Learned District Judge to require the parties to lead full and complete oral and documentary evidence on the aforesaid point and-to consider all such evidence that have been laid before the Court. No discussion or consideration of any of the materials on record is discernible in the order passed by the Learned District Judge. This Court further finds that what was admitted in evidence by the learned trial Court is the certified copy of the final result sheet wherein the vital column against the head "Total votes polled at the Polling Station" is absolutely illegible. The records of the election case which have been summoned by this Court also reveals that there were sufficient materials on record which could have enabled the Learned District Judge to come to a firm and proper conclusion with regard to the allegation in respect of the 5 ballot papers claimed to be missing. The aforesaid materials are in the form of documentary evidence comprising of the ballot paper accounts and the results of counting in each table. Though the aforesaid documents are exhibited, there is no discussion on the basis of the aforesaid exhibited documents in the order passed by the Learned District Judge. It is the considered view of this Court that the Learned District Judge had overlooked/failed to consider relevant materials/documents which were on record and therefore this Court consider it appropriate to require the Learned District Judge to reconsider the matter once again for which purpose he will be at liberty to take on record such additional evidence as may be considered necessary. 7. 7. Consequently, and in view of the foregoing discussion the matter shall now stand remitted to the Learned District Judge for a de-novo decision on the question with regard to whether 5 ballot papers polled were missing in the counting held, thereby vitiating the counting process and materially affecting the result of the election. In view of the fact that the election of the respondent No. 4 which had been challenged by writ the petitioner by means of the election petition took place in December 2001/January 2002, the Learned District Judge shall make every endeavour to dispose of the case at the earliest and in any case within a period of two months from the date of receipt of this order. 8. The writ petition stands disposed of as indicated above.