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2005 DIGILAW 141 (GAU)

Nazrul Islam Laskar v. Afsar Hussain Laskar

2005-02-17

AMITAVA ROY

body2005
JUDGMENT A. Roy, J. 1. The Petitioner seeks to invoke the extraordinary jurisdiction of this Court to over turn the judgment and order dated 13.8.04 passed by the learned District Judge, Cachar, Silchar, in Title Suit No. (Election) 13/2002 directing a recount of votes and fresh declaration of the results of the election of the Zila Parishad member to the Sonai (North) Zila Parishad constituency No. 03/03 under Cachar Zila Parishad. 2. I have heard Mr. N.M. Lahiri, Sr. Advocate assisted by Mr. N. Choudhury, Advocate for the Petitioner and Mr. A.M. Mazumdar, Sr. Advocate assisted by Mr. D. Mazumdar, Advocate for the Respondent No. 1/election Petitioner. 3. The necessary facts are outlined in the pleadings. In pursuance of the Assam State Election Commission's notification No. ACC29/2001/107 dated 19.11.2001 and notifications dated 23.11.2001 and 27.11.2001, issued by the District Election Officer, Silchar, Cachar, the Panchayat elections were held in the district of Cachar in two phases on 27.12.2001 and 31.12.2001. The Petitioner, Respondent No. 1 and 2 contested for election of Zila Parishad member to the Sonai (North) 03.03 Zila Parishad Constituency under Cachar Zila Parishad. Where as the Petitioner and the Respondent No. 2 were set up by the Bharatiya Janata Party and the Indian National Congress (I) respectively, the Respondent No. 1 was in the fray as an independent candidate. Their nominations having been found to be valid, there was a triangular contest. Re-polling in three polling stations was held on 2.1.2002. Following the counting of ballot papers on 3.1.2002 in presence of the contesting candidates and their agents, results were declared on 5.2.2002. The total valid votes numbering 23,378 got apportioned as follows: Petitioner (Respondent No. 1 in the Election Petition) 8306 Respondent No. 1 (Election Petitioner) 8296 Respondent No. 2 6776 The Petitioner was, therefore, declared to be elected by a margin of 10 votes. 4. The Petitioner's election was challenged by the Respondent No. 1 through an Election Petition filed under the Assam Panchayat Act, 1994, (hereafter referred to as the Panchayat Act) and the Assam Panchayat (Constitution) Rules, 1995 (hereafter referred to as the Rules) registered as Title Suit (Election) 13.1.2002 in the Court of the District Judge, Silchar, functioning as Panchayat Election Tribunal under the Act. It was, inter alia, alleged that votes in the names of 38 dead persons in Polling Station No. 52 were cast in favour of the Petitioner. It was, inter alia, alleged that votes in the names of 38 dead persons in Polling Station No. 52 were cast in favour of the Petitioner. In addition thereto five votes were cast in the same polling station for him in the name of five Govt. employees deputed for election works elsewhere. While stating that in the said polling station out of 605 votes, 592 were cast and the Petitioner had polled 588 where as 4 ballot papers were found to be invalid or allegation of 80 valid votes of the Respondent No. 1 being illegally rejected and 270 invalid votes of the Petitioner being improperly accepted was also levelled. Rampant corrupt practices in the form of carrying voters to the polling stations and booth capturing by the supporters of the Petitioner inspite of repeated protests were also alleged. The prayer made was for recounting of the ballot papers and declaring the Respondent No. 1 elected from the said constituency. 5. While categorically denying the allegations with regard to voting by impersonation, corruption and counting, the Petitioner in his written statement asserted that the election was conducted in accordance with law and that he was duly and legally elected on the basis of the true mandate of the electorate. 6. The allegations made in the Election Petition were also denied categorically by the District Returning Officer, Silchar, Cachar, Respondent No. 3 in his written statement. It was particularly denied that any vote was cast in the name of a dead person in any polling station and that any objection either by the Petitioner or his agent was ever made complaining about the same. As the votes were polled in the polling stations in the presence of the Presiding Officers, candidates and the polling agents, there was no scope of such impersonation. The allegation that votes were cast in the name of five Govt. employees detailed for election duty was also specifically denied. 7. On the basis of the pleadings the following issues were framed. 1. Whether any corrupt practice was resorted to by the Respondent No. 1 or any of his supporters, which materially effected the result of the election? 2. Whether the ballots of polling station No. 52 contain the genuine signature of the Presiding Officer or are they forged? 3. Whether the Petitioner is entitled to get relief, if so, what? 8. 1. Whether any corrupt practice was resorted to by the Respondent No. 1 or any of his supporters, which materially effected the result of the election? 2. Whether the ballots of polling station No. 52 contain the genuine signature of the Presiding Officer or are they forged? 3. Whether the Petitioner is entitled to get relief, if so, what? 8. The parties thereafter adduced evidence in support of their respective cases. Whereas the Respondent No. 1 examined six witnesses and exhibited various documents, the Petitioner examined 13 witnesses. The evidence was adduced through affidavits and witnesses were subjected to cross-examination. 9. The learned Tribunal by the impugned judgment and order directed the District Returning Officer to recount the polled votes of the PS No. 52 by deducting 21 votes cast in favour of the Petitioner and to declare the results accordingly. It transpires from the impugned judgment and order as well as from the records that the earlier issues framed were cancelled and were substituted by the following issues on 10.8.2004. 1. Whether the votes of 38 dead persons and votes of 5 Govt. employees who were on election duty were cast in favour of Respondent No. 1 at No. 52 Polling Station and if so whether this has affected the result of the election? 2. Whether the Petitioner is entitled to relief? The learned Tribunal on a consideration of the evidence on record, returned a finding that on the date of election, 16 voters of the PS No. 52 were dead and 5 Govt. employees, also voters of the same polling station, were detailed elsewhere for election duty and could not cast their votes but their votes, 21 in number, were cast in favour of the Petitioner by resorting to illegal practice. According to the Tribunal, therefore, 21 false votes were cast in favour of the Petitioner in Polling Station No. 52. Having held so, the consequential directions as noticed herein above were issued. 10. Mr. Lahiri, learned Sr. Counsel for the Petitioner has argued that as in terms of Rule 54 of the Rules, the provisions of the Representation of the Peoples Act, 1951 (hereafter referred to as the Act) would govern the election trial, the election petition ought to have been rejected as the same lacked in material facts with regard to the voters allegedly dead and the Govt. employees who because of their detailment for election duty could not allegedly exercise their right of franchise. This deficiency being fatal in face of the preemptory mandate contained in Section 83 of the Act the election petition was not maintainable in law. He urged that in absence of pleadings disclosing the primary facts with regard to the names and particulars of the voters alleged to be dead and that of the Govt. employees, no evidence in support thereof was admissible in law and that, therefore, the learned Tribunal manifestly erred in taking note of the evidence adduced on behalf of the Respondent No. 1 and ordering a recount. In any view of the matter, no evidence worth the name in proof of the death of the persons named having been adduced and the marked copy of the electoral roll not having been proved, the conclusion of the learned Tribunal that 21 false votes were cast in favour of the Petitioner in Polling Station No. 52 is utterly perverse, he contended. He maintained that only because five Govt. employees who were the voters in the said polling station had been detailed for election duty, no irrebuttable presumption was available that they had in fact not cast their votes. As admittedly 13 voters had not cast their votes in Polling Station No. 52, in absence of the marked copy of the electoral rolls to decisively ascertain the voters who had exercised their right, the finding that 21 votes were cast by impersonation being without any factual foundation was illogical vitiating the impugned judgment land order. The polling having been conducted in the view of the Presiding Officer and other polling Officials as well as the candidates and their polling agents, the allegation of impersonation in absence of any objection to the said effect in course of the polls was clearly an after thought, he argued. With regard to the documentary evidence on behalf of the Respondent No. 1 in the form of death certificates and entries in the Birth and Death Registers, it was argued that those lack any evidentiary value for non compliance of the relevant provisions of Registration of Births and Deaths Act, 1969, (hereafter referred to as the 1969 Act) and Assam Births and Deaths Registration Act, 1935, (hereafter referred to as the 1935 Act). According to him, no acceptable evidence in support of the death of the voters had been adduced and in absence of the marked elected roll indicating the voters who had actually cast their votes, there has no basis to hold in support of the allegation of impersonation. He maintained that in any view of the matter, the Petitioner having adduced evidence in support of the fact that the said voters were alive on the date of polls and had cast their votes, the findings to be contrary recorded by the learned Tribunal by leaving out of consideration the same has rendered the impugned judgment and order parse illegal and unsustainable in law. No foundation, what so ever, having been laid in support of the allegations of voting by impersonation, no case for recount had been made out, he argued. He further urged that the Petitioner having been elected on the people's mandate, as is evident from the results, the sanctity of the election on such flimsy and unproved allegations ought not to be violated and the impugned judgment and order in the prevailing facts and circumstances ought to be set aside. The following decisions were cited in support of the above contentions. Sultan Salahudding Owasi v. Mohd. Osman Shaheed and Ors. (1980) 3 SCC 281 , TH Musthaffa v. MP Varghese and Ors. (1999) 8 SCC 692 , Chandrika Prasad Yadav v. State of Bihar and Ors. (2004) 6 SCC 331 , M. Chinnasamy v. K.C. Palanisamy and Ors. (2004) 6 SCC 341 . 11. Controverting the above, the learned Sr. Counsel for the Respondent No. 1 pleaded that as no allegation of corrupt practice envisaged under the Act had been levelled, it was not necessary to furnish the particulars of the dead voters and the Govt. employees who were impersonated on the day of poll in Polling Station No. 52 and therefore the objection with regard to the maintainability of the election petition is not tenable. He maintained that as the categorical stand of the Petitioner and his witnesses was that the voters claimed to be dead were alive on the date of poll and had cast their votes, the contention with reference to the marked copy of the electoral role is wholly insignificant. He maintained that as the categorical stand of the Petitioner and his witnesses was that the voters claimed to be dead were alive on the date of poll and had cast their votes, the contention with reference to the marked copy of the electoral role is wholly insignificant. According to him, the evidence adduced on behalf of the Respondent No. 1 and his witnesses in support of the death of the voters involved being adequate and convincing, the learned Tribunal was perfectly justified in upholding the allegation of voting by impersonation qua Polling Station No. 52. He asserted that as the evidence in support of the factum of death of the voters named by the witnesses was supported by contemporaneous official records as well, the plea that they were alive on the date of poll was rightly rejected. Admittedly all 588 valid votes cast in Polling Station No. 52 having been polled by the Petitioner, the allegation of voting by impersonation in respect of 21 voters on being established by clinching evidence, the learned Tribunal rightly ordered recount-taking note of the margin of ten votes by which the Petitioner was returned. In any case, no corrupt practice having been alleged, the evidence adduced on the issue framed is to be judged by the rule of preponderance of probability and the Respondent No. 1 having discharged his burden, the learned Tribunal was right in directing a recount after conducting 21 votes illegally cast in favour of the Petitioner. He further contended that the Official witnesses proving the death certificates as well as the entries in the birth and death registers not having been confronted with the 1969 Act and 1935 Act, no such plea of non-compliance thereof is entertainable at this stage. The learned Sr. Counsel emphasized that as the findings of the learned Tribunal are based on an appreciation of the evidence on record, this Court in the exercise of its power under Article 226 of the Constitution of India would not interfere therewith by reappraising the materials on record, Mr. Mazumdar drew sustenance for his submissions from the decision of the Apex Court in Sadhana Lodh v. National Insurance Co. Ltd. and Anr. (2003) 3 SCC 524 and of the Orissa High Court in Kirtan Sahu, Appellant v. Thakur Sahu and Ors., Respondents AIR 1972 Orissa 158. 12. I have carefully balanced the competing arguments. Mazumdar drew sustenance for his submissions from the decision of the Apex Court in Sadhana Lodh v. National Insurance Co. Ltd. and Anr. (2003) 3 SCC 524 and of the Orissa High Court in Kirtan Sahu, Appellant v. Thakur Sahu and Ors., Respondents AIR 1972 Orissa 158. 12. I have carefully balanced the competing arguments. Noticeably, no plea was taken in the written statement with regard to the maintainability of the Election Petition on the ground of deficiency in material facts. No such objection seems to have been raised before the learned Tribunal in course of the arguments as well. Though faint allegations with regard to corrupt practices in the form of transporting voters and booth capturing had been pleaded those were abandoned in course of the trial. As a matter of fact, no evidence as such was led also with regard to contention of illegal reception or rejection of votes. The parties remained demonstrably confined to the aspect of voting by impersonation only. The evidence adduced by them as would be referred to shortly bear out the above determination. I am therefore, of the view that the plea with regard to the maintainability of the Election Petition being violative of Section 83 of the Act ought not to be entertained at this belated stage. Though the issues, if necessary ought to have been reframed before posting the suit for judgment, having regard to the pleadings of the parties and the trend of the evidence led, I am of the view, that the recasting of the issues as above had not prejudiced either of them. The parties being fully aware of their respective cases had gone to trial and have adduced evidence in support thereof. As the fresh issues encompass the core controversy resoluble on the basis of the evidence already on record, it does not in my view have any vitiating effect on the impugned judgment and order. The Apex Court in Sultan Salahuddin Owasi, (supra), underlined the indispensable necessity of pleading the essential facts and particulars in an election petition with exactitude and precision holding that to prove the allegation of any corrupt practice an onus lies wholly on the election Petitioner. That any amount of evidence, however excellent it is, would be futile in absence of necessary foundation in the pleadings was again recalled by the Apex Court in TH Musthaffa, (supra). That any amount of evidence, however excellent it is, would be futile in absence of necessary foundation in the pleadings was again recalled by the Apex Court in TH Musthaffa, (supra). In view of the above finding with regard to deficiency in material facts, a detailed discussion on the basis of the cited authorities is thus not called for. The decision of the Orissa High Court in Kirtan Sahu, (supra), is on the proposition that an electoral roll prepared under the Representation of the Peoples Act, being a public document is admissible in evidence even if not proved by the author thereof or a person supplying the information contained therein. In the facts of the present case more particularly noticing the pleaded case of the parties it is not necessary to deal with this aspect. 13. This brings us to the key issue, namely whether votes were cast in favour of the Petitioner in Polling Station No. 52 by impersonating 38 dead person and 5 Govt. Employees engaged elsewhere on election duty on the date of poll. In course of the trial, however, oral evidence was led with regard to 17 persons allegedly dead supported by documentary evidence for 16 out of them. Evidence in respect of 4 of the 5 Govt. Employees detailed for election duty was adduced. The Petitioner countered by adducing evidence in respect of 12 such voters to the effect that they were alive on the date of poll and had cast their votes. Having regard to the fact that this Court is called upon to exercise its power of judicial review under Article 226 of the Constitution of India to answer the question so posed, the scope of scrutiny has to be essentially confined to ascertain whether the findings and the conclusions of the learned Tribunal are based on any evidence or not. In view of the constricted self-imposed limits in the exercise of this Court's extra ordinary jurisdiction and the well accepted judicially evolved principles with regard thereto, it would be impermissible to test the adequacy, sufficiency or reliability of the evidence adduced. The limited scope of the enquiry is to examine whether there is at all any evidence in support of the findings so much so that those can be impeached to be vitiated by an error of law apparent on the face of the record. 14. The limited scope of the enquiry is to examine whether there is at all any evidence in support of the findings so much so that those can be impeached to be vitiated by an error of law apparent on the face of the record. 14. Where as the Respondent No. 1/election Petitioner examined himself and four other witnesses namely P.W. 2, P.W. 3, P.W. 4 and P.W. 5 to establish that 16/17 voters of the Polling Station No. 52 were dead on the date of poll and that four Govt. Officials also voters of the same polling station had not cast their votes, the Petitioner examined himself and 12 other witnesses to assert that 12 such voters were infact alive on the date of election, had cast their votes and had expired thereafter. A brief survey of the affidavit evidence adduced by both the parties is indispensable to ascertain as to whether evidence in support of the above allegation exists on record. Though the election Petitioner had pleaded that 38 voters of the Polling Station No. 52 were dead on the date of Poll, he limited himself, in his evidence to the following 17 persons. 1. Late Mohoram @ Mohrab Ali Laskar, s/o Barik Ali Laskar 2. Late Abdul Ali Barbhuiya, s/o Barik Ali Laskar 3. Late Akram Ali Barbhuiya, s/o Abdul Jalil Barbhuiya 4. Late Baharuddin Barbhuiya s/o. Kiramat Ali Barbhuiya 5. Late Chayar Ali Barbhuiya S/o Rahman Ali Barbhuiya 6. Late Jamila Begum Barbhaiya W/o Abdul Salam Barbhuiya 7. Late Iman @ Imam Uddin Barbhuiya s/o Aptabuddin Barbhuiya 8. Late Makram Ali Laskar S/o Mosaid Ali Laskar 9. Late Salemuddin @ Salimuddin Laskar s/o Samsuruddin Laskar 10. Late Kamalarun Nessa Laskar w/o Foizur Hoque Laskar 11. Late Akmal Hussain Barbhuiya S/o. Late Asaddar Ali Barbhuiya 12. Late Nur Ahmed Barbhuiya s/o. Alauddin Barbhuiya 13. Late Jowaid @ Jowair Ali Barbhuuya s/o. Rahman Ali Barbhuiya 14. Late Jamaluddin Barbhuiya s/o Monohar Ali Barbhuiya 15. Late Manirun Nessa Barbhuiya w/o Mantazir Ali Barbhuiya 16. Late Alimuddin Barbhuiya s/o. Formuz Ali Barbhuiya 17. Late Mahibur @ Mosibur Rahman Laskar s/o Habib Ali Laskar He also provided the names of the 5 Govt. Officials with the particulars of the polling stations to which they were detailed for election duty. He stated that votes of the dead persons named by him and of the Govt. Late Alimuddin Barbhuiya s/o. Formuz Ali Barbhuiya 17. Late Mahibur @ Mosibur Rahman Laskar s/o Habib Ali Laskar He also provided the names of the 5 Govt. Officials with the particulars of the polling stations to which they were detailed for election duty. He stated that votes of the dead persons named by him and of the Govt. Employees were cast in favour of the Petitioner by impersonating them. Though 592 votes were cast in the said polling station, the Petitioner polled 588 votes and 4 Ors. were found to be invalid. Though he made a stray reference of corruption and unfair means in the form of transportation of voters in hired vehicles, booth capturing and improper counting, the same being not in issue in the instant proceeding, it is not necessary to take note thereof. He, however, stated that the results of the election were materially affected in view of the impersonation for which he prayed for a recount before the District Returning Officer, but turned down. In cross examination, the Respondent No. 1 disclosed that he came to learn about the death of the persons referred to by him on a visit to the village for election campaign but conceded that he did not register any protest with any authority against the incorporation of the names of dead persons in the voters list. He denied the suggestion that votes were not cast in the names of dead persons or of Govt. employees engaged elsewhere at the Polling Station No. 52. P.W. 2 an L.D. Assistant of the Office of the Primary Health Centre, Banskandi, proved the death certificates and/or the counter foils thereof in respect of 11 persons namely SI. No. 1 to 10 and 17 as above as exhibits 2 to 12. He deposed that the names of the said dead persons were recorded in the Register of Births and Deaths of the area including village Bagpur. In cross-examination, though he disclosed the sources of information of death as recorded in the register, he admitted that no enquiry was made in that regard. He also admitted that he was not aware as to who had deposited the information sheets in the office of his Primary Health Centre but confirmed that the information slips were deposited on the same date. P.W. 3 Ranjit Kr. He also admitted that he was not aware as to who had deposited the information sheets in the office of his Primary Health Centre but confirmed that the information slips were deposited on the same date. P.W. 3 Ranjit Kr. Das also a LDA of the Office of the Primary Health Centre, Lkhipur, proved the death Certificates of three such voters at SI. 14, 15 and 16 as above as exhibit 13, 14 and 15. He deposed that the names of the said persons were recorded in the register of Births and Deaths of the area including village Bagpur and maintained by his Primary Health Center. In cross-examination though he confirmed that an enquiry was made on the information of the death of Jamaluddin (SI. 14) he admitted that the register did not contain any record about the source of information of the death of Monirunnessa (SI. 15). He also admitted that he will not ascertain as to whether there were persons with such names in the locality. P.W. 4 Lakhsmi Brahmacharjee, Assistant in the Panchayat Election branch inter alia proved the cover containing the marked copy of the electoral roll of Polling Station No. 52, 54 and 58 as exhibit 17. He also proved exhibit 18, the appointment letter issued to the Presiding Officers and Polling Officers. The witness proved the entries exhibit 18(1), 18(2), 18(3) and 18(4) in respect of four such Govt. Officials namely Liakat Hussain Mazumdar, Abdul Sukkur Laskar, Altaf Hussain Laskar and Noor Mahammad Barbhuiya. In cross-examination, the witnesses conceded that he did not know the persons named in exhibit 18 and stated that such appointees sometimes take leave to avoid polling duty. He, however, expressed ignorance whether the persons named in exhibit 18 had in fact attended the polling station. He confirmed that for preparing the voters list door to door enumeration was done. P.W. 5 Dr. Homeswar Sharma, deposed about the post mortem examination conducted by him on Akmal Hussain Barbhuiya on 3.9.2000 confirming his death to be 2.8.2000. He also deposed that he performed the post mortem examination on Joyaid Ali Barbhuiya and stated his date of death to be 1.9.99. He proved the post mortem reports as Exhibits 20 and 21. The dead persons are listed at SI. No. 11 and 13 as above. P.W. 6 Laxmi Brahamachariya, Sr. He also deposed that he performed the post mortem examination on Joyaid Ali Barbhuiya and stated his date of death to be 1.9.99. He proved the post mortem reports as Exhibits 20 and 21. The dead persons are listed at SI. No. 11 and 13 as above. P.W. 6 Laxmi Brahamachariya, Sr. Assistant in the Development Branch of the Office of the Deputy Commissioner, Cachar inter alia proved Material Exhibit No. 1, the sealed cover containing the Presiding Officer's Diary and the voters list for the Polling Station No. 52. 15. The Petitioner in his affidavit evidence while asserting that there was no illegality or voting by impersonation, deposed that there was no protest/complaint or objection by any contesting candidate in that regard. According to him, all the contesting candidates including the Respondent No. 1 deputed their election and polling agents for identification of the voters who duly appeared and checked the names of the persons offering themselves to vote with the particulars available in the voters list. Moreover, there were two polling Officers and one Presiding Officer to verify the identity of each voter. He deposed that the names and particulars of the voters alleged to be dead as furnished by the Election Petitioner were false and factious and the entries in the register of Births and Deaths were also wrong and manipulated. He confirmed that all the voters named in the voter's list of the Polling Station No. 52 were alive on the date of the poll. According to him, the election Petitioner managed to get some names entered in the register of Births and Deaths long after the election. He also denied that the five Govt. employees engaged in the election duty could not cast their votes. He stated that the Gaon Panchayat election at Cachar in the year 2001 was concluded on the corrected voters list prepared in the year 1997 by the Election Officer in charge of the District after the enumerators verified the same on personal visits in the locality and had updated the same. As the voters list exhibit 1 was published after inviting and considering objections for corrections, inclusions or striking out of names of dead voters well in advance, the entries therein were correct and valid in all respects. In cross-examination, he admitted that in Polling Station No. 52 there were 605 voters of which 592 cast their votes. As the voters list exhibit 1 was published after inviting and considering objections for corrections, inclusions or striking out of names of dead voters well in advance, the entries therein were correct and valid in all respects. In cross-examination, he admitted that in Polling Station No. 52 there were 605 voters of which 592 cast their votes. He also admitted that 4 votes were found to be invalid and that the remaining 588 votes were polled by him. He denied the suggestion that the 17 persons named by the election Petitioner were dead and did not cast their votes and further that the persons named in exhibit 18 were engaged elsewhere and therefore, did not vote as well. D.W. 2, D.W. 3, D.W. 4, D.W. 5, D.W. 6 to D.W. 13 in their affidavit evidence stated that persons at SI. No. 1, 2, 3, 5, 6, 8, 9, 14, 19 were alive on the date of poll and had accompanied them to the polling station to cast their votes. The witnesses claimed themselves to be near relations of the persons concerned namely wife/son/brother. D.W. 5 brother of Immamuddin Barbuiya deposed that Immamuddin Barbhuiya whose name appeared in the SI. No. 42 of the voters list was alive on the date of poll and had accompanied him to the polling station to cast his vote. D.W. 7 son of Kamalurannessa stated that his mother’s name appeared at SI. No. 142 in the voters list and that she had accompanied him to cast her vote. According to the Petitioner/returned candidate the election Petitioner had wrongly mentioned the names and particulars of the above two voters showing them to be dead. 16. It is expedient first to deal with the evidence relating to the 5 Govt. Officials appointed for election duty. Apart from the pleadings of the parties opposed to each other as well as their statements on oath mutilating each other's version and the testimony of P.W. 4 indicating the particulars of the polling stations to which the four named Govt. Officials had been posted for election duty there is no other evidence, what so ever, to the effect that they had not cast their votes on the day of poll. Even P.W. 4 when cross examined had to concede that he was not aware as to whether the persons named in Exhibit 18 had attended the polling station or not. Officials had been posted for election duty there is no other evidence, what so ever, to the effect that they had not cast their votes on the day of poll. Even P.W. 4 when cross examined had to concede that he was not aware as to whether the persons named in Exhibit 18 had attended the polling station or not. The inescapable conclusion in view of the state of materials noticed herein above is that there is no evidence at all to establish that the five Govt. Officials detailed for polling duty had not cast their votes at polling station No. 52 in the election in question. The conclusion of the learned Tribunal to the contrary is thus wholly inferential and not based on any evidence on record. A mere assertion in the election petition and the statement of the Respondent No. 1/Election Petitioner on oath, cannot be construed to be an evidence in support of the said contention, more particularly, when the same had been categorically denied not only in the Petitioner's written statement but also by the Petitioner in his affidavit evidence. 17. Now the aspect of dead voters. Admittedly all 588 valid votes polled at the polling station No. 52 were cast in favour of the Petitioner. The burden of proving the allegation that votes were cast in the name of dead voters by impersonation is unmistakably on the Respondent No. 1/Election Petitioner. The first discordant note is the variance between the assertion in the Election Petition and the proof thereof. It was pleaded that votes of 38 dead persons were cast at the said polling station. In evidence, however, the Respondent No. 1 restricted himself to only 17 such voters named herein above. Out of them again, as the evidence discloses, two namely Immamuddin Barbhuiya and Mohibur @ Mosibur Rahman had admittedly expired after the elections. To this extend as well the allegation of impersonation suffers a jolt. Whereas there can be no doubt that two persons namely Akmal Hussain Barbhuiya and Joyaid @ Jowair Ali were dead on the date of poll as testified by P.W. 5 Dr. Homeshwar Sharma who had performed the post mortem examination on them, no other oral evidence except the general statement of the Respondent No. 1/Election Petitioner that those two persons along with 15 Ors. named were impersonated. Homeshwar Sharma who had performed the post mortem examination on them, no other oral evidence except the general statement of the Respondent No. 1/Election Petitioner that those two persons along with 15 Ors. named were impersonated. To prove the death of 14 such voters whose names appear at SI. No. 1 to 10, 14, 15, 16 and 17, P.W. 2 and P.W. 3 have been examined who proved and exhibited death certificates and/or counter foils thereof, deposing that the informations with regard to the death of the persons concerned had been duly recorded in the corresponding registers of Births and Deaths of the related primary health centers. The supportable documentary evidence adduced is in the from of Exhibit 2 to 15. These documents certify that the informations are taken from the original register of Birhs and Deaths and issued under Section 12/17 of the 1969 Act. P.W. 4 while proving Exhibit 3-12 in cross-examination conceded that no enquiry was made with regard to the informations provided. Strikingly Exhibits 4 to 8 reflect that the date of information of death was same i.e. 11.9.2002 whereas in respect of Exhibit 9, 10, 11 and 12 those were 23.6.2002, 23.9.2002, and 27.9.2002 respectively. Exhibits 3 to 8 were also issued on the same date i.e. 11.9.2002 whereas Exhibits 9, 10, 11 and 12 were issued on 3.9.2002, 23.9.2002, 27.9.2002 and 27.9.2002 respectively. The Co-incidence is indicative having regard to the fact that the Election Petition was filed on 25.2.2002. The registration numbers of the informations reflected in exhibits 3 to 12 are also noticeable being 85, 86, 87, 88, 89, 90, 85A, 86A, 91 and 92. So far as the information carried in the documents exhibit 3, 4, 5, 7, 8, 9, 10, 11 and 12 is concerned rebuttal evidence has been adduced on behalf of the Petitioner/returned candidate. Whereas the documents referred to above disclose that informations, with regard to the death of the persons concerned were furnished either by the wife or husband, as the case may be, by affidavit evidence of wife/brother/son of the persons concerned it has been asserted that the voters were alive on the date of poll and had cast their votes. Whereas the documents referred to above disclose that informations, with regard to the death of the persons concerned were furnished either by the wife or husband, as the case may be, by affidavit evidence of wife/brother/son of the persons concerned it has been asserted that the voters were alive on the date of poll and had cast their votes. Admittedly none of the informants referred to in the above documents was examined in course of the trial, notwithstanding that the factum of death of the named voters has been, categorically denied in the written statement as well as affidavit evidence. 18. Evidence in law unmistakably has to be something more than a mere assertion. It has to be legally admissible with intrinsic probative value. Pleadings is no evidence and the rival statements on oath of the contesting parties mutilating each other cannot be decisive of a fact or an issue. The exhibited documents exhibits 3 to 15 are nothing but certificates to the effect that the embodied information had been taken from the original record of births and deaths. The certificates issued under the aforementioned Act, per se therefore do not constitute evidence of death of the persons named therein more so when the factum thereof is seriously in dispute. The certificates of death and the counter foils relating thereof offered, as the documentary evidence of the death of the voters in question to bear any probative value would irrefutably have to conform to the mandates of the enactments relating thereto. The contention of Mr. Mazumdar that as the witnesses P.W. 4 and P.W. 5 were not confronted with the provisions of the 1969 Act and the 1935 Act, to contest the credibility of the documents proved and exhibited by them, any objection thereto is impermissible, does not appear to be convincing. There being a legislation governing the procedure to furnish and record an information with regard to birth and death any form of evidence, oral or documentary, in relation thereto to be admissible in law has to be essentially in accord with the legislative prescriptions. Section 8 of the 1969 Act spells out the persons whose duty it is to furnish information of births and deaths in the various contingencies enumerated therein. Section 13 thereof sets out the procedure for registration of delayed informations. Section 8 of the 1969 Act spells out the persons whose duty it is to furnish information of births and deaths in the various contingencies enumerated therein. Section 13 thereof sets out the procedure for registration of delayed informations. Section 13(3) provides that any with or death, which has not been registered within one year of its occurrence, shall be registered only on an order made by a magistrate of first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee. The registration of any information qua birth or death as contemplated under the aforementioned Sub-section, is thus contingent on an order of a Magistrate as specified therein, following a verification of the correctness of the information provided and on payment of the prescribed fee. As a corollary any registration made without complying with the above essentials would be non est in law. Section 18 of the 1955 Act also makes it obligatory on the part of the informant contemplated therein to furnish information within a period of 8 days of the event. It is, therefore, amply clear that a mere information about the birth or death of any person at any point of time even if recorded would not by itself be an evidence legally admissible in support of the recorded fact. The party relying on such evidence to carry any probative value is unavoidably required to establish that the legally prescribed formalities for registration of such information were duly complied with. 19. Reverting to the certificates of death and/or counter foils, it is manifest from Exhibits 4, 5, 6, 7 and 8 that information with regard to the death of the concerned persons was furnished on 11.9.2002 and the certificates were also issued on the same date. Similarly Exhibits 11 and 12 were furnished on the date on which informations were furnished i.e. 27.9.2002. Exhibit 2 reflects the date of registration as 12.4.2002 and the issuance thereof as 17.4.2002, exhibit 3 does not show any date of registration but bears the date of issue on 11.9.2002. In Exhibit 13, the date of registration appears to be 12.3.2001 and date of issue 14.3.2001. P.W. 4 proving exhibits 2 to 12 had candidly admitted that no enquiry was held into the informations furnished. In Exhibit 13, the date of registration appears to be 12.3.2001 and date of issue 14.3.2001. P.W. 4 proving exhibits 2 to 12 had candidly admitted that no enquiry was held into the informations furnished. There is no evidence that the conditions precedent for registration of the informations as envisioned in Section 13(3) of the 1969 Act had been complied with. The irresistible conclusion, therefore, is that the documents Exhibits 2 to 15 cannot be construed to be evidence of the factum of death of the persons named therein. 20. While adopting this approach this Court is alive to the inherent limitations on the exercise of its power of judicial review, where reappraisal of evidence is not permissible. It is, however, open to it to ascertain the innate worth of any evidence in a case of the present nature, where the factum of death of the voters is disputed and the burden on the party asserting it is evidently more onerous. As already noticed, though the rebuttal evidence from the side of the Petitioner/returned candidate has been through the near relations of the voters involved, none of the informations or their family members had come forward to depose in support of the factum of death or to confirm the information relating thereto furnished to the authorities of the Primary Health Centers issuing the certificates. Noticeably neither the election agent nor any of the polling agents of the Respondent No. 1 of Polling Station No. 52 has offered his evidence in support of alleged impersonation. On the other hand, the testimony of the Petitioner's witnesses has remained unshaken on cross-examination. 21. The learned Tribunal does not seem to have addressed itself to these vital aspects having a bearing on the fact in issue. The impugned judgment and order does not disclose any discussion marshalling the evidence of both sides. Though a fleeting reference of the gist of the evidence adduced on behalf of Respondent No. 1 has been made, there is no consideration of such evidence in juxtaposition with that of the Respondent No. 1's evidence. The conclusion that 21 votes at the polling station No. 52 had been illegally cast, 16 being against dead voters and 5 against government officials detailed on election duty is not only abrupt but also bereft of reasons. 22. The conclusion that 21 votes at the polling station No. 52 had been illegally cast, 16 being against dead voters and 5 against government officials detailed on election duty is not only abrupt but also bereft of reasons. 22. From the above narrative, the inescapable conclusion is that the deduction that the conclusion that votes were cast by impersonating 21 voters is not based on any evidence. The allegation of impersonation stands proved only in respect of two namely Akmal Hussain Barbhuiya, Joyaid @ Jowair Ali who were admittedly dead on the date of poll being evident from the testimony of P.W. 5 Dr. Homeshwar Sharma. There being no evidence in support of the factum of death of the other persons named by the Respondent No. 1 and there being no iota of proof that the five of the Govt. Officials detailed for election duty had not exercised their right to vote, the determination of the learned Tribunal to the contrary in absence of any factual foundation or material is perverse and therefore, not sustainable in law and on facts. The margin of victory being 10, the allegation of impersonation though proved vis-a-vis, the above two named voters does not materially effect the results of the elections. The finding upholding the allegation of voting by impersonation being not based on any evidence, the same suffers from a patent error of law liable to be interfered with in exercise of powers under Article 226 of the Constitution of India. 23. The Apex Court in Syed Yakoob v. K.S. Radhakrishnan and Ors. AIR 1964 SC 477 while elaborating on the jurisdictional limits of High Court in issuing a writ of certiorari under Article 226 qua orders passed by inferior Courts or tribunals held thus: A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of, natural justice. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.... It is, of course, not easy to define or adequately describe what an error of Law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. The same view was reiterated in Raghunathe Jew at Bhapur v. State of Orissa and Ors. (1999) 1 SCC 477in the following terms. It is well settled that in exercise of such supervisory jurisdiction, the High Court would be entitled to interfere with the conclusion of an inferior tribunal, if such tribunal considers any inadmissible pieces of evidence in arriving at its conclusion or ignores material piece of evidence from the purview of consideration or the conclusion is based upon any error of law or the tribunal itself has no jurisdiction at all or that the Conclusion is based on no evidence. The decision of the Apex Court in Sadhana Lodh relied upon on behalf of the Respondent No. 1 is to high light the constricted limits of the supervisory jurisdiction of this Court under Article 226 of this Court. The decision of the Apex Court in Sadhana Lodh relied upon on behalf of the Respondent No. 1 is to high light the constricted limits of the supervisory jurisdiction of this Court under Article 226 of this Court. While there is no quarrel on the proposition of law laid down therein having regard to the fact that the instant petition is also under Article 226 of the Constitution of India and that the materials on record warrants interference in exercise of the extra ordinary powers, this decision does not advance the case of the Respondent No. 1. 24. In the present case as recited herein above, there is no evidence in support of the allegation of voting by impersonation except with regard to two voters named herein above. Evidence of a fact in issue to be acted upon has to be primarily admissible in law with inherent probative value. It is the solemn basis on a consideration of which a Court of law believes the fact relevant or in issue to exist or considers its existence so probable that a prudent may ought under the circumstances of the case, to act upon the supposition that the fact exists. It has to be tangible and legally admissible. Inference can under no circumstance substitute legal evidence. This Court in its exercise of power of judicial review while scrutinizing a decision of a subordinate Court or Tribunal on a question of fact would interfere if materials on which the same is founded lack in elemental value. It would then not be a case of reappraisal or re-appreciation or adjudication of sufficiency or adequacy of the materials but a probe into the subsistence of any evidence. This is more so when the sanctity of an election process is involved requiring an increased circumspective approach. 25. The essential conditions to exist for an order of recount of votes were once again noticed by the Apex Court in Chandrika Prasad Yadav, (supra), existence of a prima facie case being one such requirements. A note of caution was sounded observing that a narrow winning margin of votes would not be sufficient for directing recount and the significance of maintaining the secrecy of ballot papers must be kept in view. A note of caution was sounded observing that a narrow winning margin of votes would not be sufficient for directing recount and the significance of maintaining the secrecy of ballot papers must be kept in view. Reiterating the same opinion the Apex Court in M. Chinnasamy, (supra), underlined that an election ought not to be set aside on hyper-technical grounds if no factual foundation therefore had been laid in the pleadings, as the elected candidate may not have any hand therein. So far as requirement of pleadings in a case where a direction for recounting of ballot papers has been prayed for, it ruled that the Court must proceed cautiously and with circumspection having regard to the requirement of maintaining secrecy of ballot papers. The Apex Court recalled its observations in D.P. Sharma v. Commissioner and Returning Officer and Ors. 1984 Supp SCC 157, that an appropriate foundation is required to be laid by the election Petitioner indicating the precise material on the basis of which it could be used with some substance that there has been either an improper reception of invalid votes in favour of the elected candidate or improper rejection of valid votes in favour of the defeated candidate or wrong counting of votes in favour of the elected candidate which in reality had been cast in favour of the defeated candidate. It was reiterated that for scrutinizing and recounting of ballot papers, a prima-facie case must be made out leading to the satisfaction that errors of such magnitude exists SC as to materially affect the election. In face of the judicially enunciated principles as above, the irresistible conclusion in the facts of the present case is that the Respondent No. 1 election Petitioner having failed to present a prima-facie case and a factual foundation justifying a recount of votes, the prayer to that effect cannot be entertained. In the wake of the above, the petition succeeds. There being no evidence of voting by impersonation materially affecting the results of the election, no case for recount has been made out. As a corollary, the impugned judgment and order is set aside. No costs.