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2013 DIGILAW 844 (GAU)

Hamida Khatun v. State of Assam

2013-12-03

N.CHOUDHURY

body2013
JUDGMENT AND ORDER N. Choudhury, J. By this writ petition, the petitioner has challenged the order dated 9.7.2013 passed by the learned Panchayat Election Tribunal, Barpeta in Election Petition No. 13/2013 setting aside the election of the writ petitioner and declaring the private respondent elected from Hazipara Gaon Panchayat. 2. Facts involved in this case are that Election to Hazipara Gaon Panchayat was held on 6.2.2013 wherein, among others, the present writ petitioner (Mstt. Haimda Khatun) and the private respondent No. 3 (Mstt. Parvin Sultana) were also on the fray. Petitioner fought the election on a Ticket of the Indian National Congress Party and the respondent No. 3 was a nominee of the AUDF Party. Counting was held on 14.2.2013 whereupon the petitioner was declared to have been elected as President of the Hazipara Gaon Panchayat. The petitioner was shown to have scored 3422 votes followed by her nearest rival, namely, the respondent No. 3 herein, who was found to have polled 3299 votes and thus there was a margin of 323 votes between the returned candidate and her nearest rival. The tally of all the candidates on fray were as follows:- Hamida Khatun (Petitioner) 3422 Parvin Sultana (Respondent No. 3) 3299 Sanyara Khatun 370 Saleha Khatun 865 Rejected Ballots 365 Total votes cast 8312 From averments made in the writ petition, it is disclosed that the petitioner was administered oath on 18.3.2013 and he started functioning as the elected President of the Hazipara Gaon Panchayat. 3. Thereafter on 25.3.2013, the respondent No. 3 filed an election petition, being Election Petition No. 13/2013 under section of 129 of the Assam Panchayat Act, 1994 before the learned District Judge, Barpeta who is designated as Panchayat Election Tribunal for the district of Barpeta. The prayer in the election petition was for setting aside of election of the returned candidate upon recounting and thereupon to declare her elected as President of the said Gaon Panchayat. In paragraph 4 of the election petition, the election petitioner pleaded that the counting staff and Deputy Commissioner, Barpeta 'resorted to gross irregularities in counting by mixing half open ballot papers and also ballots liable to be rejected with bundle of ballots containing ballots of 'the' retuned candidate. It is also alleged that votes cast in favour of the election petitioner were counted along with votes of the returned candidate. It is also alleged that votes cast in favour of the election petitioner were counted along with votes of the returned candidate. In paragraph 5 of the petition, it is alleged that there were 'acts of rigging and violation of election laws committed by the counting staff in collusion of 'the returned candidate, her counting staff and the local MLA with the indirect approval of the Presiding Officer'. On summons being served on the returned candidate who is the petitioner here, he submitted written statement denying the allegations. But before the trial had started the learned Panchayat Election Tribunal (hereinafter referred to as 'the tribunal') passed an order on 21.6.2013 observing that the learned counsel of the returned candidate "honestly submitted that he has nothing to object if court is pleased to pass an order of recounting of votes". The said order dated 21.6.2013 of the Learned Election Tribunal ended with following observation:- " Perused the election petition and also the objection filed by the O.P. No. 1 and O.P. No. 2, respectively, considering the facts and circumstances of the case, recounting is allowed." 4. As soon as the recounting order was passed on consent given by the learned counsel of the returned candidate, the main prayer in the election petition stood allowed and perhaps nothing survived in the election petition inasmuch as what was left is only implementation of the recounting order and consequential relief thereon. Allowing of recounting ipso facto shows that the counting of election and declaration of the returning officer in favour of the returned candidate stood impliedly set aside. The returned candidate did not challenge the order. The order dated 21.6.2013, therefore, attained finality. What is more, the said order was implemented on 9.7.2013 by holding recounting in the office of the Election Tribunal. Upon recounting it was found that total ballots were 7689 out of which 347 ballots were rejected. The returned candidate polled only 3039 votes against 3160 votes polled by the respondent No. 3. Finding that the respondent No. 3 had polled maximum number of votes, the learned Tribunal passed impugned order dated 9.7.2013 formally setting aside the election of the petitioner and declaring respondent No. 3 elected from Hazipara Gaon Panchayat as President of the Gaon Panchayat. The returned candidate polled only 3039 votes against 3160 votes polled by the respondent No. 3. Finding that the respondent No. 3 had polled maximum number of votes, the learned Tribunal passed impugned order dated 9.7.2013 formally setting aside the election of the petitioner and declaring respondent No. 3 elected from Hazipara Gaon Panchayat as President of the Gaon Panchayat. The learned Tribunal ignored the fact that the total number of votes shown to have been polled in the election as on date of counting, i.e., 14.2.2013 was 8312 whereas 7689 ballots were produced by the returning officer at the time of recounting and thus as many as 623 ballots were missing. The writ petition has been filed by the original returned candidate on these facts challenging that the learned tribunal should not have declared the respondent No. 3 elected without first being satisfied as to what had happened to these 623 ballots. 5. In this writ petition, this court while issuing notice of motion on 20.7.2013 passed an order directing the jurisdictional Deputy Commissioner to produce original records to this court so as to find out as to what had happened to those 623 numbers of ballots. It appears, on such direction of this court, the Deputy Commissioner himself did not take any action but transferred the buck to an Additional Deputy Commissioner and thereupon, the Additional Deputy Commissioner (hereinafter referred to as 'the ADC') filed an affidavit in this court on 3.9.2013. In paragraph 9 of the affidavit, the ADC deposed that the counted ballots were kept in Barpeta Treasury Strong room after counting of votes. Upon receipt of requisition from the court of the learned District judge, the Election Officer was entrusted to produce all records to the Court. Accordingly, he submitted all counted ballot papers and other records in a sealed trunk with a check list before the said learned court. It is admitted in the affidavit that after recounting it came to light that the learned court received only 7689 ballots instead of 8312 and that there was a shortage of 623 ballots. So, a show cause notice was issued to concerned Election Officer. It is admitted in the affidavit that after recounting it came to light that the learned court received only 7689 ballots instead of 8312 and that there was a shortage of 623 ballots. So, a show cause notice was issued to concerned Election Officer. It is claimed in the affidavit that a thorough enquiry was conducted leading disclosure of fact that one Gaurishankar Sharma, ACS who was the Election Officer had not kept the counted ballot papers of polling station No. 4 (kha) situated at Nagarjhar Halapukhuri High Madrassa in the sealed trunk. Upon detection of the same, 614 number of ballots were traced out from the Treasury strong room. 6. I have heard Mr. S.N. Sarma, learned Senior counsel assisted by Mr. A. Sarma Advocate for the petitioners and Mr. A. K. Bhattacharyya, Senior counsel assisted by Mr. S Ali, Advocate for the respondents. 7. Mr. S. N Sarma submits that Tribunal having found that there was no explanation for short receipt of 623 ballots, it was incumbent on the tribunal to enquire as to the reason for the same and the same not having been done , apparently the recount is vitiated. Consequently, the so called recount is no recount in the eye of law and as such the same cannot be basis either for setting aside the election of the petitioner or for declaring the respondent No. 3 elected. On pointed question as to whether the petitioner had given consent for recounting, Mr. Sarma fairly submitted that as per the records consent was given and he would not dispute the same. Affidavit in reply submitted by the petitioner also does not dispute the position and accordingly it is to be accepted by this court that the writ petitioner had given consent for recounting. What would be the effect of such consent shall be discussed in the later part of this judgment. 8. Per contra, the learned Senior counsel Mr. A.K. Bhattacharyya submits that the writ petitioner having given consent for recounting and recounting having been already held resulting in a situation showing that the election petitioner was found to have polled maximum number of votes among all candidates, the learned tribunal did not commit any error in passing the judgment. 8. Per contra, the learned Senior counsel Mr. A.K. Bhattacharyya submits that the writ petitioner having given consent for recounting and recounting having been already held resulting in a situation showing that the election petitioner was found to have polled maximum number of votes among all candidates, the learned tribunal did not commit any error in passing the judgment. Now that some more ballots have been discovered and produced before the writ court for the first time, there is neither any evidence on record to arrive at a finding that these are not spurious nor is it permissible under Article 226 of the Constitution to embark on an inquiry in this regard. Under writ jurisdiction this court cannot decide the validity of those ballots produced for the first time by the Additional Deputy Commissioner and consequently the writ petition merits dismissal, the earned Senior counsel argued. 9. On these rival submissions, it is to be decided as to whether under the facts and circumstances there is any scope for interference by this court in the impugned order dated 9.7.2013 passed by the learned Panchayat Election Tribunal. 10. The Tribunal by impugned judgment and order has set aside the election of the writ petitioner and declared the respondent No. 1 elected. One part of the order is setting aside election of returned candidate and the said part is as to declaring the election petition elected. This has been done on the basis of result of recounting. Had there been a challenge to the order dated 21.6.2013 denying consent, the first task would have been to see as to whether the learned Tribunal was correct in ordering recounting without allowing the parties, more particularly, the election petitioner to establish prima facie as to whether there was any irregularity in counting for some or other reasons. Because, it is settled law that a recounting can neither be ordered at mere ipse dixit of the election petitioner without establishing a prima facie and specific case nor can the same be ordered for roving enquiry to find out irregularity. But in view of the facts stated above, it is not open at this stage even to see as to whether foundation was laid by appropriate pleading of material facts not to speak of evidence. But in view of the facts stated above, it is not open at this stage even to see as to whether foundation was laid by appropriate pleading of material facts not to speak of evidence. Consent given by the returned candidate or his counsel has wiped out all infirmities of the election petition and has brought about effect of admission under Order 12, Rule 6 of the Code of Civil Procedure which entitles a court/tribunal to allow the claim of the plaintiff /petitioner. Though recounting was the final relief prayed by the election petitioner and could not have been passed before completion of trial except final judgment, now that recounting is ordered and accordingly recounting is done, the same presupposes that the conditions precedent for recounting did/does exist. This means that the counting conducted by the Returning officer on 14.2.2013 was vitiated by irregularity and as such the moment consent order for recounting was passed on 21.6.2013, the election of the returned candidate who is the writ petitioner here, stood automatically set aside by implication. The first part of the order dated 9.7.2013 passed by the learned Election Tribunal setting aside the election of the returned candidate Msstt. Hamida Khatun, therefore, was mere consequential and as such there is no scope to interfere with this part of the impugned order. 11. Rule 44(6) of the Assam Panchayat (Constitution) Rules, 1995 has vested responsibility on the Deputy Commissioner or the Sub divisional Officer as the case may be to retain the records of election in the safe custody for one year. On his own showing, the ADC has established that the records were not kept in safe custody. At least 614 ballots were kept separately and outside sealed trunk after counting was over. Were the same withheld from production before the learned tribunal? Was it done negligently or deliberately? Do these ballots pertain to polling station No. 4 (kha) actually? There is no evidence on records to come to a conclusion in regard to these questions. The Deputy Commissioner is the Authority responsible for retention of records in safe custody. He has ignored even to file an affidavit in this case to make his position clear. It is his duty to explain under what circumstances did the ballots come out from the trunk where they should have been. The status of these ballots is essential for deciding consequence of their rediscovery. He has ignored even to file an affidavit in this case to make his position clear. It is his duty to explain under what circumstances did the ballots come out from the trunk where they should have been. The status of these ballots is essential for deciding consequence of their rediscovery. Unfortunately, no evidence was led by either side to prove the final result sheet, the ballot paper accounts Presiding officers' dairies and so on. Except the pleadings of the parties there is no other material available on records. Except for judicial notice as to alleged discovery of 614 missing ballots, there is no scope to probe further for determining the acceptability or otherwise of these ballots. 12. Be that as it may, the second part of the impugned order relates to declaring the election petitioner elected on the basis of the recounting held by the Tribunal. To decide the validity of this part, it is necessary to decide as to whether the recounting was validly and correctly done because unless the recounting was correct the result cannot be correct. Admittedly, as on the completion of recounting by the tribunal, it was clear that there were as many as 623 ballots missing. A man with ordinary prudence would immediately react that unless all the ballots are counted how the counting can be said to have been concluded. A concluded counting is necessary to decide the result of election. The margin of the election petitioner over the returned candidate after recounting being only 221, the missing ballots numbering 623 can materially affect this margin and consequently unless the Tribunal would have satisfied itself that there was no ballot missing or missing ballots are less than 221 in number, the tribunal possibly could have declared the election petitioner elected. Since, no evidence has been led by the parties and the election petition ended much before the stage of evidence had reached, there was no scope for the tribunal to hold that really 7689 votes were polled and not 8312 as shown in the records of Election Commission. In that event only alternative open to the tribunal would have been to order for re-election. 13. Now, the next question that legitimately arises as to what is to be done with these 614 ballots. In that event only alternative open to the tribunal would have been to order for re-election. 13. Now, the next question that legitimately arises as to what is to be done with these 614 ballots. If the version of the ADC is to be believed then these ballots are to be treated as ballots of the election in question. A blind construction of section 114 of the Evidence Act along with the presumption of neutrality of the Election Commission perhaps may lead to such course. But the way the District Election machinery has conducted itself in maintaining the used ballots, the same does not inspire confidence. As in this case, there is allegation of connivance between the candidate belonging to the party in power on one side and the election authorities on the other. Deliberately, or not, there is admitted lapse on the part of the authority, beneficiary being the candidate belonging to the ruling party. What is glaring and undisputed is that in the present case, the District Election Officer has failed to act in the way it supposed to have acted as prescribed under the Assam Panchayat Act, 1994 and the rules framed thereunder and so it cannot be presumed that the 614 ballots are genuine merely because they have been produced by the ADC. It cannot be overlooked that the conduct of the District Election Machinery has turned a solemn democratic exercise to mere mockery. 14. Whatever may be intention, the action of the Deputy Commissioner in grossly violating the mandate of Rule 44(6) referred to above cannot be leniently viewed. But for such conduct of none other than the Deputy Commissioner, it is really impossible to adjudicate as to whether these 614 ballots are genuine or not. No evidence having been led in this case the question of adjudication by writ court cannot arise. Had there been evidence on records and had the tribunal arrived at such finding thereon, this court in exercise of writ jurisdiction could have examined as to whether the findings are perverse or not and whether such findings are liable to be interfered with applying the power of judicial review. After consideration of all the aforesaid facts and circumstances, this court is of opinion that the writ petition is liable to be partly allowed. After consideration of all the aforesaid facts and circumstances, this court is of opinion that the writ petition is liable to be partly allowed. The impugned judgment passed by the learned Tribunal in so far as it relates to declaring respondent No. 3 (Parvin Sulatana) elected is vitiated for non-consideration of relevant aspect, namely, effect of non-counting of 623 ballots. This is because, the number of missing ballots is sufficient to materially affect the margin and hence the margin is only 221. However, the part of the impugned judgment in regard to setting aside of the election of the writ petitioner (Hamida Khatun) cannot be interfered with inasmuch as her election as stated above, stood vitiated automatically after the decision for recounting was taken on consent from her side. Consequently, the constituency is required to go for fresh poll to elect a President for Hazipara Gaon Panchayat. 15. The writ petition is partly allowed and partly dismissed. No order as to cost.