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2015 DIGILAW 1120 (GAU)

Musstt. Mafida Khatun v. State of Assam & Ors.

2015-09-01

MANOJIT BHUYAN

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1. Heard Mr. N.H. Mazarbhuyan, learned counsel representing the petitioner. Also heard Mr. P.S. Deka, learned counsel representing respondent Nos. 1, 2, 3 and 4 and Mr. T.J. Mahanta, learned senior counsel assisted by Mr. D. Mahanta, advocate, representing respondent No. 5. 2. Considering the nature of the grievance raised in this writ petition, the same is taken up for final disposal at the motion stage itself. 3. Challenge is made to the judgment and order dated 21.7.2015 passed by the Court of the learned District Judge-cum-Panchayat Election Tribunal, Nagaon in Election Petition No. 11/2013. The said election petition was initiated by the respondent No. 5 herein. By the said judgment and order, the election petition was allowed on contest with order for recounting of the ballot votes in respect of the post of President of the 69 Bogoriguri Gaon Panchayat under No. 14 Singia Zila Parishad, district Nagaon. 4. Before testing the legality and validity of the judgment and order dated 21.7.2015, it would be apposite to understand the basic requirements laid down by the Apex Court in a catena of decisions in so far as the scope of the court for scrutiny of ballot papers and order for recounting is concerned. At the outset and having regard to the law laid down by the Apex Court, an order of recounting of votes has to stand or fall having regard to the averments made hi the election petition and the materials produced in support thereof. Reference is made to the case of Udey Chand v. Surat Singh and Anr., (2009) 10 SCC 170 wherein a host of other decisions of the Apex Court have been referred to. The two basic requirements justifying the order of recounting of the ballot papers have been laid down as follows : (a) The election petition seeking recount of the ballot papers must contain adequate statements of all the material facts on which the allegation of b irregularity or illegality in counting are founded; and (b) On the edifice of evidence adduced in support of the allegations, the Election Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of an order of recount is imperatively necessary. The high degree of probability that must exist for recount of votes is primarily because of the fact that importance of secrecy of ballot papers and to guard against any circumstances that may lead to breaching of the secrecy must be maintained and the said factors must weigh in the mind of the court. To reiterate, the justification for an order of recount d of votes must be based on the materials placed by an election petitioner on the threshold before an order of recount of votes can actually be made. Unless the affected candidate is able to allege and substantiate any acceptable measure by means of evidence or contemporaneous evidence that a prima facie case of high degree of probability exists for e recount of votes, a Tribunal will not be right in ordering recount of votes as a matter of course. 5. Turning to the facts in the instant case, the petitioner along with respondent No. 5 had contested for the post of President of 69 Bogoriguri Gaon Panchayat Election held on 30.1.2013. Upon counting of the votes the petitioner was shown to have received 2161 votes, whereas the respondent No. 5 was shown to have received 2126 votes. On a difference of 35 numbers of votes, the petitioner was declared elected and accordingly, Certificate to that end was issued by the Deputy Commissioner, Nagaon on 16.2.2013. Insofar as the votes polled in the said election is concerned, the total valid votes together with the postal ballots stood at 4287 votes, out of which as many as 171 numbers of votes stood rejected. 6. Respondent No. 5 being aggrieved of the result of the election preferred election petition under section 127 read with section 129(b) of " the Assam Panchayat Act, 1994 before the Court of District Judge-cum-Panchayat Election Tribunal, Nagaon, The said petition was registered and numbered as Election Petition No. 11/2013. Statements and material facts urged in the said election petition were as follows : (i) The postal ballots were not opened by the Counting Officer in presence of the Counting Agents of the respondent No. 5. Statements and material facts urged in the said election petition were as follows : (i) The postal ballots were not opened by the Counting Officer in presence of the Counting Agents of the respondent No. 5. In fact, without opening and counting the postal ballots, the result sheet, however, revealed that it had been counted; (ii) Out of 171 votes that had been rejected, as many as 140 votes were in favour of the respondent No. 5; (iii) Some of the valid votes cast in favour of the respondent No. 5 have been wrongly pushed into the bundle of the petitioner; and (iv) Complaints made to the authorized officer who was in charge of Hall No. 6 were not responded to. The allegations were basically upon improper rejection of valid votes and improper acceptance of votes in favour of the petitioner which, actually had been cast in favour of the respondent No. 5. The said election petition was duly responded to by the petitioner by means of a written objection filed on 30.7.2013. 7. During the proceedings before the Election Tribunal and on the basis of the pleadings of the rival parties, the following issues were framed : (i) Whether there is any cause of action and whether the election petition is maintainable in its present form? (ii) Whether there was any illegality or irregularity in counting of votes as alleged in the petition? (iii) Whether the petitioner is entitled to any relief, if so what? As many as four witnesses including the respondent No. 5 were examined and to that end had also filed evidence on affidavit. Insofar as the petitioner is concerned, as many as five witnesses were examined which included one official witness. 8. It appears from the judgment and order under challenge that each of the issues were discussed and the evidence adduced in support of and against the allegations by the respective witnesses on both sides were duly taken into consideration. On a conspectus of the material facts, the statements made in the election petition as well as on the basis of the evidence that had come on record, the Tribunal arrived at the finding that the election petitioner/respondent No. 5 had succeeded to establish by preponderance of evidence that anomalies had occurred at the time of counting of votes in the election of the President of 69 Bogoriguri Gaon Panchayat. The issues framed for adjudication of the case were answered in the affirmative. Accordingly, an order was passed allowing the petition with a direction for recount of the ballot votes by the Sheristadar of the establishment in presence of both the contesting candidates and their engaged counsels. 9. On a perusal of the available records what transpires is that the election petition contained adequate statements of the material facts for seeking recount of the ballot votes. Issues for adjudication were accordingly framed, affidavits by way of evidence had also been filed and the witnesses had also been subjected to cross-examination and thereafter, on the basis of the evidence adduced, the Tribunal was prima facie satisfied that recount of ballot votes was imperatively necessary to decide the dispute and to do complete justice between the parties. A perusal of the available records also goes to show that it is not a case where any vague or bald allegation of irregularity in the counting process had been made. As noticed above, there was sufficient evidence available on records warranting a recount. At this stage, Mr. T.J. Mahanta, learned senior counsel representing respondent No. 5 makes reference to the evidence of the petitioner to show that even the petitioner did not object to opening and examination of the cancelled votes. 10. Be that as it may, and for all the reasons indicated above, the judgment and order dated 21.7.2015 passed by the District Judge-cum-Panchayat Election Tribunal, Nagaon in Election Petition No. 11/2013 do not call for any interference. The writ petition being devoid of merit is accordingly, dismissed and the judgment and order under challenge is upheld. 11. The parties are left to bear their own costs.