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2015 DIGILAW 438 (GAU)

Hamida Khatun v. State of Assam & Ors.

2015-04-08

K.SREEDHAR RAO, P.K.SAIKIA

body2015
K. Sreedhar Rao; ACJ.:-- The election for the 98-Hazipara gaon panchayat in Barpeta district was held on February 6, 2013. Appellant and the contesting respondent had contested the election. Appellant was declared elected. The private respondent filed an election petition (No: 13/2013) before the District Judge, Barpeta, who is the Tribunal under the Assam Panchayat Act, 1994 to decide election petitions. 2. In the election petition a prayer for recount was also made. The appellant, who is the contesting respondent in the petition before the Tribunal, conceded to recount. In the recount held the contesting respondent was found to have secured more votes than the appellant herein, therefore the contesting respondent was declared elected in the recount. Against the said order the writ petition [WP(C) No.4023/2013] is filed by the appellant. 3. The learned single Judge dismissed the writ petition. Aggrieved by the said order the present appeal is filed. 4. Heard the counsels for the appellant and the officials who are involved in the election process. 5. It reveals that in respect of 4-kha polling booth 623 ballot papers were missing and they were not presented for recount before the Tribunal. 6. In this appeal the Govt. Advocate appearing for the returning officer has stated that due to inadvertent mistake 623 ballot papers for the 4-kha polling booth were kept separately and could not be produced for recount before the Tribunal. The said ballot papers of 4-kha booth are produced now. Here again there appears to be discrepancy in the statement. According to one version the total ballot papers polled were 623; but later on, it is stated that the ballot papers polled were 614. Before this Court only 614 ballot papers are produced. This Court directed the Registrar General to conduct recount, with the following directions. "The Registrar General is directed to make the count of 614 ballot papers, which were found missing and not considered for counting before the District Judge, Barpeta, who is the Presiding Officer of the Election Tribunal. The counting should be made in presence of the parties and the advocates, with the assistance of the Election Officer. The Registrar General is also directed to verify the genuineness of the 614 ballot papers required to be counted in comparison with other undisputed ballot papers. The Registrar General, after counting, shall submit the report tomorrow, i.e., 08.04.2015. The counting should be made in presence of the parties and the advocates, with the assistance of the Election Officer. The Registrar General is also directed to verify the genuineness of the 614 ballot papers required to be counted in comparison with other undisputed ballot papers. The Registrar General, after counting, shall submit the report tomorrow, i.e., 08.04.2015. The Deputy Commissioner, who is present before this Court is discharged and his further presence is dispensed with. Post the matter tomorrow (08.04.2015) along with the report of recounting". 7. The Registrar-General after conducting the recount has filed the following report. "As per order of the Hon'ble Court given to the undersigned in the open court on 07.04.2015 in connection with WA No.30/2014, I have opened the sealed box containing 614 number of ballot papers as well as the sealed box containing already counted Ballot Papers in presence of Mr. M. Alamgeer, learned Advocate for the appellant, Md. S. Ali, learned Advocate for the respondent and Smt. B. Goyel, learned GA, Assam. I have counted the Ballot Papers in presence of the aforesaid advocates including the Election Officer, Barpeta, Sri Hemanta Bhuyan. I have also taken assistance of Mr. M. A. Ali, Registrar (Vigilance) of the Gauhati High Court. I have also examined the genuineness of the Ballot Papers in presence of the above named persons comparing them with the already counted the Ballot Papers kept in another sealed box. Findings of such examination are noted below:- (i) I have counted the Ballot Papers containing in the sealed box which were not counted earlier in respect of polling station No.4 Kha of 98 No. Hazipara Gaon Panchayat and found that there are 614 number of Ballot Papers. It is found that the candidates secured votes as indicated below against their names :- (i) Saleha Khatun - 88 (ii) Hamida Khatun - 331 (iii)Parvin Sultana - 124 (iv) Saniyara Khatun - 03 (v) Rejected votes - 68 Total number of votes - 614 (1) While examining the genuineness of the Ballot Papers, it is found that the Ballot Papers are genuine but the signatures of the officers on the reverse of the Ballot Papers appear to be of more than one person. For example, on the reverse of some of the Ballot Papers the signature of one Abdul Khaleque Miah is there and in some of the Ballot Papers the signature of Amir Chand Talukdar is there against the same distinguishing mark i.e., 98-4B/11 The said distinguishing mark is on the reverse of each of the Ballot Papers." 8. It is seen that there are irreconcilable discrepancies. There is no proper explanation as to why the total ballot papers polled were said to be 623 and not to be of 614. Why there was not a definite submission with regard to number of ballot papers polled at the 4-kha booth? On the obverse of 614 ballot papers, the signatures and endorsements are not made by one person. For this, it is explained that in some of the ballot papers, the Returning Officer has signed and in some ballot papers, Polling Officers have signed. 9. The counsel for the appellant has strenuously contended that the mistakes committed by the polling officials and the officials involved in the counting unit resulted in injustice to the appellant and she is not a party to any of those mistakes. Therefore the election declared in the first count is to be upheld and the appellant is to be declared elected. 10. It is just and necessary that the ballot papers polled should be signed and certified by the presiding officer. The explanation of the Returning Officer that the polling officials have signed on the back of the ballot papers is not convincing, and it is not in accordance with the requisites of the rules and procedures for conduct of elections. That apart there appears to be total negligence in not keeping all the ballot papers of 4-kha booth in one sealed trunk. In view of the said discrepancies, serious doubt arises with regard to the sanctity of the ballot papers polled at the 4-kha booth. In that view of the matter the order of the learned single Judge appears to be just and proper. Accordingly the appeal is allowed. 11. The election process should be given utmost sanctity. It may be that the appellant has no role in the mistakes committed by the officials. Nonetheless, mistakes committed are of grave nature which goes to the root of the matter creating great suspicion regarding the expression of the will of the electorate. Accordingly the appeal is allowed. 11. The election process should be given utmost sanctity. It may be that the appellant has no role in the mistakes committed by the officials. Nonetheless, mistakes committed are of grave nature which goes to the root of the matter creating great suspicion regarding the expression of the will of the electorate. In that view of the matter the order of the learned single Judge is modified. Repelling should be only confined to the 4-kha booth. Accordingly the writ appeal is partly allowed.