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2017 DIGILAW 959 (GAU)

Liakat Ali v. State of Assam

2017-07-20

SUMAN SHYAM

body2017
JUDGMENT : 1. Heard Mr. D. Mazumdar, learned senior counsel assisted by Mr. M. J. Quadir, learned counsel appearing for the petitioner. Also heard Mr. Diganta, Das, learned senior counsel assisted by Mr. G. Alam, learned counsel representing the respondent No.4. Mr. D. Nath, learned Senior Govt. Advocate, Assam, appears for respondent Nos.1 to 3. Since the respondent Nos. 5 to 7 did not contest the proceeding before the Election Tribunal and no relief is claimed against them, with the consent of the contesting parties, this writ petition is being disposed off at the motion stage. 2. In this writ petition the judgment and order dated 27.06.2017 passed by the learned District Judge-cum-Panchayat Election Tribunal, Karimganj, declaring the respondent No.4 as the elected candidate for post of President of 43 No. Panighat Gaon Panchayat by reversing the poll results has been put to challenge. 3. In the last Panchayat Election held on 12.02.2013, the writ petitioner and the respondent Nos.4 to 7 had contested the polls for the post of President of the Panighat Gaon Panchayat falling under No.9 Sadarashi Lakshmibazar Zilla Parishad in the district of Karimganj. The polling took place on 12.02.2013 and the counting of votes was held on 14.02.2013 in the campus of Karimganj College, Karimganj. The total number of votes polled in the election was 4524. After completion of the counting, the petitioner was found to have secured the highest number of 1608 votes and his nearest rival i.e. the respondent No.4 had secured 1582 votes. Accordingly, the writ petitioner was declared as the elected candidates by defeating his nearest rival i.e. respondent No.4 by a margin of 26 votes. 4. Aggrieved by the aforesaid result, the respondent No.4 as election petitioner had challenged the election of the writ petitioner by filing Misc. (Election) Case No.57/2013 before the Panchayat Election Tribunal, Karimganj, inter-alia alleging that on the date of counting there were as many as 10 counting agents deputed by the election petitioner/respondent No.4 who had later informed him that it was the respondent No.4/election petitioner who had actually received 1608 number of votes and not the writ petitioner. On the basis of such allegation the respondent No.4 had sought recounting of the ballots. 5. The writ petitioner/returned candidate had contested the Election Petition by filing written statement. On the basis of such allegation the respondent No.4 had sought recounting of the ballots. 5. The writ petitioner/returned candidate had contested the Election Petition by filing written statement. On conclusion of trial, the learned Election Tribunal had passed judgment and order dated 03.12.2014 directing recount of the ballots. The review application being Misc. (Review) No.01/2015 preferred by the writ petitioner against the order dated 03.12.2014 was rejected by the order dated 06.06.2015 as a result of which the writ petitioner had approached this Court by filing CRP No.256/2015 which was also dismissed by the judgment and order dated 08.01.2016 passed by this court. Even the Special Leave Petition being SLP No.4688/2016 preferred by the writ petitioner against the judgment and order dated 08.01.2016 came to be dismissed by the Hon’ble Supreme Court by order dated 23.02.2016. 6. With the dismissal of the SLP, the judgment and order dated 03.12.2014 had attained finality and therefore, the process of recounting of the ballots was undertaken by the Munsiff No.1, Karimganj as per the order of the Election Tribunal. Thereafter, a report dated 16.03.2016 was submitted by the learned Munsiff containing the findings pertaining to the recounting of 1266 ballots held on 15.03.2016 and 16.03.2016. The recounting of the remaining ballots could not be done since those ballot papers were not made available for counting. 7. Since the total number of votes polled in the election was 4524 and the report dated 16.03.2016 was only in respect of 1266 ballots, hence, by the order dated 21.03.2016 passed in Misc. (Election) Case No.57/2013, the learned Election Tribunal had called for a detailed report to be submitted by the Munsiff No.1 regarding recounting of all votes. As per the order dated 21.03.2016, recounting of the remaining 3238 ballots was carried out on 06.06.2016 and 07.06.2016 and a report dated 08.04.2016 was submitted in respect thereof. 8. As per the result of the re-count, the writ petitioner was shown to have polled 1570 votes in total as against 1580 votes polled by the respondent No.4. Taking note of the two reports submitted by the Munsiff No.1, Karimganj, the impugned judgment and order dated 27.06.2017 was passed by the learned Election Tribunal in Misc. (Election) Case No.57/2013 declaring that the total votes polled by the respondent No.4 was 1580 as against 1570 votes polled by the writ petitioner. Taking note of the two reports submitted by the Munsiff No.1, Karimganj, the impugned judgment and order dated 27.06.2017 was passed by the learned Election Tribunal in Misc. (Election) Case No.57/2013 declaring that the total votes polled by the respondent No.4 was 1580 as against 1570 votes polled by the writ petitioner. On the basis of such findings, the respondent No.4 was declared as the elected candidate by defeating the writ petitioner by a margin of 10 votes. 9. Referring to the impugned order dated 27.06.2017, Mr. Mazumdar, learned senior counsel representing the writ petitioner, submits that there is no dispute about the fact that the total number of votes polled in the election is 4524. However, from the reports submitted by the learned Munsiff based on the recounting of ballots, it is apparent that the total number of ballots counted by the learned Munsiff were only 4504 and as many as 20 ballots are missing. That apart, submits Mr. Mazumdar, 16 ballots were found to be un-used and another 21 ballots were treated to be doubtful votes by the learned Munsiff on the ground that those ballots did not bear the full signature of the Returning Officer but only had his initials. According to Mr. Mazumdar, 17 out of those 21 ballots treated as doubtful have been cast in favour of the writ petitioner but those were neither rejected nor taken into account while declaring the final result by the learned Tribunal by the impugned order dated 27.06.2017. Since the difference of votes between the writ petitioner and the respondent no. 4 is only 10 votes, hence, in the absence of any clear finding as regard the fate of those 21 votes, the result of the election could not have been held to be materially affected warranting reversal of the same. 10. The learned senior counsel for the petitioner further submits that there is no category of ‘doubtful’ votes under the Assam Panchayat (Constitution) Rules, and as per Rule 44(3) a ballot paper can be rejected only on the grounds mentioned therein. According to Mr. Mazumdar, none of the grounds mentioned in Rule 44(3) is attracted in the facts of the present case. Moreover, submits Mr. Mazumdar, the learned Munsiff did not have the mandate to declare any of ballots as doubtful. According to Mr. Mazumdar, none of the grounds mentioned in Rule 44(3) is attracted in the facts of the present case. Moreover, submits Mr. Mazumdar, the learned Munsiff did not have the mandate to declare any of ballots as doubtful. Since, those ballots have not been shown as rejected nor has the learned Tribunal recorded any finding as regards those ballots, the impugned judgment dated 27.06.2017, according to the learned senior counsel, was not sustainable in the eye of law and hence, liable to be set aside by this court. The learned senior counsel has also assailed the validity of the impugned order on the ground that the re-counting process having been conducted in two different dates, the same stood vitiated on such count alone meriting recounting of the ballots afresh. 11. Mr. Diganta Das, learned senior counsel representing the respondent No.4, submits that there are valid reasons as to why the recounting could not be done in one go and that is because only 1266 out of the 4524 ballots polled in the election were found when the sealed packets were opened before the learned Munsiff. He submits that in the results sheet prepared on the basis of the recounting process held on 06.06.2017 and 07.06.2017, the representative of the writ petitioner had put his signature recording his satisfaction as regards the process but it was only on 02.07.2017 that the petitioner had filed an objection in the matter after a delay of nearly a month, by way of an afterthought, only to make out a false case. Mr. Das submits that the short fall of ballots in the recounting process is only in respect of 4 ballots and if the 16 un-used ballots are added to the 4504 ballots counted by the learned Munsiff, the total figure will come to 4520 ballots as against 4524 ballots polled in the election. Although the learned senior counsel has fairly admitted that the impugned judgment and order dated 27.06.2017 does not clearly spell out as to the manner in which 21 doubtful votes have been dealt with in the recounting process, yet, by drawing the attention of this Court to the conduct of the writ petitioner, more particularly the delay on his part in raising objection in the matter, Mr. Das submits that the decision and conclusion of the learned Election Tribunal does not merit interference by this Court in the facts and circumstances of the present case. 12. I have considered the rival submissions made by learned counsel for the parties and have also perused the materials available on record. As noted above, there is no dispute at the bar regarding the fact that in the election held on 12.02.2013 there were altogether five candidates including the writ petitioner and the respondent Nos.4 to 7 and the total number of votes polled in the election was 4524. It is submitted by the learned counsel for the parties that 16 ballots had been found inside the ballot box along with the counter-foils and therefore, those have been kept out of the counting process by treating them as unused. Since the challenge made by the writ petitioner to the judgment and order dated 03.12.2014 directing re-count of the votes has attained finality, the only issue that survives for consideration in the present proceeding is as to whether the process of recounting of the ballots and the declaration of results thereof has been done correctly and in accordance with law. 13. From the materials available on record it is seen that although a direction was issued by the Election Tribunal for recount of all the ballots, yet, the Munsiff No.1, Karimganj, had received only 1266 ballots in the first lot and therefore, the re-counting process had to remain confined to only those 1266 ballots. Accordingly, recounting of those 1266 ballots were conducted on 15.03.2016 and 16.03.2016 whereafter, a report dated 08.04.2016 was submitted to the Election Tribunal. The report dated 08.04.2016 indicates that out of the 1266 ballots, the writ petitioner had polled 441 votes including 7 postal ballots; the respondent No.4 had polled 411 votes including 18 postal ballots; the respondent No.5 had polled 189 votes including 1 (one) postal ballot; the respondent No.6 had polled 80 votes including 1(one) postal ballot and the respondent No.7 had polled 43 votes. 102 rejected votes were found amongst those 1266 ballots. 14. Thereafter, recounting of as many as 3238 number of ballots appears to have been conducted by the learned Munsiff on 06.06.2016 and 07.06.2016 as per the order dated 21.03.2016 and another report dated 07.06.2016 was submitted before the Election Tribunal. 102 rejected votes were found amongst those 1266 ballots. 14. Thereafter, recounting of as many as 3238 number of ballots appears to have been conducted by the learned Munsiff on 06.06.2016 and 07.06.2016 as per the order dated 21.03.2016 and another report dated 07.06.2016 was submitted before the Election Tribunal. As per the report dated 07.06.2017 the writ petitioner had polled 1129 votes; the respondent No.4 had polled 1169 votes; the respondent No. 5 had polled 421 votes; respondent No 6 had polled 201 votes and the respondent No 7 had polled 41 votes. 256 (218+38 ) votes were found to have been rejected. 16 ballots, excluding the 256 rejected votes has been shown as “un-used” ballots. That apart, 21 votes have been shown to be “doubtful” out of which 17 had been admittedly polled by the writ petitioner and the remaining 4 were in favour of the respondent No.5. 15. By interpolating the findings of the recounting process as appearing from the two reports dated 08.04.2016 and 07.06.2016 submitted by the learned Munsiff No.1, Karimganj, the picture that emerges is given here-under in a tabular form :- Sl. No. Candidate Original result Result of recount 1. Writ petitioner 1608 1570 2. Respondent No.4 1582 1580 3. Respondent No.5 613 610 4. Respondent No.6 285 281 5. Respondent No.7 85 84 Total 4273 4125 Total number of rejected votes in original counting process = 351 Total number of rejected votes in the recounting process = 358. 16. From the aforementioned table, it is thus clear that all the 4524 ballots polled in the election were not available during the process of recounting and only 4520 ballots were ultimately counted. The report dated 07.06.2016 clearly indicates that 16 unused ballots did not form part of the 256 rejected votes nor were those ballots counted in favour of any of the candidates. It would be interesting to note herein that as per the figures emerging from the re-counting process, the total number of ballots counted in favour of the five candidates including the 358 rejected ballots adds upto 4483 ballots. Therefore, taking the figure of total votes polled in the election as 4524, there is clearly a deficiency of 41 votes. Out of these 41 votes, 16 appear to be the un-used ballots and 21 belong to the “doubtful” category which means 4 ballots are missing. Therefore, taking the figure of total votes polled in the election as 4524, there is clearly a deficiency of 41 votes. Out of these 41 votes, 16 appear to be the un-used ballots and 21 belong to the “doubtful” category which means 4 ballots are missing. It, therefore, becomes evident on the face of the record that those 21 votes marked as “doubtful” have not been counted in favour of any of the candidates in the recounting process. 17. From the discussions made here-in before, it is apparent that the 21 ballots marked as “doubtful” out of which, the writ petitioner has polled 17 votes, had not been counted in favour of the petitioner in the re-counting process. From a reading of the impugned order dated 27.06.2017, it is also not clear as to the manner in which those 21 votes have been dealt with by the learned Tribunal. There is also nothing on record to establish as to the reason why those 21 votes had been marked as doubtful. 18. It is to be noted here-in that those 21 votes have neither been rejected by the learned Munsiff nor by the Election Tribunal but has merely been marked as doubtful. Therefore, those votes cannot be treated as rejected. If the 17 votes polled by the writ petitioner out of those 21 “doubtful” votes are counted in his favour, then it would be the writ petitioner who will emerge as the winning candidate even after the re-counting of ballots. In other words, if the 21 doubtful ballots are treated as valid votes, then 17 of those would have to be counted in favour of the writ petitioner in which event, the total number of votes polled by the writ petitioner would go up to 1587 i.e. higher than the figure of 1580 which is shown to have been polled by the respondent No.4. 19. In the above context, the findings recorded by the learned Tribunal in paragraph 8 and 9 of the impugned judgment and order dated 27.06.2017 would be relevant and are therefore, extracted here-in below :- “8. The aforesaid showed the following position so far as the number of valid votes secured by the contestants in the said election is concerned. 19. In the above context, the findings recorded by the learned Tribunal in paragraph 8 and 9 of the impugned judgment and order dated 27.06.2017 would be relevant and are therefore, extracted here-in below :- “8. The aforesaid showed the following position so far as the number of valid votes secured by the contestants in the said election is concerned. The Petitioner : 1580 The principal respondent number 1 : 1570 The pro-forma Respondent number 5 : 610 The Pro-forma Respondent number 6 : 281 The Pro-forma Respondent number 7 : 84 The two reports showed that the total number of 102 + 256 = 356 ballots were found rejected in both the counting done by him. The reports also shows that 21 numbers of doubtful votes and 16 numbers of unused ballots were also found. This shows that the total number of ballot papers handled by the learned Munsiff number 1, Karimganj was 4520 as against 4524 number of votes stated to have been used in the said election. 9. Vide petition number 4 dated 02.07.2016, the Principal Respondent number 1 raised the point that the total number of ballots used in the Gaon panchayat election was 4524 and that the total number of ballots handled by the learned Munsiff number 1, Karimganj was 4504 which, according to him, means that there was a shortage of 20 number of ballot papers. In the said petition, he has raised the issue that on the box of the ballot papers produced on the 2nd occasion on direction by this Tribunal, the boxes were found not intact, and that loose packets of cloth were seen which meant that the trunk containing ballot boxes was mishandled. However, the report of the learned Munsiff number 1 dated 13.06.2016 clearly states that the trunk was found sealed, and after unsealing the trunk two bags containing ballot papers were found therein. The report clearly states that the same was unsealed in presence of the concerned parties and their learned counsels. The report of the learned Munsiff number 1, does not show that any objection with regards the trunk not being in a sealed condition was raised by the Principal Respondent No.1. The petition number 04 dated 02.07.2016 also does not show that any objection was raised and disallowed in the said regard. The report of the learned Munsiff number 1, does not show that any objection with regards the trunk not being in a sealed condition was raised by the Principal Respondent No.1. The petition number 04 dated 02.07.2016 also does not show that any objection was raised and disallowed in the said regard. As such, the objection at the belated stage regarding unsealed trunk of the ballot papers having been produced before this Court and then to the learned Munsiff number 1 at Karimganj cannot be accepted and is rejected.” 20. A plain reading of the observations made in the judgment and order dated 27.06.2017 leaves no manner of doubt that the results of the poll has been reversed by the learned Tribunal without recording a proper finding as to fate of the 21 votes. Since the difference of votes polled by the two candidates is only 10, hence, these 21 votes would have a decisive impact on the final outcome of the results. As such, the failure on the part of the learned Election Tribunal to clearly record a finding on the 21 votes, in my opinion, would have a vitiating effect on the decision and conclusion drawn by the learned Tribunal. 21. Coming to the plea of the writ petitioner as regards the piecemeal recounting process adopted by the learned Munsiff, since the petitioner had participated in the process without raising any objection, I am not inclined to entertain the said plea of the petitioner on the point of validity of the re-counting process merely on the ground that the same had been done in a piecemeal manner. 22. For the reasons sated here-in above, I am of the considered opinion that the impugned judgment and order dated 27.06.2017 is not sustainable in the eye of law and the same is accordingly set aside. 23. The matter is remanded back to the learned Election Tribunal to pass a fresh order after recording a clear finding as to the fate of the 21 votes marked as “doubtful”. In doing so, the learned Tribunal shall be at liberty to direct a fresh re-count, if the same is found to be necessary in the facts and circumstances of the case. Considering the submission of Mr. In doing so, the learned Tribunal shall be at liberty to direct a fresh re-count, if the same is found to be necessary in the facts and circumstances of the case. Considering the submission of Mr. Das that the term of the present Panchayat body will come to an end in the month of December, 2017, it is hereby observed that an attempt be made to complete the exercise, as directed by this Court, as expeditiously as possible, preferably within a period of 30 days from the date of receipt of a copy of this order. 24. Before parting with the records, it would be pertinent to mention here that this writ petition was initially listed for motion hearing on 06.07.2017 and was fixed again on 12.07.2017 and thereafter on 17-07-2017. Since, the order dated 27.06.2017 had not been implemented, hence, a prayer was made by the petitioner’s counsel for suspending the operation of the same. However, taking note of a categorical assurance given by the learned Senior Counsel Mr. Das to the effect that his client would not take oath till the next date, no interim order was passed by this court. Today when the matter was called up, Mr. Das submits that, going against the advice of the counsel, his client has taken oath of office and has taken over charge. Mr. Das has tendered apology on behalf of his client for the above conduct and has requested this court not to initiate any contempt proceeding against the respondent No.4. Although, the conduct of the respondent No 4, prima facie, merits initiation of a contempt proceeding, yet, considering the fact that there was no formal order from the court restraining the said respondent and having regard to the peculiar facts of the case, taking note of the apology tendered by the learned senior counsel, this court refrains from initiating any contempt proceeding against the respondent No.4 but cautions him not to repeat such conduct in the future. It is, however, made clear that until such time the matter is considered afresh and a consequential order is passed by the learned Election Tribunal, the writ petitioner would continue to function as the President of 43 No. Panighat Gaon Panchayat for the present term. 25. Having regard to the facts and circumstances of the case, there would be no order as to cost.