High Court
Case Details
WP(C) 4825/2013 BEFORE THE HON’BLE MR.JUSTICE N. CHAUDHURY JUDGMENT AND ORDER (CAV)
Facts
Two orders passed on 03.07.2013 and 05.08.2013 in Misc. (Election) Case No. 2 1 of 2013 by the learned District Judge, Karimganj, as Panchayat Election Tribun al have been challenged in this writ petition by the returned candidate. By ord er dated 03.07.2013, the learned tribunal ordered for recounting of ballots in r egard to election to the post of ward member of the No.6 Lalarachak Ward under N o.60 Jatkapan - Borkatpur Gaon Panchayat in Karimganj district and by order date d 05.08.2013, election of the returned candidate as ward member in the said ward was set aside declaring election petitioner elected in her place on the basis o f the result of the re-counting. 2. Election to Gaon Panchayats in the district of Karimganj was held on 12. 02.2013. The electors of Jatkapan -Borkatpur Gaon Panchayat being one of the Gao n Panachayats of the said district also went on poll to elect their President, t he AP Member and the ward members. The writ petitioner was a candidate for the p ost of ward member in No. 6, Lalarchak ward of the said Gaon Panchayat. There we re altogether 8 candidates on the fray for the said post. After counting was ove r, it was found that the petitioner and the respondent No.1 both polled 71 vote s each leaving the 6 other candidates behind. Applying the Rule 45 of the Assa m Panchayat (Constitution) Rules, 1995 lot was drawn by toss of a coin by the Di strict Returning Officer and luck favoured the election petitioner. Consequentl y, he was declared elected on 20.02.2013 by the District Returning Officer as wa rd Member of Lalarchak ward. The petitioner was administered oath on 26.03.2013 and thereafter, she was elected as Vice-President of the Gaon Panchayat on the s ame day by popular mandate of the members in the first meeting of the Gaon Panch ayat. She has been discharging function as vice president of the Gaon Panchayat since then. 3. In the meantime, on 22.2.2013 the respondent No.1 filed an election peti tion under Section 129 of the Assam Panchayat Act, 1994, before the learned Dist rict Judge, Karimganj, praying for necessary orders for recounting of all the ba llots of the said ward member election and after counting to declare that the el ection petitioner to have duly elected as ward Member of the Lalarchak ward. Pra yer was also made for setting aside election of the petitioner. The said electio n petition was numbered as Election Petition No.21 of 2013. All the candidates w ho participated in the election for the post of the member of the said ward were made parties apart from the State of Assam, the District Returning Officer and the Authorized Officer. In pargraph-3 & 6 of the election petition, the petition er disclosed the grounds for recounting. In Paragraph-3, it is pleaded that the Assistant Returning Officer (for short, ’the ARO’) of the counting hall while pr eparing the result sheet wrongly made entry of one vote out of 72 votes polled b y the election petitioner in favour of the returned candidate to make their tall y equal although in reality the election petitioner had secured 72 votes and the returned candidate had secured only 70 votes. In paragraph - 6 it was pleaded t hat the election petitioner came to know after having seen the result sheet that there were so many anomalies in the counting. She noticed that her one vote was reduced and the same was added to the account of the returned candidate. She al so claimed to have found that the total votes polled in the center was only 377 and not 443 and that there was no rejected vote although actually as many as 66 ballots were rejected. The election petitioner also denied that there was not an y toss at all and complained that the official respondent entered into collusion with the returned candidate for preparing the result sheet illegally and there by declaring the returned candidate as elected member of the ward. 4. The returned candidate (writ petitioner herein) on being summoned submit ted her written statement denying the allegations in its entirety. The allegatio ns that the election petitioner had polled 72 votes and the returned candidates polled only 70 votes and that the ARO while preparing the result sheet wrongly m ade entry of 1 vote of the writ petitioner in the account of the returned candid ate to show that both of them secured 71 votes, were specifically denied in para graph-7 of the written statement. The allegation that there was no toss is also specifically denied in Paragraph-10 of the written statement. 5. The official respondents No. 1-3 jointly filed another written statement . In paragraph-6 of the said written statement, the allegation of election petit ioner securing 72 votes and the returned candidates securing 70 votes were denie d. In paragraph-9 of the written statement, the allegation of the wrong entry by the ARO while preparing result sheet was also specifically denied. It was plead ed therein that out of 377 number of ballots after rejecting 66 ballots, the ele ction petitioner and the returned candidate were found to have secured 71 votes each and accordingly result sheet was prepared. It was also pleaded that the aut horized officer held toss and thereupon, the returned candidate was declared ele cted by issuing Return of election in Form No. XXX (A) on 15.02.2013. It was fur ther pleaded that there is no provision for recounting votes under the Assam Pan chayat Act, 1994 (hereinafter referred to as ’Act’) and the Assam Panchayat (Con stitution) Rules, 1995 (herein after referred to as ’the Rules’). 6. Upon such rival contention of the parties, the learned Tribunal proceede d to try this case whereupon election petitioner examined two witnesses includin g herself and Exhibited-4 documents. The returned candidate did not examine any witness and did not lead any evidence. Thereafter, by order dated 13.06.2013 the case was fixed on 03.07.2013 for hearing. On the said date after hearing both t he sides, the learned District Judge ordered for recounting. 7. On 05.07.2013 the ballot boxed were called for and ultimately on 02.08.2 013 recounting was held under the supervision of the learned Civil Judge on the basis of which the learned Court passed final order on 05.08.2013 setting aside election of the returned candidate and declaring the election petitioner elected . These two orders have been brought under challenge in the present writ petitio n. 8.
Legal Reasoning
12. In the case of Mahendra Pratap vs. Krishna Pal reported in (2003) 1 SCC 390 the Hon’ble Supreme Court held that for warranting recounting, a foundation must be laid in the pleadings and it should be of such magnitude so as to mater ially affect the result of the election. In the case of Ramsevak Yadav (Shupra) the Hon’ble Supreme Court held that adequate statement as to material facts and pleading is a must so as to prima facie satisfy the Court that in order to decid e the dispute, inspection of ballot is necessary. In M. Chinnaswamy vs. K.C. Pa laniaswami reported in (2004) 6 SCC 331 (P.R. 28) the Hon’ble Supreme Court reit erated the same law. To warrant an order of recounting, prima facie proof of err or complained of must be given and it has to be shown further that errors are of such magnitude that they materially affect the result of election [ see Shraddh a Devi vs. K.C. Paul reported in (1982) 3 SCC 389]. In a case where pleadings do not contain material facts and necessary particulars, any amount of evidence le d by the election petitioner would be insufficient in view of the facts that no evidence can be led beyond pleadings [see T.H. Musthaffa vs. M.P. Verghese (199 9) 8 SSC 692].Finally, in the case of Chandrika Prasad Yadav vs state of Bihar r eported in (2004) 6 SCC 331 the Hon’ble Supreme Court summarized the law regardi ng recounting at paragraph 20 thereof as follows: (cid:28)20. It is well settled that an order of re-counting of votes can be passed when the following conditions are fulfilled: A prima facie case; Pleading of materials facts stating irregularities in counting of votes; A roving and fishing inquiry shall not be made while directing re-counti i) ii) iii) ng of votes; and An objection to the said effect has been taken recourse to. (cid:29) iv) 13. It is thus clear that in appropriate case an election tribunal can defin itely issue direction for inspection of ballot boxes and to recount the ballots. But in dealing with such question the importance of secrecy of the ballot paper s cannot be ignored and it is always to be borne in mind that adequate safeguard for examination of the validity or invalidity of the votes and for proper count ing has to be maintained. Considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or f ishing enquiry in the ballot boxes so as to justify their claim that the electio n of the returned candidate is void. For that, adequate statement of materials f acts has to be made in the election petition and evidence is to be led on the ba sis of such pleadings. If upon such material facts and supporting evidence the t ribunal is prima facie satisfied that in order to decide a dispute and to do com plete justice between the parties recounting is necessary only at that event an order for recounting can be made. 14. The standard for recounting under the election law in England is also o f the same nature. Law of recounting has been dealt with in the Halsbury’s laws of England (3rd Edition Vol.14 page 310) at Para 559. It is observed in the said paragraph on the basis of decision in Berwick case (1880) that a recount is no t ordered as of right, but on evidence of good grounds believing that there has been a mistake on the part of the returning officer. This paragraph further requ ires that the petition for recount must contain good grounds. The aforesaid judg ments of the Hon’ble Supreme Court are also couched in the same scheme. 15. On the basis of the aforesaid principles governing recounting, let us ex amine as to whether under the facts pleaded in this case and evidence led a prim a facie case for recounting has been made out or not. Although in the pleadings at Paragraph-3 of the election petition, the election petitioner complained of a ction on the part of the Assistant Returning Officer in course of preparing the final result sheet so as to add one vote from her tally to the account of the re tuned candidate on the further allegation that she had really scored 72 votes an d the return candidate had got only 70 candidates, yet no evidence has been led to prove such allegations. The learned Tribunal on the other hand, relied on the only ground that there is a supposed contradiction between Exhibit-3 and Exhibi t- 4 in regard to total number of votes polled. This observation is based on the recital made in Exhibit-3. I have perused the Exhibit-3. It is a piece of white paper on which the presiding officer of the polling station has allegedly writt en that total number of votes of the polling station is 560 and that total casti ng vote was 443. Below this writings there is a signature of one Kalyan Das desc ribing him to be presiding officer. Neither said Kalayan Das has been examined n or are the contents proved. It is established law that merely by placing a docum ent in record and marking it as exhibit the same does not become admissible unle ss the document is duly proved and the contents are proved in accordance with la w. Be that as it may, Ext.3 is not in conflict with Ext.4 as stated in the order dated 3.7.2013. Ext. 3 shows that number of total votes cast is 443. Obviously, total votes cast include not only the valid votes but also the rejected ballots . As per the averments made in the written statement the rejected votes were 66 in number. Ext.4 shows only the total number of valid votes as 377. These 377 ba llots when added with 66 rejected ballots the total number of votes cast comes t o 443 which is exactly the number shown in Exhibit-3. So, the finding of the lea rned tribunal that the Exhibits-3 & 4 are contradictory to each other is pervers e. The other finding in the said impugned order that defendants number 1 to 4 we re in collusion with each other and it has been established by evidence. The evi dence available on records does not in any way show as to how such finding of th e tribunal is justified. The learned Senior Counsel appearing for the respondent has admitted in his usual fairness that the said finding as to collusion of res pondents No. 1 to 4 is not based on materials on record. Thus both the findings in support of which recounting was ordered having been found to be perverse the order dated 3.7.2013 cannot stand and as such the same is set aside. Once, the order of recount is found to be unsustainable, the question ar 16. ises as to whether the result found after recounting is done can be sustained. S uch a situation had arisen in the case of P.K.K. Shamsuddeen v. K.A.M. Mappilai Mohindeen reported in (1989)1 SCC 526. In the said case also the Panchayat Elect ion Tribunal after recording the evidence of all the candidates and the ARO orde red for recounting of ballots. Consequently there was a recounting and the candi dates accepted the correctness of the recounting and signed a memo to that effec t before the Tribunal. On the basis of the said result arising from the recounti ng, the petitioner in tthat case pressed for declaration that he had been duly e lected to the post of the president of the Panchayat. The respondent No. 1 there in, however, prayed for direction to hold fresh poll. The Tribunal declined to o rder re-election and declared the petitioner to have been duly elected. That ord er of the Tribunal was challenged before the High Court by way of Civil revision and the High Court allowed the revision holding that the order for recounting i tself was illegal. The order of High Court being challenged, the Hon’ble Supreme Court after discussing the law of recounting held in Paragraph 13 of the afores aid judgment that the settled position of law is that the justification for an o rder for examination of ballot papers and recount of votes is not to be derived from hindsight and by the result of the recount of votes. On the contrary, the j ustification for an order of recount of votes should be provided by the material s placed by an election petitioner on the threshold before an order for recount of votes is actually made. The Hon’ble Supreme Court observed that the reason fo r such salutary rule is that the preservation of the secrecy of the ballot is a sacrosanct principle which cannot be lightly or hastily broken unless there is p rima facie genuine need for it the Hon’ble Supreme Court, therefore, upheld the order of the High Court where by the Tribunal’s order was set aside and the orig inal election result was restored. Here in the present case a similar situation has arisen. There was an order of recount followed by recounting and consequentl y tribunal set aside the election of the returned candidate and declared the ele ction petitioner elected on the basis of the result of recounting. Once the caus e goes, the effect cannot continue to remain. The order of recount having been f ound unsustainable the consequence of recounting itself becomes legally unsustai nable inasmuch as result of recounting is consequent to the order of recounting. Once recounting is invalid, all subsequent events incidental thereto are bound to go and status quo ante as on the date of order of recount must prevail. The n et effect is that the final order passed by the tribunal on 05.08.2013, is also unsustainable being only an order of consequential nature incidental to order da ted 03.07.2013. Accordingly, order dated 05.08.2013 is liable to be set aside an d it is accordingly set aside. 17.
Arguments
I have heard Mr. D. Mozumdar, learned counsel for the petitioner and Mr. H.R.A. Choudhury, learned Senior Counsel assisted by Mr. F. H. Laskar, learned counsel for the respondent No.1. I have also heard Mr. B. Chetri, learned Govern ment Advocate appearing for respondents No. 2 to 4. 9. Mr. D. Mozumdar would argue that the order dated 03.07.2013 directing re counting itself being invalid the order dated 05.08.2013 on the basis of the res ult of such recounting is also vitiated. According to the learned counsel, the e lection petitioner did neither plead required material facts to make out a prima facie case for recounting nor did she lead any evidence to prove the allegation s made in paragraphs-3 and 6 of the election petition and in the process the san ctity of ballots have been violated in gross derogation of the law holding the f ield. According to the learned counsel, the grounds for recounting as stated in the election petition more particularly in paragraphs-3 & 6 thereof, are insuffi cient to establish a prima facie case for recounting. The impugned order dated 03.07.2013 was nothing but allowing a roving inquiry and in any view of the matt er the order dated 03.07.2013 is vitiated. The learned counsel has placed relian ce on the judgment of the Hon’ble supreme court in the case of P.K.K. Shamsudeen vs. KAM Mappillai Mohindeen and Others reported in (1989) 1 SCC 526, Dr. Jagjit Singh vs. Giani Kartar Singh reported in AIR 1966 SC 773, Ram Sewak Yadav vs. Hussain Kamil Kidwai and Others reported in AIR 1964 SC 1249, V.S. Achuthanand an vs. P.J. Francis and Another reported in (2001) 3 SCC 81, Chandrika Prasad ya dav vs. State of Bihar and Others reported in (2004) 6 SCC 331, Kalyan Kumar Gog oi vs. Ashutosh Agnihotri and Another reported in (2011) 2 SCC 532 & Mahendra Pa l vs. Ram Dass Malanger and Others reported in (2002) 3 SCC 457. 10. Per contra, Mr. H.R.A. Choudhury, learned Senior Counsel, submits that o rder dated 03.07.2013 does not suffer from any infirmity. The said order shows t hat as per Exhibit-3, total casting of vote was 443 out of 560, where as in the final result vide Exhibit- 4, it has been shown as 377 only. This according to t he learned Senior Counsel is sufficient to order for recounting. The original re cords of the case were called for by this Court by sending special messenger and the aforesaid two Exhibit-.3 & Exhibit-4 are perused from the records. Pointing out to Exhibit-3 the learned Senior Counsel submits that the said document is a certificate given by the Presiding Officer of the concerned police station and it shows that total voter of the polling station was 560 and total number of vot es cast was 443. In reply to the said argument, Mr. D. Mozumdar, learned counsel for the petitioner, submits that the Exhibit-3 is no document in the eye of law inasmuch as it is not proved from whose custody it has been brought on record. If it was a document in custody of the District Election Officer, the same ought to have been called for but no such order or application is available in record s. Moreover, P.W.1 who has tendered these documents into record could not have p roved the contents thereof without getting the Presiding Officer examined who is the author of the documents. Moreover, even if the same is taken at face value then also no irregularity is proved inasmuch as if 377 valid votes are added to 66 rejected votes, total tally comes to 443 and as such Exhibit-3 is not in conf lict with Exhibit- 4 in any way. On the aforesaid pleadings as well as evidence on record the first quest 11. ion that falls for consideration is, whether the order of recount was validly ma de by the learned tribunal on 3.7.2013? Conversely, it is to be seen whether the pleadings and the materials available on record make out a prima facie case for recounting. Naturally, this would take us to the question as to when a recounti ng can be ordered. Law in this regard is well settled by umpteen number of cases of the Hon’ble Supreme court. Some of them are mentioned herein below.
Decision
In the result the writ petition succeeded. No order as to costs.