Judgment · High Court · 2012

Heard Mr. Choudhury, learned counsel for the petitioner and Mr. Biswas, learned counsel appearing for the respondent No.1. Also heard Mr. Das, learned State co unsel appearing for the respondent Nos.2 and 3. The petitioner, who is the returned candidate and respondent in [2] Misc. Case No.3/2008, filed the Election Petition No.1/2008, by the present peti tion has challenged the order dated 6th September, 2008 passed by the learned Di strict Judge, Morigaon rejecting the prayer of the petitioner for dismissal of t he election petition on the ground of non discloser of cause of action, however, allowing the prayer of the petitioner for striking out the pleadings in paragra ph-4 of the election petition. [3] Mr. Choudhury, learned counsel submits that it is evident from p aragraph-15 of the impugned order dated 6th September, 2008 that the Election Tr ibunal wants to make a roving enquiry without their being any basis in the elect ion petition alleging any anomalies in the counting in respect of the other poll ing stations, though initially 355 votes polled by the election petitioner was w rongly counted in favour of the returned candidate, which, was subsequently corr ected during recounting and thereafter, the returned candidate was declared as e lected he having secured 140 votes more than the election petitioner.

Mr. Choud hury submits that it is a settled position of law that unless the material facts are pleaded and material particulars are supplied in support of the allegation so as to entitled the election petitioner to get an order for recount, the elect ion petitioner cannot be allowed to make roving enquiry to fish out the evidence for the purpose of directing the recounting. Mr. Choudhury submits that the ob servation of the Election Tribunal in paragraph-15 would amount to allowing the election petitioner to make a roving enquiry and lead evidence even in the absen ce of any pleadings in that regard. Mr. Choudhury, therefore, submits that the observation made in paragraph-15 may be set aside. It has also been submitted t hat since admittedly the learned District Judge, i.e. the Election Tribunal, con stituted under Section 127 of the Assam Panchayat Act, 1994 (in short, (cid:28)the 1994 Act (cid:29)), was absent on the day when the election petition was presented, there wa s no proper presentation of the election petition, the same having been presente d in the office of the learned District Judge and as such, the election petition deserves to be dismissed being not presented in the manner prescribed. [4] Mr.

Biswas, learned counsel appearing for the respondent No.1, o n the other hand, has submitted that since the learned District Judge, who was a ppointed as Election Tribunal by the State Government under Section 127 of the A ct was absent, the election petition was presented in the office of the learned District Judge. It has been submitted that as no particular manner of presentati on has been prescribed in the Act or the Rules framed thereunder, the presentati on of the election petition in the office of the learned District Judge would am ount to presentation before the Election Tribunal and hence, the contention of t he learned counsel for the petitioner in that regard deserves to be rejected. Relating to the contention of the learned counsel for the petiti [5] oner of allowing the election petitioner to make roving enquiry, in view of the observation made in paragraph-15 of the impugned order, it has been submitted by Mr.

Biswas that it is a settled position of law that the election petitioner ca nnot be allowed to make roving enquiry and he will lead evidence on the basis of the pleadings in the election petition only. The learned counsel further submi ts that in any case, the observation made by the Election Tribunal in paragraph- 15 of the impugned order would naturally not be taken into consideration while d eciding the election petition filed. Section 129 of the 1994 Act provides that no election to any Pan [6] chayat shall be called in question except by an election petition presented with in 60(sixty) days, from the date of declaration of election results, to the Trib unal constituted under Section 127, which provides for constitution of the Elect ion Tribunal by the State Government, on the recommendation of the High Court, t o dispose of all direct election petitions challenging election under the provis ions of the said Act.

It also provides that the jurisdiction, powers and functi ons and the headquarters of the Tribunal shall be decided by the Government in c onsultation with the High Court, except as provided in Section 10 of the Act. [7] The Government of Assam vide notification dated 30th September, 2000 notified the Election Tribunals to decide the election disputes. For the d istrict of Morigaon the learned District Judge was appointed as Election Tribuna l. By the said notification the procedure required to be followed by the Tribun al has also been notified, which provides that the election petition to be filed under Section 129 of the Act shall be in the form of a memorandum containing th e grounds or the reasons for being aggrieved and the same has to be accompanied by as many as copies as may be required to be served upon the opposite parties. The Election Tribunal on receipt of the application alongwith the copies thereo f is required to issue notices to the opposite party/opposite parties requiring him/them to appear and file written statement on such date as may be specified i n the notice, which shall be accompanied by copy of the election petition. [8] Rule 54 of the Assam Panchayat (Constitution) Rules, 1995 (in sh ort, (cid:28)the Rules (cid:29)), framed in exercise of the powers conferred by Sub-Section (1) of Section 141 of the Act provides that as regards other matters not provided i n the Rules, the matter shall be guided by the relevant Rules under the Represen tation of Peoples Act, 1951 (in short, (cid:28)1951 Act (cid:29)).

According to the learned co unsel for the petitioner, the provision contained in Section 81 of the 1951 Act read with Rule 1 of Chapter-VIII(A) of the Gauhati High Court Rules, which provi des for the manner of presentation of election petition, shall be applicable, th ere being no Rules relating to the presentation of election petition under the 1 994 Act prescribed. [9] As noticed above, Section 127 of the Act empowers the Governmen t to decide about the jurisdictions, powers and functions and the headquarters o f the Election Tribunal in consultation with the High Court. Vide notification dated 30th September, 2000, the Government of Assam while constituting the Panch ayat Election Tribunal with the territorial jurisdiction, has also laid down the procedure to be followed by the Tribunal in deciding an election petition. [10] Neither any manner of presentation nor the officer before whom s uch election petition to be presented is prescribed either in the Act or in the notification or the Rules framed in that regard.

Section 81(1) of the 1951 Act also does not provide for the manner of presentation of an election petition an d before whom the same is to be presented, to constitute a valid presentation. The provisions of Rule-1 of Chapter -VIII(A) of the Gauhati High Court Rules, ho wever, has provided for presentation of the election petition under Section 80-A of the 1951 Act, before the Stamp Reporter, which provision cannot be made appl icable to the presentation of the election petition under the provisions of 1994 Act, the said Rule being applicable to the presentation of the election petitio n under the 1951 Act to the High Court only. In the absence of any manner of su ch presentation, it cannot be said that the election petition must be personally presented to the learned District Judge himself only, so as to constitute a val id presentation. Such a contention, as raised by the learned counsel for the pe titioner, cannot be accepted, as there may be situation like the present case in hand, when the learned District Judge, who is appointed as Election Tribunal, i s absent and in that case, can it be said that no election petition can be filed by a candidate, who is aggrieved by the election of the returned candidate, bec ause of the absence of the learned District Judge?

The answer obviously is- no. In the case in hand, the election petition was filed in the office of the lear ned District Judge. There being no manner laid down for presentation of the ele ction petition requiring presentation only before the learned District Judge, th e contention that the presentation in the office of the learned District Judge d oes not constitute valid presentation cannot be accepted and hence rejected. [11] An election petition cannot be thrown out at the threshold on th e slightest pretext of one kind or other, which may or may not have any material bearing on the factors to be strictly adhered to in such matters. It is the su bstance not the form which would matter, otherwise the returned candidate would not only be in the look out microscopically for any kind of technical lacunae or defect to abort the endeavour of the election petitioner to bring to trial the issues involved in the election petition.

It is also a well settled position of law that the procedures are hand-maid of justice designed to facilitate the jus tice and not to trim the same at the threshold. [12] The other contention of the petitioner is that the Election Trib unal by the impugned order has allowed the election petitioner to make roving en quiry without their being any basis in the pleadings. It is a settled position of law that in the democratic set up the sanctity of the election is to be maint ained, and the election of a returned candidate, unless otherwise proved to be i n violation of the provisions of the Act and/or the Rules, is presumed to be val id. The election petitioner has to plead material facts constituting the ground s for interfering with the democratic process, i.e. the election of the returned candidate. Unless the basis is laid in the pleadings, no amount of evidence ca n allowed to be laid. Naturally no roving enquiry can also allowed to be made b y the election petitioner unless of course there is sufficient pleadings. [13] As noticed above, no roving enquiry can allowed to be made by th e election petitioner and hence, the election petitioner would be allowed to lea d evidence only on the basis of the pleadings in the election petition.

The Ele ction Tribunal will decide the election petition without being influenced by the observations made in paragraph-15 of the impugned order and also allow the elec tion petitioner to lead evidence on the basis of the pleadings only. [14] The revision petition is accordingly disposed of. No costs. Si nce the term of the returned candidate is going to be over by January, 2013, the Election Tribunal is directed to make an endeavour to decide the election petit ion well ahead of the expiry of the term of the election.