High Court
Case Details
CRP 295/2012 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (CAV) This revision petition is directed against the order dated 8th June, 2012 passed by the Election Tribunal in Election Petition No.3/2009 directing recount of ba llot papers of the election of Ward Commissioner of Ward No.5 of Roha Town Commi ttee. The facts necessary for disposal of the present revision petition may be n otices as under: - Both the revision petitioners and the respondent No.1 contested the elec (i) tion of Commissioner of Ward No.5, Roha Town Committee, which was reserved for s chedule caste woman candidate. While the revision petitioner was nominated by In dian National Congress, the respondent No.1 was nominated by Assam Gana Parishad . The election was held on 31st July, 2009 and the result was declared, after co unting of votes secured by the candidates, on 4th August, 2009 declaring the pet itioner elected, having secured 268 votes as against 266 votes secured by the pr esent respondent No.1. Eleven votes were declared invalid. The respondent No.1 filed the election petition before the Election Trib (ii) unal, under Section 16 of the Assam Municipal Act, 1956 (in short, (cid:28)the Act (cid:29)), r ead with Rule 101 of the Rules for Election of Commissioner of Municipal Board u nder the Assam Municipal Act, 1956 (in short, (cid:28)the Rules (cid:29)), which was registered and numbered as Election Petition No.3/2009, questioning the result of the said election declaring the present petitioner as elected, alleging anomalies in cou nting and praying for an order for recount of ballot papers and to declare her a s elected as Commissioner of Ward No.5 of Roha Town Committee, upon setting asid e the election of the revision petitioner. (iii) The election petition has been contested by the revision petition by fil ing written statement contending inter alia that there was no anomaly in countin g of ballot papers. The present respondent Nos.2 and 3 have also filed the joint written statement contesting the claim of the respondent/election petitioner an d contending that there was no anomaly in counting and hence prayed for dismissa l of the election petition. [2] ed the following issues for determination: -
Legal Reasoning
Based on the pleadings of the parties the Election Tribunal fram (i) Whether there is any cause of action for the election petition? (ii) Whether the petition is maintainable in its present form? (iii) Whether the petition is barred by law of limitation as prescribed by the Assam Municipal Act, 1956? (iv) Whether the proper procedures were maintained and all formalities were m ade by the concerned authorities (Officer-in-Charge) and also is there any irreg ularities and illegalities as regards to ballot papers etc. at the time of holdi ng the election? (v) at? Whether the petitioner is entitled to any relief or reliefs and if so wh [3] The election petitioner in support of her prayer for recount has examined four witnesses, including the election petitioner herself as PW-1, and proved seven documents, namely final result sheets (Ext.-1), money receipts (Ex t.-2), identity card of Tilu Das (Ext.-3), newspaper report (Ext.-4), treasury c hallans (Ext.-5), identity card of Dhruba Pator (Ext.-6) and the identity card o
Legal Reasoning
f Debananda Goakhowa (Ext.-7). The revision petitioner/returned candidate examin ed three witnesses namely the revision petitioner herself as DW-1, Sri Mukut Das as DW-2 and the learned Magistrate-in-Charge for conducting the election of Roh a Town Committee, Sri Satyajit Chetia as DW-3. The witnesses were cross examined by the respective parties. [4] The Tribunal upon appreciation of the evidence on record, vide o rder dated 8th June, 2012 directed recount of ballot papers by holding that the election petitioners could prove that even after recount of votes by the Returni ng Officer the election petitioner secured highest number of valid votes and the reafter four ballot papers were cancelled and revision petitioner/returned candi date has been declared elected, which was done because of the pressure put by yo uth congress members. Hence the present petition. [5] I have heard Mr. K.P. Sarma, learned senior counsel for the revi sion petitioner and Mr. N. Dutta, learned senior counsel appearing for the respo ndent No.1. Also heard Mr. P. Sen Deka, learned State counsel appearing for the respondent No.2 and Mr. M.U. Mahmud, learned standing counsel, Election Commiss ion, appearing for the respondent No.3. Mr. Sarma, learned senior counsel appearing for the revision pet [6] itioner referring to the pleadings in the election petition and the deposition o f witnesses examined by the election petitioner has submitted that though the el ection petitioner requires to make adequate statement of material facts on which the irregularity or illegality in counting are founded and cogent and reliable evidence is required to be adduced in support of such allegation, so as to prima facie make out a case to order for recount, since the election petitioner has f ailed to plead the material facts in the election petition and could not lead an y evidence so as to allow recount of votes, the election Tribunal ought not to h ave passed the impugned order directing recount only on the basis of the allegat ion, without any proof, that the Circle Officer was forced by the Youth Congress members to declare the revision petitioner elected. It has also been submitted that there being also no pleadings and proof that even after the recount of vot es, as directed by the Returning Officer, the election petitioner secured highes t number of votes and thereafter, 4(four) ballot papers were cancelled so as to declare the revision petitioner elected, the Tribunal ought not to have held so and ordered recount of votes. Mr. Sarma further submits that the other ground o n which the recount has been directed, i.e. that the written statement filed by the Circle Officer as well as the affidavit filed by him does not disclose what are the defects in those 4(four) ballot papers so as to declare them invalid, is also not sustainable in law, as it is the election petitioner, who is to plead and prove that the ballot papers were declared invalid though those are valid vo tes, which the election petitioner having failed to do, the Tribunal ought not t o have directed recount of votes. It has also been submitted that as the order for inspection and recount of ballot papers has effects the secrecy of ballot, o rder of recount cannot be made as a matter of course, unless of course, the elec tion petition seeking recount of ballot papers contains adequate statement of al l material facts on which the irregularity or illegality in counting are founded and the adequate evidence is adduced in support of such allegation so as to pri ma facie make out a case for recount and in the instant case the Tribunal ought not to have directed recount of votes in the absence of pleading of material fac ts and evidence by the election petitioner. The learned senior counsel, therefo re, submits that the order passed by the Tribunal directing recount, which effec ts the secrecy of ballot, needs to be set aside. [7] Mr. Dutta, learned senior counsel appearing for the respondent N o.1/election petitioner, on the other hand, supporting the order passed by the E lection Tribunal directing recount of ballot papers has submitted that it is app arent from the pleadings in the election petition that the material facts relati ng to the irregularities and illegalities of counting has been pleaded by the el ection petitioner in the election petition, based on which evidence was led, whi ch prima facie satisfied the Tribunal that there were irregularities and illegal ities in counting of ballot papers, for which the Tribunal has directed recount of votes. Referring to the pleadings as well as the evidence adduced, it has al so been submitted by the learned senior counsel that 4(four) ballot papers, whic h were earlier counted in favour of the election petitioner were subsequently de clared invalid without assigning any reason therefor, though Rule 79(2) of the R ules requires recording reason for rejection of ballot papers or declaring the s ame as invalid by the Returning Officer, which having not been done, the Tribuna l has rightly directed recount of votes, so as to do complete and effectual just ice between the parties and the person securing the highest valid votes is decla red elected. The learned senior counsel further submits that it is apparent fro m Form-XVII, i.e. the record of rejected ballot papers maintained by the Returni ng Officer, which has been called for and perused by this Court pursuant to the order dated 29th October, 2013, that though in the first counting only 7(seven) ballot papers were rejected, in the recount by the Returning Officer 4(four) mor e ballot papers were rejected without assigning any reason as required under Rul e 79(2) and hence, no illegality has been committed by the Election Tribunal in directing recount of ballot papers. Mr. Sharma, learned senior counsel appearing for the revision pe [8] titioner, in reply to the submissions advanced by the learned senior counsel app earing for the respondent No.1/election petitioner, has submitted that though th e election petitioner is required to prove Form-XVII, i.e. the record of rejecte d ballot papers, which though has not been proved, it is apparent therefrom that the Returning Officer has given the reason why the 4(four) more ballot papers w ere rejected, as required under Rule 79(2) of the Rules. Mr. Deka, learned State counsel as well as Mr. Mahmud, learned s [9] tanding counsel appearing for the respondent Nos.2 and 3, respectively, have sub mitted that the election petitioner having challenged the result of the election and prayed for recount of ballot papers, she has to plead the material facts an d also prove the same by adducing cogent evidence. It has also been submitted t hat the recount of ballot papers should not be directed in normal course, as it breaches the secrecy of ballots. I have considered the submissions advanced by the learned counse [10] l appearing for the parties and also perused the pleadings and evidence adduced by the parties, apart from the order passed by the Tribunal directing recount of votes. Recount of ballot papers cannot be directed on mere asking, as t [11] he secrecy of the ballot, which is sacrosanct, becomes exposed if the recount of votes is made easy. No order directing recount of ballot papers can be passed as a matter of right. For obtaining an order of recount of ballot papers, the m aterial facts relating to the irregularity or illegality in counting must be ple aded and the person claiming recount must adduce cogent and reliable evidence to prove such irregularities and illegalities so as to prima facie satisfy the Tri bunal that in order to decide the dispute and to do complete and effectual justi ce between the parties making of an order of recount is imperatively necessary. Material facts are the primary and basic facts, which have to be pleaded by th e election petitioner to prove his cause of action and by the defendants to prov e his defence. What are the material facts, in a given case, would depend upon the facts of the each case and no rule of universal application can be laid down . It is a settled position of law that no amount of evidence beyond the pleadin gs can either be permitted to be adduced or can such evidence be taken into cons ideration while passing an order by the Court or the Tribunal. If the allegatio ns regarding the irregularity or illegality in counting of votes are vague, no r ecount can be granted by the Court or the Tribunal. [12] In the instant case, it has been pleaded in the election petitio n that in the first counting though 7(seven) ballot papers were rejected, howeve r, in the recount, allowed by the Returning Officer, 4(four) more ballot papers, which were previously counted as valid in favour of the election petitioner, we re rejected, thereby 11(eleven) ballot papers were rejected. In the election pe tition, it has, however, not been pleaded that no ground has been cited in rejec ting the 4(four) ballot papers, which were earlier counted in favour of the elec tion petitioner, except the pleading that there was no reasonable ground in reje cting the said ballot papers, which was done by the Returning Officer succumbing to the pressure exerted by the Youth Congress members to declare the revision p etitioner elected. [13] The respondent No.1/election petitioner having challenged the re sult of the election and claimed recount of ballot papers, burden lies on her to plead material facts and also to adduce evidence. In the instant case, the ele ction petitioner, however, did not plead the material facts as to how and in wha t manner the irregularity or illegality in counting has been committed and the p leading is very vague. Based on such pleading, the order for recount cannot be directed so as to breach the secrecy of ballots, which is sacrosanct. There bei ng no pleading of material facts, no amount of evidence in that regard can also be looked into by the Court or the Tribunal to pass an order in favour of the el ection petitioner for recount of ballot papers. [14] It also appears from the deposition of the election petitioner’s witness Nos.1 to 3 that the election petitioner has agreed for the recount, bas ed on which the revision petitioner/returned candidate has been declared elected . The election petitioner, who has been examined as witness No.1, did not say a nything relating to the irregularities or illegalities in the recounting of vote s, except saying that she was earlier declared as elected after the counting pro cess was over and that the result of the recount was declared because of the pre ssure exerted by the members of the Youth Congress. This witness, however, has admitted that no certificate declaring her as elected has been issued. This wit ness has also not stated that no ground has been cited for rejection of 4(four) ballot papers. The witness Nos.2 and 3 of the election petitioner though in the ir examination-in-chef have claimed to be the election agents of the election pe titioner, during cross-examination they have admitted that neither of them was t he election agent of the election petitioner. They, however, claimed that they w ere present during counting of votes. These witnesses have also not stated anyth ing relating to any irregularities or illegalities committed during recounting. The election petitioner, therefore, in any case, has failed to prove any irregul arities or illegalities in the counting process. [15] This Court also in order to satisfy as to whether any reason has been cited by the Returning Officer, called for Form-XVII, i.e. the record of r ejected ballot papers, wherefrom it appears that the specific grounds as require d under Rule 79(2) of the Rules have been recorded for rejection of the 11(eleve n) ballot papers, which includes 4(four) ballot papers earlier stated to have be en counted in favour of the election petitioner, though it was the burden on the election petitioner to prove the said Form-XVII, which, however, has not been d one. The learned Tribunal has also wrongly placed the burden on the Returning O fficer to prove that there was no irregularity or illegality in counting of vote s, though such burden heavily lies on the person challenging the election. In view of the aforesaid discussion, I am of the view that the E [16] lection Tribunal ought not to have directed recount of votes. Hence, the impugn ed order dated 8th June, 2012 passed by the Election Tribunal is set aside. Re vision petitioner stands allowed. Consequently the election petition filed by t he respondent No.1/election petitioner is dismissed. No costs.