Judgment · High Court

Heard Mr. S.K. Talukdar, learned counsel for the petitioner. Also heard Mr. M.I. Hussain, learned Standing Counsel, Assam State Election Commission and Mr. M.Bh agawati, learned Government Advocate, Assam. Mr. H.R. A. Choudhury, learned sen ior counsel assisted by Mr. B.Rahman, learned counsel has entered appearance fo r respondent No.4 by filing caveat. Caveator will be heard. Caveat stands discharged. Challenge made in this writ petition is to the order dated 3.12.2013 passed by t he Panchayat Tribunal(District Judge), Morigaon in EP No.4/2013 directing re-cou nting of votes. Case of the petitioner is that she was elected as Anchalik Panchayat President of No.2 Laharighat Anchalik Panchayat from No.31 Kacharibori Anchalik Panchayat constituency. Her election has been challenged by the defeated candidate i.e. r espondent No.4 in the above election petition. By the impugned order, the Panchayat Tribu nal has directed re-counting of votes.

Aggrieved, the present writ petition has been filed. Relevant portion of the order dated 3.12.2013 reads as under :- (cid:28) I have gone through the petition, objection and heard learned counsel fo r both sides. Ld. Counsel for the petitioner submits that crux of the election p etition is Issue No.4 and recounting of ballot papers will virtually decide the fate of the election petition without deciding other issues. On the other hand, learned counsel for the opposite party has submitted that leading of evidence by the parties is necessary to decide the issue. Because, without adducing evidenc e, it cannot be held that the counting was defective and if this Tribunal held t hat the counting was defective, then only it will be appropriate to pass order f or recounting of ballot papers. Hence, learned counsel has prayed to allow the p arties to adduce evidence and Issue No.4 be decided finally along with other iss ues.

After going through the petition and objection, it is found that the election of opposite party No.2 has been challenged mainly on the ground of defect in count ing of votes of the election held on 12.02.2013.Upon the above rival submissions , it appears that the submission of learned counsel for the opposite party that it is the burden of the petitioner to prove the effects and if the petitioner su cceeded, then recounting will be required, has some force. But, considering the tenure of the President of a Gaon Panchayat, which is for five years only, so, I am of the option that adducing evidence by the parties, may consume much time a nd the petition may become infructuous. On the other hand, it is also found that recounting of ballot papers will virtually decide the fate of the election pet ition without deciding the other issues, which will save valuable time. Order 1 5 Rule 3(1) C.P.C. provides as follows : (cid:28)(1) Where the parties are at issue on some question of law or of fact, a nd issues have been framed by the Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit fo rthwith, the Court may proceed to determine such issues, and, if the finding the reon is sufficient for the decision, may pronounce judgment accordingly, whether the summons has been issued for the settlement of issues only or for the final disposal of the suit ; Provided that, where the summons has been issued for the settlement of issues only, the parties or their pleaders are present and none of them objects.

(cid:29) It is found from the facts and circumstances of the petition, that the recount ing of ballot papers will be sufficient to decide the election petition and no i njustice will be caused to either of the parties. Because, the voters already ca sted their votes, which is in safe custody of the District Returning Officer, Mo rigaon, in ballot boxes and it cannot be changed now. By recounting, the number of votes casted against each candidate will be ascertained to see the correctnes s of the election result, and it will finally decide the instant election petiti on. (cid:29) For the Panchayat Tribunal to direct re-counting of votes, it must first come to a prima-facie conclusion that there were anomalies in the initial cou nting of votes which had affected the final outcome of the election. Without rea ching such conclusion, it would not be open to the Panchayat Tribunal to direct re-counting of votes only on the ground that it will save valuable time.

Though Mr. Choudhury, learned senior counsel appearing for respondent No.4 has f orcefully argued in support of the impugned decision, I am of the view that it w ill be in the interest of justice if the Panchayat Tribunal first takes a decis ion on the above issue in accordance with law. Only after such a decision is rea ched, justification or otherwise for recounting should be considered. In view of the above, impugned order dated 3.12.2013 passed in EP No.4/2013 is hereby set aside and quashed. Matter is remanded back to the Panchayat Tribunal, Morigaon to take a fresh decision in accordance with law. Since both the parti es are present, they shall appear before the Panchayat Tribunal within 15 days f rom today and thereafter the Panchayat Tribunal shall proceed with the case expe ditiously.