Gauhati High Court
Kiran Mili vs The State Of Assam And Ors on 29 November, 2011
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA,
MIZORAM AND ARUNACHAL PRADESH)
Writ Petition (C) No.3639 of 2009
Sri Kiran Mili,
Son of Sri Dutiram Mili,
Resident of Lakhipur Gaon,
PO:- Silabali Gaon, PS:- Silapathar,
District:- Dhemaji, Assam.
......Petitioner
- VERSUS -
1. The State of Assam,
represented by the Commissioner & Secretary to the
Government of Assam, Panchayat & Rural Development
Department, Dispur, Guwahati-6.
2. The State Election Commission, Assam to be
represented by the State Election Commissioner
(Panchayat), Assam.
3. The Deputy Commissioner/Returning Officer,
Panchayat Election, Dhemaji, District:- Dhemaji, Assam.
4. Sri Jogeswar Taw,
Son of Late Numal Taw,
Resident of Balikhata Missing Gaon,
PO:- Silabali Gaon, PS:- Silapathar,
District:- Dhemaji, Assam.
......Respondents
Advocates for the petitioner : Mr. R.P. Sarmah,
Mr. A. Nath,
Ms. R. Chakravorty,
Ms. R. Dewan,
Ms. M. Mandal, Advocates.
Advocates for the respondents : Mr. J. Handique, Government Advocate,
Mr. M.U. Mahmud,
Advocate for respondent No.2,
Mr. B.D. Goswami,
Advocate for respondent No.4.
- BEFORE -
THE HON'BLE MR. JUSTICE B.P. KATAKEY
Date of Hearing : 1st November, 2011.
Date of Judgment and Order : 29th November, 2011.
WP(C) No.3639/2009 Page 1 of 18
JUDGMENT & ORDER (CAV)
The petitioner, who was elected as Member from No.9 Kadamtala Ward to No.49 Muktiar Gaon Panchayat, by the present petition has challenged the decision of the Election Tribunal, Dhemaji constituted under the provisions of the Assam Panchayat Act, 1994 (in short, the Act) in the election petition filed by the respondent No.4 registered and numbered as Misc. Election Case No.6/2008, setting aside the election of the petitioner and directing recount of votes polled with a further direction to complete the recounting within a period of 1(one) month and to declare the result afresh on the basis of such recounting.
[2] The election of Members to constitute No.49 Muktiar Gaon Panchayat was held on 31st December, 2007, wherein the writ petitioner, the respondent No.4 and 2(two) other candidates contested seeking election from No.9 Kadamtala Ward. The votes polled were counted on 28th January, 2008. The writ petitioner having secured 368 votes as against the respondent No.4, who secured 157 votes, the writ petitioner was declared elected. The election petition, thereafter, was filed by the respondent No.4, under Section 129 of the Act, on 1st March, 2008, challenging the election of the writ petitioner and praying for recounting of votes and also for declaration that the election of the writ petitioner is illegal, apart from WP(C) No.3639/2009 Page 2 of 18 the declaration that the election petitioner/respondent No.4 is duly elected Member of the said Gaon Panchayat from Ward No.9. The ground on which the recounting of votes polled as well as the declaration, as noticed above, prayed for was that it was in fact the election petitioner/respondent No.4, who secured 389 votes and was initially declared as elected but subsequently the Returning Officer has issued the certificate declaring the writ petitioner as elected. It has also been contended that it is evident from the result-sheet containing the number of valid votes cast and the votes secured by each of the candidates that there was no account relating to 232 numbers of valid votes polled in the said election, which in fact was polled in favour of the election petitioner/respondent No.4. Hence, it was contended that there were anomalies in the counting materially effecting the result of the election, for which the recounting of votes polled is required.
[3] The said election petition was contested by the Returning Officer as well as by the writ petitioner/returned candidate by filing their respective written statements. In the written statement filed by the Returning Officer it was contended that though the result-sheet shows securing 368 votes by the writ petitioner/returned candidate as against 157 by the election petitioner/respondent No.4, from the counting sheets submitted by the Supervisor of the counting table, it, however, appears that the election petitioner/respondent No.4 in fact WP(C) No.3639/2009 Page 3 of 18 secured 389 votes and not 157 votes and it was due to human error committed in noting the figures in the result-sheet by the tabulator of the accounting hall, the election petitioner/respondent No.4 was shown to have secured 157 votes, which is less by 232 numbers of votes secured by him and it was because of such mistake there is no account for 232 votes in the result-sheet. The further contention of the Returning Officer in the written statement is that the matter was, therefore, referred to the State Election Commission vide communication dated 11th February, 2008 seeking opinion as to whether the mistake can be rectified after declaration of the result, who, however, vide communication dated 5th March, 2008 informed the Returning Officer that once the result is officially declared, the Returning Officer cannot subsequently modify the declaration, even if substantial defects in tabulation are detected later on, unless of course the Court directs so. The Returning Officer, therefore, in fact admitted the case as projected by the election petitioner/respondent No.4 in the election petition.
[4] In the written statement filed by the writ petitioner/ returned candidate, apart from taking the plea of maintainability, limitation, non furnishing of the true copy of the election petition and the plea that the election petition is not properly verified, it has also been contended that as he secured the highest number of valid votes, he has rightly been declared elected as Member of Gaon Panchayat WP(C) No.3639/2009 Page 4 of 18 from No.9 Kadamtala Ward. The allegation of the election petitioner/respondent No.4 that he in fact secured 389 valid votes has been denied.
[5] The election petitioner/respondent No.4 in support of his pleadings in the election petition examined himself as PW-1, apart from Sri Bipul Kr. Das, who was the In-charge of Panchayat election at Dhemaji as PW-2. He has also proved the result-sheet as Exhibit-1, the identity card issued for allowing entry in the counting hall to the election petitioner as Exhibit-2, the result of the counting in Form XXVIII(A) as Exhibit-3, the result-sheet prepared by the Assistant Returning Officer as Exhibit-4 and the final result-sheet prepared by the Returning Officer as Exhibit-5. The writ petitioner/returned candidate examined himself as DW-1 and proved the election petition filed by the election petitioner/respondent No.4, while cross- examining him, as Exhibit-A and the copy of the election petition served on the writ petitioner/returned candidate as Exhibit-B. No other document was proved by the writ petitioner/returned candidate.
[6] The learned Judge, Election Tribunal, upon appreciation of the evidences on record, vide judgment dated 29th July, 2009 set aside the election of the writ petitioner/returned candidate and directed recounting of votes with a further direction to issue the WP(C) No.3639/2009 Page 5 of 18 certificate of election to the candidate, who found to have secured highest number of valid votes after recounting. Hence the present petition.
[7] I have heard Mr. RP Sarmah, learned senior counsel for the writ petitioner/returned candidate and Mr. J Handique, learned State counsel appearing for the respondent Nos.1 and 3. I have also heard Mr. MU Mahmud, learned Standing Counsel, State Election Commission appearing for the respondent No.2 and Mr. BD Goswami, learned counsel appearing for the respondent No.4/election petitioner.
[8] It has been submitted by the learned senior counsel for the writ petitioner/returned candidate that as the secrecy of ballot is considered to be sacrosanct in a democratic process of election, it cannot be disturbed lightly on bare allegations of illegality or irregularity in counting, as has been done in the instant case. It has been submitted that the recount of votes can be ordered very rarely and on specific allegation in the pleadings of the petitioner relating to commission of illegality or irregularity while counting and as in the instant case, there is absolutely no allegation of illegality or irregularity in counting, the Election Tribunal ought not to have directed recounting of votes and set aside the election of the returned candidate. The learned counsel further submits that as Rule 54 of the WP(C) No.3639/2009 Page 6 of 18 Assam Panchayat (Constitution) Rules, 1995 (in short, "1995 Rules") made applicable the relevant Rules framed under the Representation of Peoples Act, 1951 (in short, "1951 Act") , i.e. Conduct of Election Rules, 1961, as regards the matters not provided in the 1995 Rules, the election petitioner unless filed an application seeking recounting before the Returning Officer, as required under Rule 63 of 1961 Rules, no election petition can be filed before the Election Tribunal challenging the election of a returned candidate and for recounting of votes. In the instant case, according to the learned senior counsel, since the election petitioner/respondent No.4 did not file the application seeking recount of votes before the Returning Officer, the Election Tribunal ought not to have allowed the election petition directing recount of votes, after setting aside the election of the writ petitioner/returning candidate. The further contention of the learned senior counsel is that the election petition being not properly verified and the true copy of the election petition, as required under Sub- Section(3) of Section 81 of the 1951 Act, having not been furnished to the writ petitioner/returned candidate, the election petition filed by the election petitioner/respondent No.4 ought to have been dismissed. The learned counsel in support of his contention has placed reliance on the decisions of the Apex Court in Vadivelu -Vs- Sundaram & Ors. reported in (2000) 8 SCC 355 and in Kattinokkula Murali Krishna -Vs- Veeramalla Koteswara Rao & Ors. reported in (2010) 1 SCC 466.
WP(C) No.3639/2009 Page 7 of 18 [9] Per contra, Mr. Goswami, learned counsel appearing for the election petitioner/respondent No.4 supporting the judgment passed by the election Tribunal has submitted that in the election petition, it has specifically been pleaded that though the election petitioner/respondent No.4 secured 389 valid votes while declaring the result 157 numbers of votes were wrongly shown to have secured by him, apart from the pleadings that in the result-sheet though total number of valid votes polled was shown to have 902, there was no account for 232 votes, as the total number of votes shown to have secured by 4(four) candidates was 670 in such result-sheet. The learned counsel, therefore, submits that it was specifically pleaded in the election petition that there was no account for 232 valid votes polled. It has also been submitted that the Returning Officer in the written statement filed has admitted the position by contending that in fact the election petitioner/returned candidate secured 389 votes, as it appears from the counting sheets submitted by the counting Supervisor instead of 157 votes and due to human error committed in noting the figures in the result-sheet by the tabulator, the writ petitioner/returned candidate was declared elected, which fact was also intimated to the State Election Commission. The learned counsel further submits that the differences of votes shown to have secured by the writ petitioner/returned candidate and the election WP(C) No.3639/2009 Page 8 of 18 petitioner/respondent No.4 being 211, such anomalies in counting in respect of 232 valid votes materially affected the result of the election. [10] The further submission of the learned counsel is that though Rule 54 of 1995 Rules provides that in the matter in which there is no specific provision in the said Rule, the election is to be guided by the relevant Rules framed under the 1951 Act, it is not necessary that the provisions of the 1961 Rules relating to the requirement of filing the application for recounting before the Returning Officer has to be complied with before filing the election petition in the Tribunal. It has also been submitted that the procedural laws relating to the Panchayat elections and election petitions, however, cannot be allowed to be interpreted with too much of rigidity and by indulging in hair-splitting. Mr. Goswami further submits that in fact the Returning Officer, on detection of the mistake committed, immediately informed the State Election Commission, and as such, even if the provision of 1961 Rules is applicable, that will not come in the way of filing the election petition challenging the election of the returned candidate and seeking recounting of votes. Relating to submission about the non maintainability of the election petition for improper verification and non supply of the true copy of the election petition, i.e. violation of Section 81(3) of the 1951 Act, it has been submitted that the provisions of the 1951 Act cannot be made applicable, more so, when the WP(C) No.3639/2009 Page 9 of 18 procedure to be followed by the Election Tribunal constituted under the 1994 Act have been laid down vide notification dated 30th September, 2000 issued by the Governor of Assam in exercise of the power conferred under Section 127 of the 1994 Act, which does not require the certification relating to the true copies. The learned counsel submits that the exact copy of the election petition was served on the writ petitioner/returned candidate and the election petition was duly verified. The learned counsel, therefore, submits that the writ petition deserves to be dismissed with cost.
[11] I have considered the submissions of the learned counsel appearing for the parties and also perused the records. I have also gone through the evidences, as adduced by the parties before the learned Tribunal, both oral and documentary.
[12] The learned Tribunal while deciding the election petition has found that the election petition is maintainable being properly verified by the election petitioner and supported by an affidavit. It was also found that though in the copy furnished to the writ petitioner/returned candidate, the name and address of the proforma respondent No.6, who is the Secretary and Commissioner, Government of Assam, Panchayat and Rural Development Department and who was impleaded subsequently by way of amendment, is not mentioned, it would not render the election WP(C) No.3639/2009 Page 10 of 18 petition not maintainable as the proforma respondent No.6 is not a necessary party to the election petition and hence failure of the election petitioner to furnish the name and address of the respondent No.6 to the returned candidate would not vitiate the proceeding. It has also been held that non furnishing of the name and address of the said respondent has not caused any prejudice or making him unable to prepare his written statement properly. The learned Tribunal has also recorded the finding that there were anomalies in the counting and preparation of the final result-sheet as there are evidences on record that in fact it was the election petitioner, who secured 389 votes and not 157 votes as shown in the final result-sheet, but because of the error committed by the staff in entering the figures in the final result- sheet, the election petitioner shown to have secured 157 votes, i.e. 232 votes less, which is exactly the number of valid votes not accounted for in the final result-sheet.
[13] It is a settled position of law that the direction for recounting of votes can be ordered rarely and only on specific allegation in the pleadings of the election petition about the commission of illegality or irregularity while counting, as the secrecy of ballot has always been considered sacrosanct in a democracy and cannot be disturbed lightly on the basis of bare allegations of illegality or irregularity in counting. The burden on the person, who seeks recount, to allege and prove that there was improper acceptance of WP(C) No.3639/2009 Page 11 of 18 invalid votes or improper rejection of valid votes. If the person is successful in proving that purity of election has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the Court can resort to recount of votes under such circumstances to do justice between the parties. [Vadivelu (supra)].
[14] The Apex Court in Kattinokkula Murali Krishna (supra) relying on its earlier decision in Vadivelu (supra) and other pronouncements has reiterated that before an Election Tribunal can directs scrutiny of ballot papers and order recount, 2(two) basic requirements, namely (i) having adequate statement, in the election petition seeking recount of the ballot papers, of all the material facts on which the allegations of irregularity or illegality in counting are founded and (ii) prima facie satisfaction of the Tribunal, on the basis of evidence adduced in support of the allegations, that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, must be satisfied.
[15] In Rupadhar Pujari -Vs- Gangadhar Bhatra reported in (2004) 7 SCC 654, the Apex Court placing reliance on a decision by a Constitution Bench in Sardar Amarjit Singh Kalra -Vs- Pramod Gupta reported in (2003) 3 SCC 272 has opined that the procedural laws WP(C) No.3639/2009 Page 12 of 18 relating to Panchayat elections and the election petitions cannot be allowed to be interpreted with too much of rigidity and by indulging in hair-splitting. It has further been observed that as laws of procedure are meant to regulate effectively, assist and aid the object of doing substantive and real justice, it is to be liberally construed to really serve as handmaid of justice and to make them workable and also to advance the ends of justice. Technical objections, which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of the law inevitably necessitates it.
[16] In the backdrop of the law laid down by the Apex Court, as discussed above, I shall now proceed to deal with the case in hand. It is evident from the averments made in the election petition, which have already been noticed above, that there are specific allegations of irregularity and illegality in declaring the result, materially affecting the result of the election, whereby the election petitioner/respondent No.4 was seriously prejudiced. It has been alleged that in fact the election petitioner secured 389 votes and not 157, as shown in the final result-sheet, which position has also been admitted by the Returning Officer in the written statement filed. The election petitioner in the petition has also pleaded that though in the final result-sheet the number of valid votes polled was shown to be 902, the account of only 670 votes was given, going by the number of WP(C) No.3639/2009 Page 13 of 18 votes shown to have secured by 4(four) candidates, and there was no account for 232 valid votes polled, which, according to the election petitioner, was secured by him. The said position was also admitted by the Returning Officer in the written statement filed. The election petitioner/respondent No.4 adduced evidence to that effect and proved the „Result of Counting‟ dated 28th January, 2008 submitted in Form XXVIII by the counting Supervisor (Exhibit-3), wherefrom it appears that out of 957 votes cast, 902 votes were found to be valid and the election petitioner shown to have secured 389 votes as against the writ petitioner/returned candidate, who secured 368 votes. 55 votes were rejected. But in the final result of counting signed by the Returning Officer (Exhibit-4), the election petitioner/respondent No.4 was shown to have secured 157 votes instead of 398, while rightly showing 368 votes secured by the writ petitioner/returned candidate, which, according to the Returning Officer as well as PW-2 themselves, was due to human error committed in noting the valid votes polled by the election petitioner/respondent No.4. There is also no account for 232 votes in the said final result, as out of 902 valid votes, 670 votes were shown to have secured by 4(four) candidates (writ petitioner/returned candidate-368; election petitioner/ respondent No.4- 157; Tileswar Tayung- 42 and Sadananda Missong-
103). Though the witnesses examined by the election petitioner/ respondent No.4 were thoroughly examined by the writ petitioner/returned candidate, they could neither be discredited nor WP(C) No.3639/2009 Page 14 of 18 any contradiction could be elicited. As noticed above, the Returning Officer in the written statement has admitted the case of the election petitioner as pleaded in the election petition by contending that in fact it was the election petitioner, who secured 389 votes and not 157 and because of the human error by the tabulator, in the final result-sheet the election petitioner/respondent No.4 was shown to have secured 157 votes in place of 389.
[17] One of the grounds of challenging the decision of the Election tribunal is that the election petition filed by the election petitioner/respondent No.4 is not maintainable, as there was no proper verification of the election petition and true copy of the election petition was not furnished, as required under Sub Section (3) of Section 81 of the 1951 Act. As discussed above, the learned Tribunal has found that the election petition was duly verified and supported by affidavit. Having perusal of the election petition, it appears that the election petition has been duly verified and supported by affidavit, as found by the learned Tribunal. It is true that in the copy furnished to the writ petitioner/returned candidate the name of the proforma respondent No.6 in the election petition was not mentioned, who was subsequently impleaded by way of amendment.
[18] The purpose of furnishing a true copy of the election petition is not to frustrate the cause of the election petitioner WP(C) No.3639/2009 Page 15 of 18 approaching the Court by adhering strictly to technicalities of little consequence. It, however, does not mean that the respondent shall be served with such a copy which comes in his way of having the correct idea of the allegations made against him in the election petition or mislead him in any material respect. The copy to be furnished must not have vital variation from the original. The election petition should not be thrown at the threshold on the slightest pretext of one kind or the other which may or may not have any material bearing on the factors to be strictly adhered to in such matters. What is important is the substance and not the form. The election petition, therefore, cannot be dismissed on the ground of non furnishing of the exact copy to the returned candidate, if the defect in the copy is of little consequence and does not result in any vital variation between the original and the true copy so as to have the effect of misleading the returned candidate.
[19] In the instant case, as noticed above, the difference between the election petition filed and the copy served on the writ petitioner/returned candidate was non-mentioning of the name and address of the proforma respondent No.6, who was impleaded as respondent at a later stage by way of amendment. Such difference is of little consequence and did not mislead the writ petitioner/returned candidate in any way relating to the allegation contained in the election petition, thereby effecting his right to file the effective written WP(C) No.3639/2009 Page 16 of 18 statement. That apart, the provisions of Sub-Section (3) of Section 81 of the 1951 Act is not applicable, since the procedure to be followed by the Tribunal has been laid down vide notification dated 30th September, 2000 issued in exercise of the power conferred under Section 127 of the 1994 Act, which requires accompany of the election petition by as many copies as may be required to serve upon the opposite parties, such copies, however, must not have any vital variation from the original. The Apex Court, as discussed above, in Rupadhar Pujari (supra) has held that the procedural laws relating to the Panchayat elections and election petitions cannot be allowed to be interpreted with too much of rigidity and by indulging in hair-splitting and it must be kept in mind that the laws of procedure are meant to regulate effectively, assist and aid the object of doing substantive and real justice and to advance the ends of justice and not to defeat and deny substantial and effective justice.
[20] The further contention of the writ petitioner/returned candidate is that as the election petitioner/respondent No.4 did not file the application seeking recount of votes before the Returning Officer, the Election Tribunal ought not to have allowed the election petition. The said contention need not detain the Court much, as the Returning Officer in the written statement filed has admitted the illegalities and irregularities in declaring the result, apart from contending that the mistake in making the entry in the final result- WP(C) No.3639/2009 Page 17 of 18 sheet, relating to the votes secured by the election petitioner/ respondent No.4, was immediately intimated to the State Election Commission, which, however, could not be rectified by the Returning Officer himself as, in the meantime, the result has formally been declared with such anomalies. Moreover, non filing of the application before the Returning Officer seeking recount would not, in all cases, be a ground to refuse the recount of votes by the learned Tribunal, where the election petitioner could demonstrate strong prima-facie circumstances to suspect the purity, propriety and legality in the counting of votes. As noticed above, the defect in preparation of the final result-sheet writ large on the documents proved by the election petitioner/respondent No.4 and was also admitted by the Returning Officer in the written statement.
[21] That being the position, the decision of the learned Tribunal needs no interference in exercise of the jurisdiction under Articles 226/227 of the Constitution of India.
[22] The writ petition is accordingly dismissed with no order as to costs.
JUDGE M. Sharma WP(C) No.3639/2009 Page 18 of 18