Gauhati High Court
Tapen Siga vs Dikto Yekar on 1 February, 2019
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/17
GAHC010205822016
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : El.Pet. 3/2016
1:TAPEN SIGA
S/O- LT. TAMA SIGA, R/O- ABOTANI COLONY, DAPORIJO, P.O. and P.S.-
DAPORIJO, DIST.- UPPER SUBANSIRI.
VERSUS
1:DIKTO YEKAR
S/O- SHRI LEDIK YEKAR, R/O- SIKARIJO, P.O. and P.S.- DAPORIJO, DIST.-
UPPER SUBANSIRI, ARUNACHAL PRADESH, PIN- 791122.
Advocate for the Petitioner : MR. D MAZUMDAR
Advocate for the Respondent : MR.D NAG
BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK Date of Hearings : 30.10.2018, 31.10.2018, 01.11.2018 and 02.11.2018 Date of Judgment : 01.02.2019 JUDGMENT AND ORDER (CAV) Heard Mr. K. N. Choudhury, learned Senior counsel assisted by Mr. D. Dutt, learned counsel for the election petitioner and Mr. P.D. Nair, learned counsel for the sole respondent.
2) By this petition filed under Sections 80 and 80A of the Representation of the People Act, 1951 (in short, the RP Act) read with Section 51 of said 1951 Act, the petitioner has challenged the validity of the election of the respondent to 24-Daporijo (ST) Legislative Assembly Constituency in the 2014 Arunachal Pradesh State Legislative Assembly Election, Page No.# 2/17 result of which was declared on 16.05.2014.
3) As per pleadings in the election petition, on the recommendation of the Election Commission of India, the state of Arunachal Pradesh on 15.03.2014 issued the Notification under sub-Section (2) of Section 15 of the said RP Act, calling upon all the Assembly Constituencies of the State to elect members to the Legislative Assembly of the State with the following schedule:
(i) Last date of filing nomination - 22.03.2014
(ii) Date of scrutiny of nomination - 24.03.2014
(iii) Last date of withdrawal of nomination - 26.03.2014
(iv) Date of poll - 09.04.2014
(v) Date before which election should be completed - 28.05.2014
4) Petitioner filed his nomination paper for the 24-Daporijo (ST) Legislative Assembly
Constituency of Arunachal Pradesh (hereinafter referred to as the said constituency) as a candidate nominated by the Bharatiya Janata Party (BJP), whereas the respondent filed his nomination paper for the said constituency as a candidate nominated by the Indian National Congress Party (INC). Another candidate, namely, Shri Takir Kundu also filed his nomination paper for the said constituency as a candidate nominated by the People's Party of Arunachal Pradesh, who later withdrew his candidature. Nomination papers filed by both the petitioner as well as the respondent, being found in order during scrutiny, were found to be valid and only they contested the said election from the said constituency as main candidates.
5) It is stated that by order dated 31.03.2014, the concerned District Election Officer (DEO), Daporijo notified that the newly constructed Kebang ghar, adjacent to the District Election Office, as Postal Ballot Casting Centre for voters on election duty deputed for simultaneous election to Lok-Sabha and the State Legislative Assembly, 2014 where casting of votes was to start w.e.f. 2 nd April to 3rd April, 2014 from 8:00 AM to 5:00 PM. By the said order, the said DEO appointed (a) Shri Hage Taka, SDO (HQ), Daporijo and Shri M. Tayeng, FAO as Attestation Officers for the said 24-Daporijo (ST) Legislative Assembly Constituency, amongst other constituencies of the district, for attestation of declaration Form-13A of all voters on election duty and further appointed the officials (i) Smt. N. Matey, CDPO, Baririjo, Camp-Daporijo as Presiding Officer, (ii) Sri Doyom Ronya, UDC and (iii) Sri Taso Singkik, LDC as Polling Officers and (iv) Sri Tape Nguna, Peon as Attendant during the date and time fixed Page No.# 3/17 for casting of votes by postal ballots for the said Assembly Constituency.
6) It is stated by the petitioner that in terms of said order of the DEO dated 31.03.2014, casting of votes by postal ballots started on 2 nd April, 2014 and it continued upto 8 th April, 2014 in the said notified Centre. Petitioner contended that apart from the persons named in the said order dated 31.03.2014, another person, namely, Shri Lobsang, the District Disaster Management Officer (DDMO), Daporijo, close friend of the respondent, who was otherwise appointed for arrangement of light refreshment in the Receiving Centre and Counting Hall by order dated 15.03.2014, performed the duties of the Attestation Officer in the Counting Hall.
7) According to the petitioner in the said assembly constituency, as many as 587 voters had cast their votes through postal ballot, out of which majority are his supporters and about 300 such voters informed him that they had cast their votes in his favour. He also stated on completion of casting of votes by postal ballots, votes were cast through EVMs on 09.04.2014 and after the polling, counting of votes was fixed on 16.05.2014.
8) Petitioner stated that on 16.05.2014, counting of postal ballots were done 30 minutes prior to the prompting of EVMs, where, Shri M.B. Siga was his Counting Agent and Sri Dosh Dasi was the Counting Agent of the respondent and after counting of postal ballots for the said constituency, it was found that he polled 204 votes, the respondent polled 262 votes, 4 votes were cast against NOTA and 117 votes were rejected. It is also stated that the reason for rejection of postal ballots as shown to his agent, present in the table for counting of postal ballots were that out of 117 rejected votes, 28 were rejected due to the reasons mentioned in Rule 54(8) of the Conduct of Election Rules, 1961 and the remaining 89 votes were rejected due to the defects in the declaration Form-13A and that the Counting Supervisor, after completion of the counting of postal ballots, on obtaining signatures, handed over a copy of "Format for Recording of Tally of Votes polled by postal ballot paper when counted in more than one table" to his agent as well as to the agent of the respondent.
9) It is also stated by the petitioner that his Counting Agent, after counting, informed him that out of 89 postal ballots that were rejected, (i) 3/4 votes were rejected for non- writing of the serial number of the ballot paper in the declaration Form-13A, (ii) 7/8 votes were rejected for non-availability of Form-13A in the large cover, (iii) 7/8 votes were rejected Page No.# 4/17 for non-signing of the declaration Form-13A by the voters and (iv) 65/70 votes were rejected simply for not putting the seal or his designation in the postal ballots by the Attesting Officer and that counting officials informed his agent that had the Attesting Officer put his designation and the seal or had he written the same, the postal ballots would not have been rejected.
10) It is stated by the petitioner that most of the voters who cast their votes through postal ballots were lower grade employees, who needs assistance in casting their votes by postal ballots, as they were not aware about the formalities to be followed at the time of such polling by postal ballots and that the polling officials present during casting of votes by postal ballots did not advise those voters properly about the procedure of voting while casting of votes by postal ballots and it is due to such deliberate non-performance of their duties properly by the election officials, more particularly by said Sri Lobsang, intentionally not putting his designation in the relevant declaration Form, knowing fully well that those persons were the supporters of the petitioner, though said Sri Lobsang was not authorised to perform his duty as Attestation Officer in terms of the order of the concerned DEO dated 31.03.2014.
11) It is stated that since the Presiding Officer concerned allowed said Sri Lobsang to perform as Attestation Officer, without there being any authorisation or a valid order in that regard, who deliberately did not write his designation and/or did not put his seal in the Form 13A, as required and because of such non-compliance of the relevant rules, it resulted in rejection of 89 votes due to which the margin of difference of votes between the respondent and him being only 37, therefore, petitioner submitted that such act of said Sri Lobsang as well as the entrusted election officials, the result of his election was materially affected.
12) It is also stated that the petitioner through his counsel made application before the concerned DEO-cum-Deputy Commissioner, Upper Subansiri District, Daporijo for furnishing certain certified copies of election papers, including the application of the order appointing said Sri Lobsang as the Attestation Officer during casting of votes by postal ballots of said 24- Daporijo (ST) Legislative Assembly Constituency, which was not furnished to him on the plea that those were with the Returning Officer who was on leave after keeping all those documents in a sealed cover and thereby, the petitioner was kept in dark.
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13) Hence, the petitioner has preferred this Election Petition before the Itanagar Bench of this Court on 30.06.2014 wherein it was registered and numbered as Election Petition No. 04 (AP) 2014. In this petition, the petitioner, amongst others has prayed for - (i) to declare the election of the respondent from 24-Daporijo (ST) Legislative Assembly Constituency as void,
(ii) to direct inspection of all the rejected postal ballots numbering 89 and on such inspection, if it is found that said Sri Lobsang had signed them without any authority, declare them to be void and direct re-poll / re-recording of the rejected postal ballots, (iii) in the alternative, if said Sri Lobsang is found to be authorised to act as an Attesting Officer, but deliberately failed to put his seal and designation, then to direct recount of the rejected postal ballots numbering 89 and/or direct re-poll of all the rejected postal ballots and (iv) and/or to pass such other order/orders or direction as the Court may deem fit and proper.
14) In spite of his appearance through his counsel and after granting time, as the respondent did not file his written statement within the time so granted on 12.09.2014, i.e. by 27.10.2014, the Court on 24.11.2014 fixed the matter on 15.12.2014 for affidavit-in- evidence. The respondent on 20.11.2014 filed application being MC (EP) 04 (AP) 2014 seeking two months time to file his written statement in the matter, which was rejected by the Court on 24.11.2014. The respondent on 15.12.2014 filed Misc Case No. 12 (AP) 2014 under Order VI Rule 16 and Order VII Rule 11 of the Code of Civil Procedure read with the provisions of Section 83 of the RP Act, 1951 for dismissal of this Election Petition of the petitioner for want of cause of action and after hearing the parties, same was dismissed on 06.01.2016.
15) On the prayer of the petitioner and after necessary administrative approval, in terms of order dated 18.07.2016, this petition was transferred from the Itanagar Bench of this Court to its Principal Seat at Guwahati wherein it was renumbered as Election Petition No. 03/2016. However, as the petitioner did not file his affidavit-in evidence inspite of the orders passed earlier on 24.11.2014, 29.07.2016 and 22.09.2016, the Court by order dated 30.09.2016 dismissed this election petition with exemplary cost. Against the same petitioner preferred Special Leave to Appeal (Civil) No. 11112/2016 before the Hon'ble Supreme Court, which was disposed of by the said Hon'ble Court on 31.07.2017 after hearing the parties, restoring the petition to its file, with certain observations, amongst others, directing the respondent to file Page No.# 6/17 his written statement within two weeks from the said date of the order, i.e. 31.07.2017.
16) On 09.11.2017 the respondent made a prayer to accept his written statement filed in the matter on 08.01.2015. But as observed above, this Court by order dated 20.11.2014 dismissed the application of the respondent being MC (EP) 04 (AP) 2014 seeking two months time to file his written statement in this petition and against the same respondent preferred Special Leave to Appeal (Civil) No. 11135/2016 before the Hon'ble Supreme Court, which was disposed of by the said Hon'ble Court on 17.10.2016 as infructuous. As the respondent did not file his written statement in this matter within the two weeks time as granted by the Hon'ble Supreme Court in its order dated 31.07.2017 passed in Special Leave to Appeal (Civil) No. 11112/2016, such prayer of the respondent was rejected by this Court on 09.11.2017. Against the said rejection, the respondent filed Special Leave to Appeal (Civil) No. 32994/2017 before the Hon'ble Supreme Court, which was dismissed on 08.12.2017 enabling the respondent to examine the witnesses examined by the Election Petitioner once that stage is reached in the trial of the Election petition.
17) For proper adjudication of the this case, the Court on 14.11.2017 framed the following issues I) Whether votes cast by in the voters by way of postal ballots were illegally declared as invalid?
II) Whether Sri Lobsang, the DDMO, Daporijo was duly appointed to act as an Attesting Officer for the 24-Daporijo (ST) Legislative Assembly Constituency in 2014 Arunachal Pradesh State Legislative Assembly Election for attestation of the declaration Form 13A of all the voters on the election duty who cast their votes by way of postal ballots?
III) Whether said Sri Lobsang had acted any biased manner in favour of the respondent?
IV) Whether the District Election Officer, Daporijo followed the guidelines and rules and conducted a free and fair election in conducting 2014 Arunachal Pradesh State Legislative Assembly Election of 24-Daporijo (ST) Constituency?
V) Whether the serious anomalies had occurred in counting of votes with regard to 2014 Arunachal Pradesh State Legislative Assembly Election of 24-Daporijo (ST) Constituency as the competent authorities had declared approximately 30% votes as invalid, which is in contravention of the guidelines of Election Laws?
VI) Whether the counting of votes of 24-Daporijo (ST) Constituency in 2014 Arunachal Pradesh State Legislative Assembly Election was proper and whether it was in accordance with the practice and procedures of the Election Laws and Conduct of Election Rules, 1961?
Page No.# 7/17 VII) Whether the election officers violated the Election Rules and Guidelines of Election Laws with regard to 24-Daporijo (ST) Constituency in 2014 Arunachal Pradesh State Legislative Assembly Election, as the postal ballot papers were preserved in wooden ballot boxes made by plywood instead of iron boxes?
VIII) Whether the election of 24-Daporijo (ST) Constituency in 2014 Arunachal Pradesh State Legislative Assembly Election was free and fair and not tampered by the respondent in conclusion with the District Election Officer of Daporijo and other Government officers and staff assisting him?
IX) Whether an order to be passed by the Hon'ble High Court for recounting of postal ballots (votes) in the circumstances of the case?
X) Whether the election of the returned candidate, i.e., the Respondent is to be declared void?
XI) Relief, if any?
18) The petitioner Sri Tapen Siga himself as PW-1 and his three other witnesses, namely, Sri Makam Bayor Siga as PW-2, Sri Jili Jeram as PW-3 and Sri Taw Markia as PW-4 filed their affidavits-in-evidence. The petitioner also examined the concerned election officials, namely, Sri Tahang Taggu, the concerned District Election Officer-cum-the then Deputy Commissioner, Upper Subansiri District, Daporijo as PW-5, Sri Tage Rumi, the then SDO, Nacho and the Assistant Returning Officer for counting of Postal Ballots of the concerned constituency as PW-6, Sri Orin Lego, the then Extra Assistant Commissioner and Election Branch Officer of Upper Subansiri District, Daporijo as PW-7 and Sri Kanki Darang, the then Returning Officer of 24-Daporijo (ST) Constituency in 2014 Arunachal Pradesh State Legislative Assembly Election as PW-8. PWs 5 to 8 were also cross examined by the respondent. The respondent cross examined all the petitioner's witnesses No. 1 to 8.
19) The petitioner has exhibited the following documents, out of which some of them are also annexed as Annexures in the election petition:
i) Exhibit-PW1/1 (Annexure-A) - Gazette Notification dated 15.03.2014 issued by the Chief Secretary of the State of Arunachal Pradesh (proved in original).
ii) Exhibit-PW1/2 (Annexure-B) - Order No. DRJ/ELTN/GEN-11/2014 dated 31.03.2014 issued by the District Election Officer, Daporijo (proved in original).
iii) Exhibit-PW1/3 (Annexure-C) - Order No. DRJ/ELTN/GEN-29/2014/850 dated 15.03.2014 issued by the District Election Officer, Daporijo (proved in original).
iv) Exhibit-PW1/4 (Annexure-E) - Order No. DRJ/ELTN/GEN-29/2014/ dated 10.05.2014 issued by the District Election Officer, Daporijo (proved in original).
v) Exhibit-PW1/5 (Annexure-F) - Application dated 05.06.2014 filed by the Advocate Page No.# 8/17 of the petitioner for furnishing of certified copies of election papers.
vi) Exhibit-PW1/6 (Annexure-G) - Final result sheet in Form 20 under Rule 56(7) pertaining to 24-Daporijo (ST) Legislative Assembly Constituency in 2014 Arunachal Pradesh State Legislative Assembly Election (proved in original).
vii) Exhibit PW1/09 - Guidelines for issue of postal ballots papers issued by the Election Commission of India under No.52/2014-SDR dated 07.03.2014.
viii) Exhibit-PW2/1 (Annexure-D) - Format for recording of Tally of votes polled by postal ballots paper when counted in more than one table.
ix) Exhibit-PW8/1 - Handbook for Returning Officer 2014.
20) Mr. K.N. Choudhury, learned Sr. Counsel in support of the contention of the petitioner placed the following judgments of the Hon'ble Supreme Court and submitted that petition needs to be allowed declaring the election of the respondent to the said constituency as void. The relevant judgments are -
i) S. Raghbir Singh Gill -Vs- S. Gurcharan Singh Tohra, reported in 1980 Supp SCC 53.
ii) Km. Shradha Devi -Vs- K.C. Pant, reported in (1982) 3 SCC 389 (2).
iii) Hari Ram -Vs- Hira Singh & Others, reported in (1984) 2 SCC 36.
iv) Ram Sukh -Vs- Dinesh Aggarwal, reported in (2009) 10 SCC 541.
v) Uttamrao Shivdas Jankar -Vs- Ranjitsinh Vijaysinh Mohite Patil, reported in (2009) 13 SCC 131.
vi) PEPSU RTC -Vs- Mangal Singh, reported in (2011) 11 SCC 702.
vii) G.M. Siddeshwar -Vs- Prasanna Kumar, reported in (2013) 4 SCC 776.
viii) Arikala Narasa Reddy -Vs- Venkata Ram Reddy Reddygari, reported in (2014) 5 SCC
312.
ix) Ashraf Kokkur -Vs- K.V. Abdul Khader, reported in (2015) 1 SCC 129.
x) Krishnamoorthy -Vs- Sivakumar, reported in (2015) 3 SCC 467.
xi) Mairembam Prithviraj -Vs- Pukhrem Sharatchandra Singh, reported in (2017) 2 SCC 487,
xii) Kameng Dolo -Vs- Atum Welly, reported in (2017) 7 SCC 512.
xiii) Madiraju Venkata Ramana Raju -Vs- Peddireddigari Ramachandra Reddy, reported in (2018) 14 SCC 1.
21) Mr. P. D. Nair, learned counsel for the respondent on the other hand submitted that election petition of the petitioner is not at all maintainable and contended that as because the respondent won the said election by a margin of only 37 votes, therefore, without any supportive basis as well as pleadings, the petitioner cannot made claims that the conduct of Page No.# 9/17 the election was not proper, alleging that there was a deliberate non-performance of duties by the election officials that materially affected the result of the said election. Mr. Nair, further submitted that there is no basis at all in such submission of the petitioner and that he failed to place anything on record and failed to prove regarding his such claim. As such Mr. Nair submitted that the election petition of the petitioner needs to be dismissed.
22) In support of the contention for the respondent, Mr. Nair relied on the following judgments of the Hon'ble Supreme Court, which are -
i) Jabar Singh -Vs- Genda Lal, reported in AIR 1964 SC 1200.
ii) Ram Sewak Yadav -Vs- Hussain Kamil Kidwai, reported in AIR 1964 SC 1249.
iii) P. Malaichami -Vs- M. Andi Ambalam, reported in (1973) 2 SCC 170.
iv) K.D. Deshmukh -Vs- Amritlal Jayaswal, reported in 1993 Supp (1) SCC 50.
v) Charan Dass -Vs- Surinder Kumar, reported in 1995 Supp (3) SCC 318.
vi) L.R. Shivaramagowda -Vs- T.M. Chandrashekar, reported in (1999) 1 SCC 666.
vii) Uma Ballav Rath -Vs- Maheshwar Mohanty, reported in (1999) 3 SCC 357.
viii) V.S. Achuthanandan -Vs- P.J. Francis, reported in (1999) 3 SCC 737.
ix) P.H. Pujar -Vs- Kanthi Rajashekhar Kidiyappa, reported in (2002) 3 SCC 742.
x) Mahender Pratap -Vs- Krishan Pal, reported in (2003) 1 SCC 390.
xi) M. Chinnasamy -Vs- K.C. Palanisamy, reported in (2004) 6 SCC 341.
xii) Virender Nath Gautam -Vs- Satpal Singh & Others, reported in (2007) 3 SCC 617.
xiii) Udey Chand -Vs- Surat Singh, reported in (2009) 10 SCC 170.
xiv) Laxmi Kant Bajpai -Vs- Haji Yaqoob, reported in (2010) 4 SCC 81.
xv) Kalyan Kumar Gogoi -Vs- Ashutosh Agnihotri, reported in (2011) 2 SCC 532.
xvi) Kalyan Singh Chouhan -Vs- C.P. Joshi, reported in (2011) 11 SCC 786. xvii) Markio Tado -Vs- Takam Sorang, reported in (2012) 3 SCC 236.
xviii) Mangani Lal Mandal -Vs- Bishnu Deo Bhandari, reported in (2012) 3 SCC 314. xix) Ashok Mahadeo Mankar -Vs- Rajendra Bhausaheb Mulak, reported in (2012) 12 SCC 27. xx) Rajendra Kumar Meshram -Vs- Vanshmani Prasad Verma, reported in (2016) 10 SCC 715.
xxi) Kameng Dolo -Vs- Atum Welly, reported in (2017) 7 SCC 512.
23) Perused the evidence of the petitioner's witnesses as well as their cross examination, made by the respondent. Also considered the judgments cited by the both the parties.
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24) It is to be noted herein that in Civil Appeal No. (S) 11112 of 2016 before the Hon'ble Supreme Court that petitioner filed against the order dated 30.09.2016 passed by this Court dismissing his election petition for not filing the affidavit-in-evidence on time, in spite of granting time on many occasions, also filed an application seeking permission to take additional grounds on record and to file additional documents as Annexures A/11, A/12, A/13 and A/14 and submitted certain additional grounds, made therein, stating that since the election petition was dismissed for non filing of affidavit on evidence and due to the new facts and circumstances of the case, the petitioner had taken those additional grounds for just and proper adjudication of the said appeal that included scanned copy of the photograph of the ballot boxes to keep the postal ballots i.e., plywood ballots boxes instead of iron ballot boxes. The Hon'ble Supreme Court by order dated 02.12.2016 passed in said Civil Appl. No.11112/2016 granted permission to the petitioner to place additional documents in said appeal but in the final order dated 31.07.2017 passed in said Civil Appeal, the Hon'ble Supreme Court did not pass any order with regard to the additional grounds taken in the said appeal. Though the petitioner by examining the witnesses tried to place before the Court about the ballots boxes, where the postal ballots were kept, stating that those were made of plywood. But the same is not a pleaded ground in the election petition.
25) Though issue No. VII has been framed regarding the postal ballot boxes that were made of wood (plywood) to keep the postal ballots instead iron ballot box, but the same being not a pleaded case of the petitioner in the election petition, the said issue is decided against the petitioner.
26) As per the pleadings of the petitioner in the election petition his contention is that by Exhibit-PW1/3 (Annexure-C) order dated 15.03.2014 of the concerned DEO entrusted said Mr. Lobsang, DDMO, Daporijo to make arrangement of light refreshment in the receiving centre and the counting hall. It is alleged by him that said Sri Lobsang is a close friend of the respondent and that he performed the duty as an Attestation Officer, on the relevant dates and time in the Kebang Ghar, centre for casting of votes by postal ballots, without any authority. He submitted that being close to the respondent, said Sri Lobsang intentionally did not put his designation and seal in the declaration Form 13A, as required by the Rule for casting of vote by postal ballot and because of such non-compliance of the Rules and Page No.# 11/17 deliberate non-performance of duties properly by the election officials, 89 votes cast by postal ballots were rejected. Since the margin of votes between the respondent and him is only 37, such deliberate non-performance of duties by the election officials has materially affected the result of the election.
27) From the Exhibit-PW1/6 (Annexure-G), the Final Result Sheet in Form 20 under Rule 56(7) of the Conduct of Election Rules 1961 pertaining to 24-Daporijo (ST) Legislative Assembly Constituency in 2014 Arunachal Pradesh State Legislative Assembly Election, it is seen that out of 16996 numbers of electors of said constituency, 12148 numbers of votes were recorded in the respective polling stations through EVMs whereas 587 numbers of votes were recorded through postal ballots and all together 12735 numbers of votes were recorded in the said constituency during the said election.
28) From the said Final Result Sheet, Exhibit-PW1/6, it can also be seen that out of total 12,148 votes that were recorded in the respective polling stations through EVMs, petitioner got 6037 numbers of votes, whereas the respondent got 6016 numbers of votes.
29) Both from the said Exhibit-PW1/6 (Annexure-G), as well as Exhibit-PW2/1 (Annexure- D), the Format for Recording of Tally of Votes polled by Postal Ballot Paper when counted in more than one Table, it can be seen that after counting of the ballots on 16.05.2014 including postal ballots; out of 587 numbers of votes recorded through postal ballots in the said constituency during the said election, 117 numbers of postal ballots were rejected and 4 votes through postal ballots were recorded against NOTA. Out of those 466 valid postal ballots petitioner got 204 votes whereas the respondent got 262 votes and finally, the respondent won the said election by a margin of 37 votes.
30) Further, from the said Exhibit-PW2/1 it can be seen that out of those 117 rejected postal ballots, 28 numbers of postal ballots were found to be rejected due to the reasons mentioned in Rule 54(8) of the Conduct of Election Rules, 1961 and the remaining 89 numbers of postal ballots were rejected due to non-submission of declaration Form-13A and for other defective reasons.
31) By Exhibit-PW1/2 (Annexure-B) Order dated 31.03.2014, the DEO, Daporijo, PW.5 notified the Kebang Ghar as the Postal Ballot Casting Centre for voters on election duty for all Page No.# 12/17 the constituencies of Upper Subansiri District that includes 22 Nacho (ST) Constituency, 23 Taliha Constituency, 25 Raga (ST) Constituency, 26 Dumporijo (ST) Constituency and also the 24 (ST) Daporijo Constituency. By the said Exhibit, PW.5 also appointed Shri Hage Taka, SDO (HQ), Daporijo and Shri M. Tayeng, FAO as Attestation Officers for those constituencies including 24 (ST) Daporijo Legislative Assembly Constituency for the purpose of attestation of declaration Form-13A of all voters on election duty and further appointed the officials Smt. N. Matey, CDPO, Baririjo, Camp-Daporijo as Presiding Officer, whereas Sri Doyom Ronya, UDC and Sri Taso Singkik, LDC as Polling Officers of said constituency for the said purpose.
32) To the query (Q. No. 21) made by the petitioner "whether any action is taken against the officer who without being entrusted has performed the duty of attestation while casting votes by postal ballots", the PW.8, the concerned Returning Officer of 24-Daporijo (ST) Legislative Assembly Constituency in 2014 Arunachal Pradesh State Legislative Assembly Election during his examination-in-chief stated that "attestation in any such declaration pertaining to casting of votes by postal ballots can be done by any Gazetted officer in addition to the person concerned entrusted with the said duty after obtaining any order from the DEO. Any such voters who cast votes by postal ballots can take along the postal ballot papers and may submit the same after obtaining the signature of any Gazetted Officer or the Attestation Officer and can submit the same either by putting the same in the box meant for the said purpose or such voter can send it through post". Further, in his such examination-in-chief to an another query made by the petitioner (Q.No.41) "whether any specific officer was made an Attesting Officer to attest the declaration while casting votes by postal ballots or all the Gazetted Officers were empowered to attest the declaration of such voters cast their votes by postal ballots", said PW.8 replied that "all the Gazetted Officers were empowered to attest the postal ballots and to facilitate the voters who cast their votes by postal ballots for their early movement, a particular hall was converted to a polling station to cast votes by postal ballots and some officers were entrusted as Attesting Officer and for other purpose like putting ink in the fingers for casting of votes by postal ballots". Moreover, when he was asked by the petitioner as to "whether those entrusted Attesting Officers were for the concerned polling booth only" (Q No.42), said PW.8 in his evidence-in-chief replied in affirmative.
33) To the query of the petitioner, said PW.8 also stated that prior to the holding of said Page No.# 13/17 election, the Master Trainer gave more than three trainings to the election officials in Siro Rijo Auditorium at Daporijo that includes the process how to cast votes by postal ballots and instructions with regard to the declaration Form for casting of votes by postal ballots. With regard to the queries of the petitioner (Q. No. 40), said PW.8, the Returning Officer stated that Postal ballots were counted in a specifically allotted table before the votes in the EVMs were counted and for the purpose of counting of postal ballots, said duty was entrusted to a Counting Supervisor with two Assistants and the postal ballots were counted in presence of the candidates or their representatives. He stated that whenever the Counting Supervisor and his Assistants concerned had any doubt or when any queries were made by the counting agents/candidates, the Counting Supervisor, for necessary clarification, attended the table of the DEO/Returning Officer and after obtaining such clarification, they use to redress the objections raised by the candidates or their agents or they clear their own doubts.
34) PW.6, the concerned Assistant Returning Officer who was entrusted with the duty of counting of postal ballot papers by the DEO, Daporijo vide Exhibit PW1/4 (Annexure E), during his examination-in-chief by the petitioner deposed that during counting of postal ballots he had verified the invalid postal ballots and that during such counting he had verified the rejected postal ballots. He also stated that during such counting where the postal ballots were found without any attestation, such postal ballots were rejected out-rightly without opening the envelope containing the postal ballot. During his cross examination by the respondent, said PW.6 stated that all such invalid postal ballots were shown to the counting agents and kept in a tray which were later placed before the concerned Returning Officer available in the counting hall and on his approval, those were cancelled, which were again informed to the counting agents of the election candidates after coming back to the respective counting table. To the query of respondent, as to whether the counting agent of the election petitioner was shown the rejected and invalid postal ballots or not, said PW.6 in his cross examination stated that counting of postal ballots were done in their presence only. To the query of the respondent as to whether the counting agent of the election petitioner raised any objection at that point of time or not, said PW.6 in his cross examination replied in negative.
35) During his cross examination, to the query of the respondent as to how the postal Page No.# 14/17 ballots papers were rejected, said PW.6 stated that as per the election guideline dummy postal ballots were circulated by the Election Commission of India as well as the concerned Returning Officer and the process was shown to them as to when such postal ballots are to be to cancelled or rejected and when such postal ballots are to be accepted as a valid one.
36) The petitioner, through his election agent PW.3 Jili Jeram, appointed PW.4 Shri Taw Markia, as his polling agent during casting of votes by postal ballots in said Kebang Ghar on the relevant dates and by filing affidavit-in-evidence, said PW.4 has stated that one of the officer Sri Lobsang interrupted and stopped him from verifying the voters list and he himself started doing the same and also instructed the voters in order to influence them and started participating in the voting process and that said Sri Lobsang, without any authority or any valid order was playing the role of Facilitating Officer and that he was present when said Sri Lobsang was signing the declaration form.
37) But during his cross examination by the respondent, said PW.4 stated that casting of votes by postal ballots took place in the said Kebang Ghar up to 08.04.2014 but he was not present on 7th and 8th April. In his such cross examination, said PW.4, the polling agent of the petitioner to the question of the respondent answered that he being the polling agent of one of the contesting candidate of the election, he was not allowed to verify and tally the voters with the voters list during casting of votes by postal ballots for which he made verbal complain before the DEO, Daporijo but did not made any written complain in that regard and that he informed the election agent of his candidate in that regard on 03.04.2014 itself, when the problem arose. To an another query of the respondent, said PW.4 during his cross examination stated that he did not take any training as to how voters cast their votes by postal ballots, neither he knows who were the attestation officers for such voting by postal ballots nor he knows Sri Hage Taka and Sri M. Tayeng [the concerned attestation officers appointed by the DEO, Daporijo vide Exhibit-PW1/2 (Annexure-B), Order dated 31.03.2014]. Further, in his such cross examination said PW.4 stated that he does not know what Mr. Lobsang stated to the voters who cast their votes by postal ballots and stated that he had seen said Sri Lobsang filing up some forms, but he could not say what exactly he was writing.
38) PW.3, Jili Jeram, the election agent of the petitioner appointed PW.2, M.B. Siga (Makam Page No.# 15/17 Bayor Siga) as the counting agent of the petitioner during the time of counting of votes including postal ballots in the counting hall. As per evidence adduced by said PW.2 that on 16.05.2014 he was present in the counting hall during counting of votes polled through postal ballots. But, even after such scrutiny at the time of counting of votes polled by postal ballots, neither the polling agent PW.2, nor the petitioner or his election agent PW.3 could place anything as to whether said Sri Lobsang, DDMO, Daporijo made any attestation of the Declaration Form 13A.
39) From the evidence of the witnesses it is reflected that while rejecting the postal ballots being invalid or for non submission of declaration 13A and other defective reasons, the petitioner through his agent is aware not only about the reasons for rejection of such postal ballots but also the numbers of postal ballots rejected under each of the ground of rejection. But the petitioner failed to place before the Court as to how many postal ballots were rejected for non signing of declaration 13A. Since during the counting of postal ballots petitioner was present through his counting agent PW.2 as such, while any such acceptance of postal ballots with declaration 13A duly attested by Attesting Officer the counting agent by himself or through the petitioner or the election agent of the petitioner could have objected when such declaration 13A found to be attested by said Sri Lobsang, DDMO, Daporijo. In that regard also petitioner failed to bring anything on record to show that said Mr. Lobsang acted as an Attestation Officer in the Kebang Ghar the postal ballot casting centre.
40) It is already noted above that PW.4, poling agent of the petitioner during his cross examination by the respondent stated that he saw said Sri Lobsang filing up some forms, but failed to say what exactly he was writing. It is seen that during casting of votes by the voters through postal ballots in the Kebang Ghar, said PW.4, poling agent of the petitioner or the petitioner himself or petitioner's election agent never objected with the functioning of said Sri Lobsang either as Attestation Officer or for filing up of forms.
41) It is to be noted herein that the petitioner at para 7 in the Election Petition from his knowledge stated that out of 587 voters who had cast their votes through postal ballots 300 and more voters were his supporters who had informed him that they had cast their votes in his favour. But he did not state, how many out of those 300 and more voters had cast their votes through postal ballots in the said centre at Kebang Ghar, Daporijo. Though petitioner's Page No.# 16/17 polling agent, PW 4 was present during the days, notified for casting of votes by postal ballots, the petitioner failed to place anything before the Court as to how many voters of 24 (ST) Daporijo Constituency, including the voters of said constituency on election duty, had cast their votes through postal ballots in the said Centre.
42) Though it is not a pleaded case of the petitioner, but in evidence of PW.8, concerned Returning Officer, it is proved that since the victory margin of the respondent and the petitioner is less than the total postal ballots polled, mandatory recounting of postal ballots was done in presence of the central election observer including the PW.8 and others and the petitioner himself.
43) As such it clearly indicates that the petitioner failed to place anything before the Court to prove that he and/or his election agent PW.3 and/or his polling agent PW.4 and/or his counting agent PW.2 lodged any such complaint at any point of time before the concerned Presiding Officer present during casting of votes by postal ballots in the Kebang Ghar and/or made any such complaint before the concerned Returning Officer and/or the DEO, Daporijo at the relevant time stating that said Sri Lobsang DDMO, Daporijo, an unauthorized person performed the duty of an Attestation officer during casting of votes by postal ballots in the said Kebang Ghar, thereby acted illegally as an Attestation Officer, without any authority or that he intentionally did not put his designation and seal in the Form 13A, as required by the Rule for casting of vote by postal ballot and deliberately did not comply the Rules by non- performing the duties of an election official.
44) From the above the Court is of the view that the petitioner has failed to establish that because of said Sri Lobsang performing duty as an Attestation Officer, unauthorisedly, in the said Kebang Ghar and/or because of deliberate non-performance of duties by the election officials during casting of votes by postal ballots in the Kebag Ghar, the result of the election was materially affected. Moreover, during the deliberation the Court also observed that the petitioner could not reveal and prove any such apparent violation of the provisions of the RP Act and the Rules framed under it during the conduct of said election involved in the case, found to have been conducted in accordance with the provisions of the said Act and the rules and orders made thereunder and does not require to interfere with.
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45) For the reasons above, the issue Nos. I, III and V are answered in negative, whereas the issue Nos. IV, VI and VIII are answered in affirmative. Consequently the issue Nos. II, IX, X and XI has become redundant.
46) Accordingly, this election petition stands dismissed.
JUDGE Comparing Assistant