Gauhati High Court
Smti Duter Padu vs Gadam Ete on 1 June, 2012
Author: Ia Ansari
Bench: Ia Ansari
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR:
TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
ELECTION PETITION NO.03 OF 2009
Smti Duter Padu ...PETITIONER
-Versus-
Sri Gadam Ete ...RESPONDENT
BEFORE THE HON‟BLE MR. JUSTICE IA ANSARI For the petitioner :: Mr. N. Dutta, Senior Advocate Mr. S. Shyam, Mr. D. Padu, Advocates For the respondent :: Mr. D.K. Mishra, Senior Advocate Mr. M. Nath, Mr. S. Dey, Advocates Dates of hearing :: 22.11.10, 16.08.11, 17.08.11, 18.08.11, 19.08.11, 20.08.11, 05.09.11, 06.09.11, 29.09.11, 30.09.11, 05.01.12, 07.02.12, 08.02.12, 27.02.12, 29.02.12 & 16.03.2012 Date of judgment :: 01.06.2012 JUDGMENT & ORDER The case of the election petitioner may, in brief, be set out as under:
(i) The election petitioner, Smti. Duter Padu, had contested the election, held, on 13.10.2009, from No. 30 Aalo West Assembly (ST) Constituency, Arunachal Pradesh, as a candidate of All India Trinamool Congress ( in short, „the AITC‟). The respondent, Shri Gadam Ete, who had contested the said election as a candidate from Indian National Congress ( in short, the INC‟), was the only contestant against the election petitioner from No. 30 Aalo West Assembly (ST) Constituency.2
The result of the election was declared, on 22.10.2009, wherein the respondent was declared as the elected candidate having 5113 votes polled in his favour as against the 5082 votes polled in favour of the election petitioner, the difference, in votes, obtained by the petitioner and the respondent, being 31 (thirty one) votes only. In terms of the votes, counted from the Electronic Voting Machines (in short, „EVMs‟), it is the election petitioner, who would have won the election, but because of the fact that as many as 45 postal ballots, which were, otherwise, spurious and forged, had been counted, though there was specific order passed earlier by the Returning Officer not to count these postal ballots inasmuch as they had been received by the authorities concerned through illegal and unauthorised channels. The respondent, thus, came out as the returned candidate. The difference in the votes was, according to the election petitioner, due to improper reception of the postal ballots and illegal counting of the same. This apart, the respondent obtained active help and support of Gazetted Officers of the State Government, including the Returning Officer, in getting the said forged postal ballots counted in his favour. Thus, the respondent indulged in corrupt practice for the purpose of winning the election.
(ii) As per the notification, issued under the authority of the Election Commission of India, the program for holding the General Elections to the 60 (sixty) assembly constituencies, in the State of Arunachal Pradesh, was as follows:-
Sl Particulars Date
No.
1 Last date of submission of Nomination Form 25.09.09
2 Date of Scrutiny 26.09.09
3 Date of Withdrawal 29.09.09
3
4 Date of issuance of Postal ballots 06.10.09 to
11.10.09
5 Date of receipt of Postal ballots Till 08:00 AM
on 22.10.09
6 Date of polling 13.10.09
7 Date of counting of votes 22.10.09
8 Date of declaration of result 22.10.09
(iii) The records reveal that in the said election, as many as 429 (four hundred and twenty nine) Postal ballots were issued by the Returning Officer of No. 30 Aalo West Assembly (ST) Constituency. These Postal ballots were meant for those voters of the constituency, who were government servants and had been assigned election duties. Accordingly, as per the notified program, the voters concerned were allowed to receive the Postal ballots personally and cast their votes at the Postal Ballot Facilitation Centre from 6-10-2009 till 11.10.2009. Records also reveal that till the end of working hour on 11.10.2009, as many as 339 postal ballots were issued to the applicants by the In-Charge, Postal Ballot Cell, as well as the Presiding Officer, Postal Ballot. The remaining 90 postal ballots (later on, clarified as 89 Postal ballots) of No. 30, Aalo West Assembly (ST) Constituency, were booked by registered post, on 12.10.2009, at the Along Mukhya Dak Ghar (Aalo Post Office) by Sri Gomo Sora, Presiding Officer, Postal Ballot. The official records, maintained by the Returning Officer as well as the Postal Department, confirm the fact that as many as 69 postal ballots , out of the 89 Postal ballots mentioned hereinbefore, went missing from Along Post Office after those had been booked by registered post, at Aalo Mukhya Dak Ghar (MDG), on 12.10.2009. Postal records further establish the fact that those 69 Postal ballots were never delivered by the Postal Department 4 to the respective applicants at any point of time and those remained, in terms of the relevant postal records, traceless till today (though the said 69 postal ballots reached the Returning Officer, as would be described below, through unauthorised channel). The fact, that the postal ballots remained traceless, has been communicated to the Election Petitioner by the Deputy Superintendent of Postal Services, Arunachal Pradesh, by his letter, dated 20.11.2009, in response to an application made by the election petitioner under the Right to Information Act, 2005, seeking information in this regard.
(iv) On having learnt about the missing postal ballots only on 17.10.2009, the election petitioner and her agents had made several representations before various authorities drawing their attention to the said incident with a further request to, immediately, conduct an investigation and trace out the missing postal ballots. The said representations and/or complaints include the complaint, dated 17.10.2009 (Exhibit- PX-21), two First Information Reports, both dated 20.10.2009 (Exhibits PX- 22 and PX- 23 respectively), lodged by Shri Kirdo Ete ( PW-21), i.e., the Election Agent of the petitioner, as well as the complaints made by Shri Jumrik Ete (PW- 24), agent of the petitioner, on 19.10.2009 (Exhibit- PX- 28), before the Officer-in-Charge, Itanagar Police Station, with copies marked to the Chief Electoral Officer, Arunachal Pradesh, and the District Election Officer, West Siang District, Aalo. Even Shri D.K.Deka (PW- 47), Post Master, Along Post Office, had written letters, dated 17.10.2009 (Exhibit- PX- 47) and 21.10.2009 (Exhibit- PX- 50), informing the Returning Officer about the said missing postal ballots .
(v) On the basis of the complaints made by, and on behalf of, the petitioner, a Departmental Investigation was conducted by the 5 Postal Department, which disclosed that 69 Postal ballots had, in fact, gone missing from Along Post Office. The investigation, so conducted, revealed that, on 20-10-2009, at about 7.00 am, one unknown person had handed over a bundle of 65 Postal ballots to Smti. Sukuni Sharma, a Gramin Dak Mail Service Carrier (GDSMC), outside Along Post Office, under threat with an instruction to hand over those Postal ballots to the Assistant Returning Officer (ARO) of the Constituency. Smti. Sukuni Sharma had, accordingly, received all those 65 Postal ballots from the unknown person, outside the Post Office, and, thereafter, handed over those 65 postal ballots to the ARO, Shri Kangki Darang, in the evening of 20.10.2009, who, in turn, received the same and, thereafter, handed over the said 65 Postal ballots to the Returning Officer on the same day. Later on, it transpired that the unknown person was Sri Darka Kamsi, an INC worker and counting agent of the Respondent. Sri Jayanta Bhattacharya, Inspector of Post Office, who had conducted the inquiry, also recorded the statement of Sukuni Sharma and other witnesses in his own hand writing, which were part of the record pertaining to the inquiry report, dated 21-10-2009 (PX-44). The statement of Sukuni Sharma had also been submitted before the Returning Officer on 21-10-2009.
(vi) The records confirm the fact that those 65 Postal ballots, received by Smti Sukuni Sharma from the said INC worker outside the Post Office, were all part of the 69 Postal ballots that had gone missing from Along MDG after being booked by registered post on 12.10.2009. It has also surfaced from investigation that all of those 65 Postal ballots were fraudulently cast in favour of the Respondent (INC).
(vii) On 20.10.2009, as many as 13 applicants of Postal ballots submitted 13 Affidavits [PX- 51 (1) to (13)] before the Returning Officer 6 testifying to the effect that the Postal ballots , issued in their names, by post, had not been received by them. On 21.10.2009, the election agent of the petitioner had made a formal complaint before the Returning Officer (Exhibit- PX- 27) requesting him to cancel all those 65 Postal ballots , which had illegally received by Smti. Sukuni Sharma from unauthorised channel.
(viii) Upon going through the said complaint and, on examination of the materials available before the Returning Officer, the Returning Officer had, initially, taken a decision to cancel all those 65 Postal ballots recovered/received through Smti. Sukuni Sharma from unauthorized source holding them to be tempered and illegal. However, having made such a declaration in presence of both the contesting candidates and their supporters, the Returning Officer, later on, shifted his stand and issued an order, dated 22.10.2009 ( Exhibit- PX- 52), cancelling only 48 Postal ballots , out of those 65 ( sixty-five) Postal ballots , which were received through Sukuni Sharma.
(ix) Thus, by the order, dated 22.10.2009, the Returning Officer received 17 Postal ballots , from the bundle of 65, even after identifying all those Postal ballots as spurious Postal ballots . Having, thus, rejected the 48 Postal ballots by order, dated 22-10-2009, with a further direction to keep those in a sealed packet, at the time of counting, the Returning Officer, eventually, counted, surprisingly enough, another 23 (twenty three) cancelled postal ballots from the said bunch of 48 postal ballots already cancelled by him by order, dated 22.10.2009.
(x) Thus, in the manner aforementioned, the Returning Officer, in fact, counted, in favour of the respondent, as many as 40 (17 + 23) tampered Postal ballots even after identifying those Postal ballots as 7 spurious. In doing so, the sole purpose of the Returning Officer, who had been influenced by the respondent and his election agent, who were personally present at the counting venue at the time of counting of the votes, was to assist the respondent to win the election by hook or by crook. Thus, under the influence of the respondent, the Returning Officer had improperly received all the said 40 (forty) Postal ballots knowing them to be spurious and, thereafter, illegally counted those Postal ballots in favour of the respondent (i.e., the returned candidate).
(xi) That besides the said 40 Postal ballots , the Returning Officer had also illegally and improperly received and counted, in favour of the Returned Candidate, one Postal Ballot issued in the name of Shri Jai Prakash Tiwari (counterfoil No.00053) despite the fact that his name had been deleted from the Electoral Roll of the said assembly constituency. The Returning Officer had also improperly received and counted, in favour of the returned candidate, 2 (two) Postal ballots under Counterfoil Nos. 000234 and 000316, both issued in the name of one Shri Karto Ete, whose name was included twice, in the Electoral Roll, in Part- 13, Serial No. 430 and, again, in Part-14, Serial No. 320. The Returning Officer had further improperly received and counted, in favour of the returned candidate, one postal ballot bearing Counterfoil No. 000407, issued in the name of Miss Jompi Padu, a school student, against Form-12 application of Shri Nyojum Ete. It is worth mentioning that as per the list, submitted by the Postal Department, the Postal Ballot, issued to Shri Nyojum Ete, also forms part of the 69 ( sixty-nine) Postal ballots , which went missing after those had been booked, at Aalo Post Office, on 12.10.2009. Thus, including the 40 spurious Postal ballots belonging to the bundle of 65 as mentioned hereinbefore, the Returning officer had improperly received and counted, in total, in favour of the returned 8 candidate, as many as 44 void votes, which materially altered the result of the election.
(xii) It is also the specifically pleaded case of the Election Petitioner that as many as 69 ( sixty-nine) Postal ballots were stolen by the supporters of the respondent under his instruction and with the help of Postal Officials, namely, Shri D.K.Deka, Shri Jatin Dihingia and also Postal Ballot Presiding Officer, namely, Shri Gomo Sora. All those stolen Postal ballots were forged and tampered with by the respondent and his election agent with the help of their supporters and, thereafter, fake vote was cast in each of those postal ballots in favour of the returned candidate. Thereafter, those stolen and tampered Postal ballots, numbering 65 in total, were bundled up and secretly handed over to Smti. Sukuni Sharma, under intimidation, outside the post office by Darka Kamsi, a supporter of the returned candidate, with the instruction to hand over the entire bundle to the Assistant Returning Officer, Shri Kangki Darang. The ARO had actually received the bundle of 65 Postal ballots from Sukuni Sharma and delivered those to the Returning Officer with full knowledge and understanding that those postal ballots were spurious. Thereafter, acting under pressure and influence of the respondent and his election agent, Shri Deba Loya, the Returning Officer, Amjad Tak, had received and counted 40 of those tempered Postal ballots in favour of the returned candidate despite already having arrived at a categorical conclusion that those were all spurious ballots containing void votes. The Returning Officer had accepted the 17 tampered Postal ballots on being influenced by the respondent. It is also the pleaded case of the petitioner that, on 22-10-2009, the respondent was present in the counting hall and, when the respondent was seen to have been losing the election on the EVM count, the respondent further influenced the 9 Returning Officer to count as many as 23 forged Postal ballots in his favour from the batch of the 48 rejected Postal ballots and the Returning Officer did so, without offering any explanation therefor, but with the obvious motive to brighten the respondent‟s wining prospect.
(xiii) The election petitioner has, therefore, sought for a direction, under Section 100 (1) (d) (iii) of the Representation of the People Act, 1951, (in short, „the ROP Act‟), declaring the election of the Returned Candidate to be void on account of improper reception of as many as 44 void Postal ballots . The Election Petitioner has also sought for a further direction, under Section 101 of the ROP Act, declaring her as the elected candidate on the ground that she had, in fact, received a majority of the valid votes at the election to the said constituency.
(xiv) The election petitioner has further sought for a declaration that the election of the respondent to the 30 Aalo West (ST) Assembly Constituency is illegal, null and void on the ground of commission of corrupt practice within the meaning of Section 123 (7) of the ROP Act, 1951.
2. The respondent has resisted the election petition by filing his written statement, wherein the respondent has not specifically denied the averments, which have been made by the election petitioner as regards the fact that 65 numbers of postal ballots , booked at Along Post Office, had gone missing. The respondent has contended that the election petition is absolutely vague, non-specific and does not disclose material facts and material particulars and, thus, it does not conform to the requirement of Section 83 of the ROP Act, 1951. That the election petition does not disclose any „cause of action‟ and the election petition suffers from non-joinder of necessary parties. The respondent further 10 contends that the statements, made in the election petition, are not verified in terms of the legal requirement apart from the fact that the allegations made therein are vague and bereft of any necessary particulars.
3. It is, at this stage, worth pointing out that the respondent had challenged the maintainability of the election petition on several grounds, namely, that the true copy of the election petition had not been attested by the election petitioner, the election petition is bereft of material facts and material particulars and/or that the election petition does not disclose any cause of action, etc. By order, dated 19.08.2010, passed, in M.C.(EP) No.04(AP)/2010, the election petition was held by this Court (Hon‟ble P.K. Musahary,J.) as maintainable and this decision has been upheld by the Supreme Court by order, dated 20.04.2011, passed in SLP (Civil) No.26152/2010.
4. The respondent had reserved the right to file additional or supplementary written statement, within appropriate time, as may be needed by him subject to grant of proper leave. However, neither any further written statement has been filed by the respondent nor has any reason for not filing such further written statement been assigned by the respondent. The pleadings, contained in the written statement, as filed by the respondent, therefore, have remained what they were.
5. Though the respondent denied that there was any improper reception of postal ballots in favour of the returned candidate, or that the respondent, by himself or through his election agent, or any other person, acting with his consent, is guilty of committing any corrupt practice within the ambit of Section 123(7) of the ROP Act, 1951, as 11 alleged by the election petitioner, the respondent has, as already indicated above, neither disputed nor denied the fact that 65 numbers of postal ballots went missing. The respondent has not he denied that the Returning Officer had specifically announced, in presence of both the parties, that 65 numbers of postal ballots , which had been received by Sukuni Sharma, would not be counted; but, later on, 17 postal ballots , out of the said bundle of 65, were counted and, thereafter, 23 more postal ballots were allowed to be counted without assigning any reason therefor and, thus, altogether 40 (23+17) postal ballots , out of the said earlier rejected 65 postal ballots , were counted and, on being so counted, these postal ballots were found to have been received by the returned candidate. In fact, without denying, in specific terms, the role of Sukuni Sharma as recipient of a bundle of 65 postal ballots , the respondent has alleged to the effect that Sukuni Sharma is involved with the election petitioner in falsely implicating the respondent.
6. Thus, the averments, made by the election petitioner to the effect that as many as 40 tampered/forged/spurious postal ballots were counted in favour of the respondent, remained without being specifically or pointedly denied. In fact, at para 14 of his written statement, the respondent has taken the plea that "it is impossible for the answering respondent to either affirm or deny the statements specifically in exercise of his right of defence in the instant proceeding". This apart, the respondent has not pleaded his version of the incident. Despite the fact that the incident of postal ballots having gone missing, the act of receiving a bundle of 65 postal ballots out of the 69 missing postal ballots , by the postal employee, namely, Sukuni Sharma, had been, in the light of the election petition, within the knowledge of the respondent well before the counting process had commenced, but the 12 correctness of the averments, made, in this regard, by the election petitioner, having not been denied, the same have to be treated as admitted facts.
7. Bearing in mind what is indicated above, let me, now, come to the issues. Based on the pleadings, the following issues were framed:
a. Whether the election petition discloses any 'cause of action'?
b. Whether there was any improper reception and counting of 44 (forty four) void postal ballots in favour of the returned candidate materially affecting the result of the Election?
c. Whether there was delivery of as many as 65 forged, spurious, fake and tampered postal ballots by some unknown persons to Smti. Sukuni Sharma, a postal employee of Along Mukhya Dak Ghar, outside the post office beyond the office hours , who in turn delivered the same to Assistant Returning Officer on 20.10.2009?
d. Whether any of those forged postal ballots have been received and counted by the Returning Officer in favor of the returned candidate materially affecting the result of the election in question?
e. Whether the respondent is guilty of commission of corrupt practice as defined under Section 123(7) of the R.P. Act, 1951?
f. Whether the election petitioner has, in fact, received the majority of the valid votes polled in the election and hence, entitled to a declaration under Section 100(d) of the R.P.Act, 1951?
g. Whether the election petitioner is entitled to a declaration under Section 101 of the R.P.Act, 1951, that she has been duly elected to 30 Aalo West Assembly Constituency in the election held on 13.10.2009?
h. To what other relief(s), the election petitioner is entitled to under the law?"
13
8. I have heard Mr. N Dutta, learned Senior counsel, and Mr. S. Shyam, learned counsel, for the election petitioner. I have also heard Mr. DK Mishra, learned Senior counsel, and Mr. M. Nath, learned counsel, for the respondent.
9. In support of her case, the election petitioner has adduced evidence, both oral as well as documentary, by examining 53 witnesses including herself. The respondent, too, has adduced oral evidence by examining witnesses including himself and his witnesses.
10. Let me, now, consider the issues and take decisions thereon.
Issue No. a :- Whether the election petition discloses any 'cause of action'?
11. Before entering into the question whether the election petition discloses any „cause of action‟, it may be pointed out that „cause of action‟ implies a right to sue. „Cause of action‟ is not defined in any statute. It has, however, been judicially interpreted, inter alia, to mean every fact, which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Thus, the material facts, which are imperative for the suitor to allege and prove, constitute the „cause of action‟. Negatively put, it would mean that everything, which, if not proved, gives the defendant an immediate right to judgment, would form part of „cause of action‟, [Kusum Ingots and Alloys Ltd. Vs. Union of India, reported in (2004) 6 SCC 254].
12. What is, now, of immense importance to note is that the question as to whether the pleadings, in the Election Petition, are or are not true and correct, would be a question of fact, but these pleadings, for the 14 purpose of determining the „cause of action‟, have to be assumed to be true and correct and, on this assumption and basis, the Court is required to determine whether the facts, so pleaded, if remain without being traversed, would entitle the election petitioner to the reliefs, which she has sought for and, if the pleadings, in question, entitle her to the reliefs, which she seeks, then, the Court is bound to hold that the election petition discloses „cause of action‟.
13. What may, now, be noted is that the election petitioner has pleaded, in Paragraphs 10 (I) to Paragraphs 10 (XX) of the Election petition, the facts and particulars regarding the void postal ballots , which were improperly received and counted in favour of the respondent. In paragraph 10 (I) to paragraph10 (VI) of the election petition, the election petitioner has given the detailed facts and particulars of the Postal ballots of 30 Aalo West Assembly Constituency, which had been booked, by registered post, on 12.10.2009, but, ultimately, went missing from the post office. At paragraph10 (XII), the election petitioner has given, in tabular form, the particulars including the registered letter numbers, names of the applicants, who applied for postal ballots in respect of 30 Aalo West (ST) Assembly Constituency, which had been booked, on 12.10.2009, for despatch to the respective applicants. In Table AA of the election petition, the particulars of those postal ballots , which were delivered to the addressees, numbering 22, have been furnished and in Table AB, particulars of those 69 postal ballots (actually 68, since the name of Tonya Padu has been erroneously mentioned twice), which were allegedly never delivered to the applicants, have been furnished. From Paragraph10 (XIII) to 10 ( XXII) of the election petition, it has been specifically pleaded as to the manner 15 in which the respondent succeeded, with the help and complicity of the postal ballot presiding officer, Gomo Sora, and the other postal officials, in getting the said illegal and void postal ballots counted in his favour. In paragraphs 10 (XIV) of the Election petition, it has been specifically pleaded that the 65 missing postal ballots were forged and tempered by the respondent, whereby fake votes were cast by his agents in favour of the respondent. In paragraph 10 ( XV) and 10 (XVI), the election petitioner has categorically pleaded that as many as 40 postal ballots , out of the bundle of 65 forged postal ballots , were counted in favour of the respondent. In paragraph 10 ( XVII) to (XIX), the election petitioner has pleaded the facts and particulars in support of the allegation that as many as 4 ( four) postal ballots , issued in the names of Jaipraksh Tiwari, Karto Ete, Jompi Padu and Penya Ete, were improperly received and counted in favour of the respondent. In paragraph 10 (XII) of the election petition, the petitioner has categorically pleaded as to how the improper reception of postal ballots , numbering 44 (forty four), has materially affected the result of the election.
14. In paragraph 11 of the election petition and 40 sub-paragraphs, numbered as (I) to (XL), the election petitioner has pleaded full material facts and particulars in support of her allegation of corrupt practice committed by the respondent himself and his election agent. In paragraph 11 (II), the election petitioner has specifically pleaded that reception of the Postal Officials were unduly influenced by the respondent himself and his election agent, Deba Loya. In the various sub-paragraphs of paragraphs 11 (III) to 11 (XXI), the election petitioner has pleaded the material facts and particulars showing the manner in which the corrupt practice, alleged against the respondent, had been 16 planned and perpetrated by him as well as the various attempts made by the election petitioner and her agents to prevent such corrupt practice. In paragraph 11 (XXII) to (XXVI), the election petitioner has specifically pleaded as to the time, mode and manner in which the respondent himself and his Election Agent had influenced the Returning Officer and obtained his assistance in furthering the respondent‟s poll prospects thereby committing corrupt practice within the meaning of Section 123 (7) of the ROP Act, 1951. For the sake of ready reference, the pleadings, contained in paragraph 11 (XXII) to (XXVI), are reproduced below:-
" (XXII) That the complaint dated 21.10.09 lodged by Sri Kirdo Ete, Election Agent, TMC, 30 Aalo West Assembly Constituency was taken up for consideration by the Returning Officer on 22.10.09 in presence of the Agents of both the contesting candidates and before commencing the counting of the Postal ballots . On examination of the contents of the complaint dated 21.10.09 as well as the material evidence and correspondences available on record, the Returning Officer had initially made a declaration in presence of the Election Agents of the Petitioner as well as the Respondent that all of those 65 (sixty five) Postal ballots recovered from the custody of Smti Sukuni Sharma out side the Post Office, which were easily identifiable, were forged and tampered and hence invalid in the eye of law. The Returning Officer had taken a decision not to admit any of those 65 Postal ballots in the counting process.
(XXIII) That having declared that all the 65 postal ballots were tampered and hence stands rejected, curiously enough, later on acting under pressure and undue influence of the Respondent, the Returning Officer had changed his earlier stand and decided to reject only 48 Postal ballots from the aforesaid bunch of 65 handed over to Smti. Sukuni Sharma outside the Post Office by un indentified persons. Accordingly, the Returning Office, Sri Amjad Tak, IAS, had passed an order dated 22-10-2009 during the period when the counting of Postal ballots was going on. It may be stated herein that in the order dated 22-10-2009 the Returning Officer had not only taken note of all the materials on record suggesting that the genuine applicants did not receive the said Postal ballots but he had also recorded a finding of fact that those 65 Postal ballots were found by Smti Sukuni Sharma from out side the Post office. Smti Sukuni Sharma has even made a statement in writing addressed to the Returning Officer confirming the fact that those 65 ballots were hand delivered 17 to her outside the Post Office by some unknown person under threat.
(XXIV) That from a bare perusal of the said order dated 22-
10-2009 passed by the Returning Officer, it would be apparent on the face of the record that he has acted in most biased and unfair manner in picking and choosing only 48 Postal ballots from the bunch of 65 forged Postal ballots for the purpose of rejection. Save and except the influence exerted by the Respondent, there was absolutely no reason or basis for the Returning Officer to accept any of those 65 forged Postal ballots , let alone the 17 accepted by him by the order dated 22-10-2009.
(XXV) That the extremely bias and partisan attitude of the Returning Officer would further appear from the fact that even after having categorically rejected those 48 Postal ballots by the order dated 22-10-2009 , as aforesaid, the Returning Officer had eventually counted as many as 23 Postal ballots from the lot of those 48 rejected Postal ballots which were admittedly tampered and hence kept in a separate bunch.
(XXVI) That it is stated and submitted that in the manner indicated here-in-before, notwithstanding the order dated 22-10-2009 as well as all the official correspondences regarding the 69 missing Postal ballots , ultimately the Returning Officer had actually accepted as many as 40 Postal ballots from the bunch of 65 tampered and forged Postal ballots which were all void votes. Only 25 Postal ballots from the bunch of 65 forged Postal ballots had ultimately been rejected by the Returning Officer on having found those as invalid."
(Emphasis is added).
15. Bearing in mind what has been held above, it may be further pointed out, as already indicated above, that this election petition challenges the election of the respondent on two grounds, namely, (i) „improper acceptance‟ of postal ballots and (ii) corrupt practice allegedly indulged in by the respondent.
16. With regard to the above, the pleaded case of the election petitioner is that as many as 69 numbers of postal ballots, which were addressed to the voters of 30 Aalo West Assembly Constituency, were booked, at Along Post Office, by registered post. Out of the postal 18 ballots so booked by registered post at the said post office, as many as 69 postal ballots went missing. Out of the said 69 missing postal ballots , 65 postal ballots were handed over to Sukuni Sharma, an employee of the said post office, by an unauthorized person, whose identity, later on, came to light as Darka Kamsi, a counting agent of the election petitioner. As regards reception of postal ballots by Sukuni Sharma, a First Information Report was lodged with the police and a case was registered in this regard.
17. It is also the pleaded case of the election petitioner that on the basis of the investigations, which were carried on by the Police as well as the Postal Department into the causes of missing postal ballots and, on the representation made by the election petitioner that the postal ballots , received through unauthorized channel by Sukuni Sharma, ought not to be counted, the Returning Officer, initially, kept, out of the said 65 postal ballots, 48 postal ballots excluded from counting, but decided to nevertheless count, without assigning any specific reason, 17 ballots from the said bundle of 65 postal ballots .
18. The further pleaded case of the election petitioner is that when the respondent was found losing the election, as many as 23 postal ballots , out of the said 48 postal ballots , which had been, initially, kept excluded from the counting by the Returning Officer, according to the election petitioner, were counted in favour of the respondent by the order of the Returning Officer. Thus, altogether, 40 postal ballots (i.e., 17+23) were counted at the time of counting on 22.10.2009. If these postal ballots, which were counted in favour of the respondent, had 19 been kept excluded from counting, the election petitioner would have won the election.
19. It is the specifically pleaded case of the election petitioner that for the reception of 40 forged, tampered and fabricated postal ballots , no explanation has been offered by the Returning Officer. This apart, one postal ballot was issued in favour of Jay Prakash Tiwari, whose name had already been removed from electoral rolls and the postal ballot, so issued in favour of Jay Prakash Tiwari, could not have been and ought not to have been counted at the counting. Similarly, two postal ballots were issued to one elector, namely, Kirdo Ete. In the face of these facts, none of the said two postal ballots, in terms of Section 62 of the ROP Act, 1951, could have been counted. Furthermore, one postal ballot was, admittedly, issued in favour of Jompi Padu, who is, concededly, a student and, being a minor, no postal ballot could have been issued to her. This postal ballot was issued against an application, which had been made, in Form-12, by one Nyojum Ete and the postal ballot, issued in the name of Nyojum Ete is shown missing from the post office. This postal ballot too was, for no explained reason, counted in favour of the respondent.
20. What may, now, be pointed out is that the facts, so pleaded in the election petition, may or may not be true. However, for the purpose of determining as to whether the election petition discloses any „cause of action‟ or not, the facts, pleaded in the election petition, have to be assumed as true and correct and if one proceeds on this assumption, it becomes clear that the election petition contains sufficient pleadings as regards acceptance of, or improper reception of, postal ballots , which 20 is a ground, under Section 100 (1)(iii) of the ROP Act, 1951, to declare the election of the returned candidate illegal. The facts, so pleaded, thus, constitute a sufficiently clear „cause of action‟ for filing this election petition.
21. Yet another ground on which the election of the respondent is challenged is the ground of corrupt practice allegedly indulged in by the respondent. In this regard, the election petitioner‟s specific allegation is based on Section 123(7) of the ROP Act, 1951, which lays down to the effect that at attempt of a candidate or his election agent, even without the consent of the candidate, to obtain or to procure any assistance from any person for furtherance of the prospects of the candidate‟s election amounts to corrupt practice and, more so, when the persons concerned are not only Government servants, but Gazetted Officers, such as, the Returning Officer.
22. Corrupt practice, according to the election petitioner, stands established inside the counting hall itself, when the respondent and his agents insisted upon the Returning Officer to count the rejected postal ballots and, on such insistence, 23 postal ballots , as mentioned above, were counted as per the order of the Returning Officer and the said 23 postal ballots , when counted, were found to have been cast in favour of the respondent. For counting the said 23 postal ballots, no explanation could be offered by the Returning Officer. Thus, the election petition also makes out a „cause of action‟ for challenging the election on the ground of „corrupt practice‟.
23. In the present case, if the pleadings, in the written statement, are assumed to be true and correct, it becomes abundantly clear that the 21 pleadings, contained therein, disclose „cause of action‟. In fact, nothing material or significant could be submitted, on behalf of the respondent, to show that the pleadings, if remain unchallenged and assumed to be true, would not disclose „cause of action‟ and entitle the election petitioner to the reliefs, which she has sought for.
24. Situated thus, this Court has no hesitation in holding that the Election Petition does disclose „cause of action‟. The issue No.a is, therefore, answered in the affirmative and in favour of the election petitioner.
25. Let me, now, come to issue Nos. b, c and d, because all these three issues are inextricably inter-linked with each other and the decision, on any of these issues, would have a material bearing on the outcome of the remaining issues.
26. The issue Nos. b, c and d read as under:
b. Whether there was any improper reception and counting of 44(forty four) void postal ballots in favour of the returned candidate materially affecting the result of the election?
c. Whether there was delivery of as many as 65 forged, spurious, fake and tampered postal ballots by some unknown persons to Smti. Sukuni Sharma, a postal employee of Along Mukhya Dak Ghar, outside the post office beyond the office hours , who in turn delivered the same to Assistant Returning Officer on 20.10.2009?
d. Whether any of those forged postal ballots have been received and counted by the Returning Officer in favor of the returned candidate materially affecting the result of the election in question?22
27. These issues pertain to the improper acceptance of postal ballots and since the difference of votes between the petitioner and the respondent is thin, the improper acceptance of postal ballots, alleged to be tampered, has been projected as one of the grounds for declaring the election void.
28. Section 100 of the ROP Act, 1951, provides as follows:
"Grounds for declaring election to be void.
(1) Subject to the provisions of sub- section (2), if the High Court is of opinion-
(a) ................................ or
(b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or
(c) .................................; or
(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected.
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate 5[ by an agent other than his election agent], or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void."
29. The grounds, mentioned in Section 100 (d)(iii), are relevant in the present context.
30. In her evidence, the petitioner deposed that the respondent, Shri Gadam Ete, had contested the election as a candidate from Indian National Congress ( in short, the INC‟), and was the only contesting candidate against the election petitioner from No. 30 Aalo West 23 Assembly (ST) Constituency. The result of the election was declared, on 22.10.2009, wherein the respondent was declared as the elected candidate having 5113 votes polled in his favour as against the 5082 votes polled in favour of the election petitioner, the difference, in votes, obtained by the petitioner and the respondent, being 31 (thirty one) votes only. In terms of the votes, counted from the Electronic Voting Machines (in short, „EVMs‟), it is the election petitioner, who would have won the election, but because of the fact that as many as 45 postal ballots, which were, otherwise, spurious and forged, had been counted, though there was specific order passed earlier by the Returning Officer not to count these postal ballots inasmuch as they had been received by the authorities concerned through illegal and unauthorised channels. The respondent, thus, came out as the returned candidate. The difference in the votes was, according to the election petitioner, due to improper reception of the forged, tampered and spurious postal ballots and illegal counting thereof.
POSTING OF POSTAL BALLOTS AND RECEIPT BY THE POST OFFICE
31. While considering the above issues, it is imperative to point out that Ext. PX 56 is a register, which would go to show that 89 registered letters, each containing one postal ballot, pertaining to the voters of 30 Aalo West Assembly Constituency, were booked, by registered post, on 12.10.2009, by Gomo Sora (PW43), Presiding Officer, Postal Ballot, who has confirmed this fact in his deposition and whose evidence has gone unchallenged. There is also no dispute that as many as 89 postal ballots were received by Postal Assistant, Jatin Dihingia (PW46), from Gomo Sora, on 12.10.2009, by putting his signature, which stands proved as Ext. 24 PX 56(1).This fact has been confirmed by Jatin Dihingia (PW46) too. Jatin Dihingia (PW46) has deposed, in his evidence, as follows:
"at about 5.30 am, on 12.10.2009, Mr. D.K.Deka, our post master, at Along, came to my official quarter and knocked at the door of my residence and, on my opening the door, he asked me to come to the official quarter. When I went there, I found there present one man, who was introduced to me by Mr. Deka as Gomo Sora, who gave me a list and told me that the said list contains the names of the persons, who would be issued postal ballots and that I should keep the list with me and give him the postal ballots of persons, named in the list, after I receive the postal ballots during the course of the day."
32. PW46 (Jatin Dihingia) has also deposed that he was earlier scared, but he, ultimately, decided to speak the truth and with the decision, so taken, he feels less frightened, but he is still scared. PW46 has reiterated, in his cross-examination, that at his residence, in presence of Gomo Sora, Mr. D.K. Deka (PW47) told him (PW46) that the political parties were strong and he (PW46) should do what he has been asked to do. Though PW46 has acceded that the facts, which he has deposed in the election trial, had not been stated by him earlier neither at the time, when his statement was recorded by police, nor in his departmental proceeding, because he was scared.
33. What is important to note, in the evidence of PW46, is that he has deposed that nobody has threatened him on the day, when he gave evidence in the Court, but he clarified that he had been, during the last two years, under tremendous mental pressure, because he had not spoken the truth mainly because of the fact that their Post Master (i.e., D.K. Deka), did not correctly inform their Head Office about the postal ballots . PW46 has further clarified that it was on 12.10.2009 that he was 25 put in fear, when D.K. Deka told him about the strength of the parties involved.
34. Responding to the suggestion of the respondent that his statement, given on both days, were false, PW46 has reacted by saying that whatever he stated „yesterday‟ was true except that he could not complete his statement „yesterday‟ and could not tell the whole truth.
35. Though it has been contended by Mr. Mishra that PW46 cannot be relied upon, because of the fact that he had a somersault on the next day, i.e., on 30.09.2011, the evidence of PW46, given on 30.09.2011, was not a somersault, but the complete truth, which he has clarified in his cross-examination. It was not even suggested to PW46 that he was giving his statement under threat or at behest of, or being influenced by the election petitioner, her election agent or supporters.
36. It is of utmost significance to note that it was not even suggested to PW46 by the respondent that the evidence, given by him (PW46), was under threat, coercion, persuasion or influence of the election petitioner. There was, in fact, no damaging cross-examination of PW46 and nothing has been elicited from his cross-examination to show that what he deposed were false or untrue or that the evidence, given by him, were under the influence of the election petitioner.
37. The suggestion, therefore, offered to PW46 by the respondent to the effect that his evidence is false has remained as a mere suggestion and cannot either weaken the case of the election petitioner nor strengthen the case of the respondent. Far from this, the evidence of PW46 supports the election petitioner‟s case that from the very inception, manipulation of postal ballots was designed and 26 implemented with the help of the Government servants. The evidence of PW46 inspires great confidence and this Court sees no reason to disbelieve or discard his evidence as unworthy of trust. In fact, if I may reiterate, nothing has been elicited from the cross-examination of PW46 by the respondent to show that this witness‟s evidence cannot be trusted or relied upon.
MISSING OF POSTAL BALLOTS AT THE RECEIVING POST OFFICE
38. PW2 (C.L. Lalfakzuala), who is Director of Postal Services, Arunachal Pradesh, produced the record (PX33) showing delivery status of the postal ballots, in question, as per official record maintained by the Postal Department. The said document (PX33) bears the registered letter numbers, names of the postal ballot applicants as well as the destination Post Offices confirming the fact that as many as 69 postal ballots, out of the said 89 postal ballots, had never been delivered to their respective applicants and remained traceless.
39. On the basis of the complaints made by, and on behalf of, the petitioner, a Departmental Investigation was conducted by the Postal Department. PW3 (Jayanta Bhattacharjee), an Inspector of Post Offices, has proved Ext. PX44 as his enquiry report, dated 21.10.2009.
40. PW2 has also proved Ext. PX 8 as well as the signature thereon were given by the then Postal Deputy Superintendent, A.K. Shyam, who has since retired from service. PW2 has also confirmed that Ext. PX8 was issued to the election petitioner by A.K. Shyam, the then overall in- charge of the Postal Department, in response to an application, made under the Right to Information Act, 2005, and the same was provided on the basis of an enquiry conducted by the Postal Department. PW2 has also produced Ext.PX38, in original, which is the enquiry report, dated 27 21.10.2009, submitted by Shri Jayanta Bhattacharjee, Inspector of Post Office, Central Sub-Division, Pasighat. PW2 has further produced, in original, the statement of Sukuni Sharma recorded by said Jayanta Bhattacharjee. PW2 has also produced Ext. PX 43, which is the office copy of Ext. PX8, which had been earlier furnished to the election petitioner under the Right to Information Act, 2005. PW2 has produced from his custody the copy of the letter, dated 20.11.2009, in original, issued by A.K. Shyam to the Returning Officer marked as Ext. PX 36 recording the communication of the Postal Department to the Returning Officer regarding missing postal ballots.
41. This witness (PW2) has also confirmed that a proceeding has been drawn against Sukuni Sharma in connection with the missing postal ballots and that charge-sheet has been issued not only to D.K. Deka, but also Jatin Dihingia (PW46).
42. Coupled with the above, the Returning Officer (PW30) and the Assistant Returning Officer (PW49) have also confirmed the fact that 89 postal ballots were issued to the voters of 30 Aalo West Assembly Constituency and had been booked, by registered post, at Along Post Office on 12.10.2009. Ext. PX 58, produced by PW30, is the computerised receipt of 168 registered letters containing postal ballots booked at Along Post Office on 12.10.2009, which bears the booking record of those 89 postal ballots . It may be noted that Ext. PX26(2) is the copy of Ext.PX58, which was earlier provided to the election petitioner by the Assistant Returning Officer in response to her application made under the Right to Information Act, 2005.
43. It is also worth noticing that Ext. PX5 is the letter, dated 03.11.2009, issued by Itanagar Head Post Office under the signature of the Post 28 Master, Deputy Post Master and the Postal Assistant furnishing particulars of 57 postal ballots of 30 Aalo West Assembly Constituency, which were never received by Itanagar Post Office. The respective Sub-Post Masters, i.e., PWs 34 to 39, have also confirmed that they had never received the postal ballots addressed to the respective post offices.
44. The evidence, as discussed above, leaves no room for doubt that the postal ballots went missing at the receiving post office. ROLE OF SUKUNI SARMA & RECEIPT OF POSTAL BALLOTS BY THE ASSISTANT RETURNING OFFICER
45. Coming to the evidence of Sukuni Sharma (PW4), it may be noted that in her evidence, she has confirmed the fact that 65 letters, addressed to the Assistant Returning Officer, were received by her, on 20.10.2009, at about 7 am, from one person, whom she has identified as Darka Kamsi. It may be noted, in this regard, that Darka Kamsi was also a counting agent of the respondent at the place of counting. In her cross- examination by the election petitioner, on being declared hostile, PW4 (Sukuni Sharma) has admitted that she stated before the enquiry officer (PW3) that there were postal ballots inside the 65 envelopes, which had been handed over to her. PW4 has also confirmed the fact that the Assistant Returning Officer took, on 20.10.2009, the said 65 letters from her.
46. PW4 has proved her statement and her signature recorded by the Enquiry Officer (PW3). In fact, in her evidence, PW4 has, in no uncertain words, deposed, "I knew Darka Kamsi for a long time before he handed over 65 numbers of letters to me." This witness has further confirmed that she had taken the 65 postal ballots.
29
47. Surprisingly enough, however, the respondent did not even suggest to PW4 challenging the truthfulness or correctness of her assertion that she had received the postal ballots from Darka Kamsi. It is to be noted that it has not been the case of the respondent that 69 postal ballots of 30 Aalo West Assembly Constituency did not go missing after the same were booked, by registered post, on 12.10.2009, at Along Post Office nor is it the case of the respondent that 65 postal ballots were received illegally through Sukuni Sharma.
48. What is most surprising is the fact that there is no denial by the respondent that the said 65 postal ballots, received through unauthorised channel by Sukuni Sharma, form part of the 69 postal ballots, which went missing from Along Post Office. This apart, the Returning Officer (PW30) has confirmed the fact that 65 postal ballot papers, which were in his custody on 20.10.2009, were illegally received by Sukuni Sharma on 20.10.2009 and the said fact has also been reflected in his (Returning Officer‟s) order, dated 22.10.2009, which is marked as Ext. PX52.
49. It has, therefore, surfaced unscathed by clear, cogent, reliable and trustworthy evidence on record that out of 89 postal ballots of 30 Aalo West Legislative Assembly Constituency, booked by registered post, at Along Post Office, on 12.10.2009, as many as 69 Postal ballots went missing and were never delivered to those, who had applied for the said postal ballots . However, 65 postal ballots, out of the said 69, were received back by the Returning Officer through unauthorised source of Sukuni Sharma (PW4) in the manner as indicated above.
50. Thus, the petitioner has considerable force, when it is submitted, on her behalf, that 69 postal ballots went out of the legitimate channel after 30 12.10.2009 and became spurious postal ballots and these postal ballots could not have been, and ought not to have been, counted in view of the mandate of law as contained in Rule 54 (11) read with Sub-Rule 8(c) of the Conduct of Election Rules, 1961.
51. None of the said 65 spurious ballots could have been received or counted by the Returning Officer. At the same time, it is also the undisputed position of fact, emerging from the evidence on record, that as many as 40 spurious postal ballots, belonging to the said bunch of 65 spurious ballots, received through unauthorised channel of Sukuni Sharma, had, indeed, been counted by the Returning Officer in favour of the respondent.
52. While considering the issue Nos. b, c and d, what cannot be ignored and must not be ignored is the fact that the Returning Officer has confirmed the fact that altogether 425 postal ballots of 30 Aalo West Legislative Assembly Constituency had been received and counted in the counting process. The Returning Officer has also confirmed, in his evidence, on the basis of the contents of Ext. PX52, the fact that he had, by order, dated 22.10.2009 (as reflected from Ext. PX52) had rejected 48 postal ballots from the bunch of 65 postal ballots received from unauthorised channel of Sukuni Sharma.
53. It is, thus, an admitted position that as many as 17 postal ballots from the said bunch of 65 spurious postal ballots, received by Sukuni Sharma (Pw4), came to be counted by the Returning Officer despite being aware of the fact that these spurious ballots had gone missing and, having been received through unauthorised channel, ought not to be counted. The Returning Officer (PW30) has miserably failed to explain as to why he happened to count the 17 spurious postal ballots 31 belonging to the bunch of 65 postal ballots received through Sukuni Sharma nor is there any explanation discernible, in this regard, from the materials on record.
54. One can also not ignore the fact that the Returning Officer (PW30) has, in fact, conceded, in his evidence, that he had received the letters, namely, Ext. PX47, 48 and 50, issued by D.K. Deka as also the 13 affidavits, submitted by the Government employees, namely, Exts. PX51 (1) to 51(13). Under the weight of cross-examination by the election petitioner, PW30 (Returning Officer) has confirmed the entries made in Ext. PX53 and accepted the fact that in the final analysis, it is only 25 postal ballots , out of the said 65 spurious postal ballots , which come to be, eventually, rejected by him.
55. In effect, thus, PW30 (Returning Officer) has confirmed that besides 17 postal ballots from the said bunch of 65 postal ballots (which were all rejected by him at the initial stage), 23 postal ballots , out of the remaining 48 rejected postal ballots , came to be, finally, counted by him. Why he (Returning Officer) decided to count any of the Postal ballots, out of the said 65 Postal ballots, the Returning Officer has no answer, far less a convincing and reasoned answer, to offer. IMPACT OF COUNTING OF POSTAL BALLOTS ON THE ELECTION RESULTS- WHETHER MATERIALLY AFFECTED THE ELECTION RESULT
56. The Returning Officer‟s evidence, given in this regard, works as an eye-opener inasmuch as he states, "65 (sixty-five) numbers of ballot papers, which were received by Smti. Sukuni Sharma, ought to have been excluded and not counted. I did not however, reject the said 65 postal ballots". He further stated that "the said 48 postal ballots, which I had rejected, formed part of the said 65 postal ballots, which were 32 delivered to Smt. Sukuni Sharma. Thus, 17 more postal ballots ought to have been rejected. However, 17 postal ballots were not rejected, because out of the 65 postal ballots, received by Smt. Sukuni Sharma only 48 ballot papers were directed by me to be kept separately and not to be counted".
57. In the face of the above evidence of the Returning Officer himself, there can be no escape from the conclusion that even the Returning Officer concedes that he ought not to have counted, and yet counted, as many as 40 postal ballots out of the said bundle of 65 postal ballots, which had reached his hands through unauthorized channel of Smt. Sukuni Sarma. In no way, therefore, the receipt of the 40 postal ballots could be justified by the Returning Officer or by the respondent.
58. What is surprising to note, while considering the above evidence of the Returning Officer (PW30), is that while cross-examining him (PW30), the respondent did not question the veracity of the above evidence of PW30. Thus, even the respondent has acceded to the fact that the Returning Officer initially counted, for no assigned reason, 17 postal ballots, which had come to him through the unauthorised source of Sukuni Sharma (PW4). Why PW30 allowed the counting of these 17 postal ballots, there is absolutely no answer. This silence is propounded by yet another fact that out of the remaining 48 postal ballots, which had been directed by PW30 himself by his order, dated 22.10.2009, to be kept in a sealed cover and not to be counted, as many as 23 postal ballots were, eventually, counted. Here again and, as usual, for counting the said 23 postal ballots, there is really no answer and no explanation. This apart, 17 applicants of the said postal ballots have confirmed, in their evidence, that they had not received their postal ballots. These 17 witnesses are 33 PW5 to PW8, PW10, PW11, PW13 to PW15, PW19, PW20, PW22, PW23, PW25, PW26, PW31 and PW 52.
59. What is also interesting to note is that the Returning Officer (PW30) has admitted that it was possible to identify the 65 spurious postal ballots, which had been received through Sukuni Sharma and could have kept excluded from counting. There is no explanation given either by the respondent or by the Returning Officer or from any officials connected with the process of election, in the present case, as to why no attempt was made to identify those 65 postal ballots, which had been received by Sukuni Sarma, and to keep the same excluded from being counted.
60. It may, now, be noted that on an application, made by the petitioner, an order was passed, on 11.03.2011, by this Court (Hon‟ble P. K. Musahary, J) in the present election petition, allowing inspection of records. A Special Leave Petition was moved against the said order, but the said SLP was dismissed by the Supreme Court. During the course of this inspection, as the evidence on record discloses, the petitioner‟s representative examined Form No.13A of the said 40 spurious ballots, which were counted, and, by correlating the counterfoil number of the said 40 postal ballots, he could identify the said 40 postal ballot papers. From the evidence of PW53, who had inspected and examined the records, it has surfaced that all the 40 spurious Postal Ballots were cast in favour of the respondent and these spurious 40 Postal Ballots were, eventually, counted, on the orders of the Returning Officer, in favour of the respondent. The particulars of the said 40 forged postal ballots have been indicated in a tabular form in the examination-in-chief of PW53.
61. During the inspection, held on 17.03.2011, as indicated above, it was further seen, as reflected from the evidence on record, that four 34 spurious postal ballots, issued in the name of Jaiprakash Tiwari, Karto Ete, Jompi Padu and Penya Ete were also counted, on the orders of the Returning Officer, in favour of the returned candidate, though Jaiprakash Tiwari was a person, whose name stood, admittedly, deleted from the voters list and whose vote could not have been counted; Karto Ete is a person, whose name was included twice, i.e., in the electoral roll in part 13 Serial No.430 and, again, in part 14 Serial No.320 and, hence, none of these postal ballots could have been counted and, yet, his postal ballot has been counted; similarly, Jompi Padu, a school student, was issued postal ballot against an application, made in Form No.12, by Nyojum Ete. Admittedly and amazingly enough, all these five postal ballots were counted. The particulars of the postal ballots, issued in favour of Jaiprakash Gupta, Jompi Padu, Karto Ete and Penya Ete, are reproduced hereinbelow:
Sl No Name Part No/SL.No Counterfoil No. 1 Jai Prakash Tiwari 2/116 000053 2 Jompi Padu 13/59 000407 3 Karto Ete 13/430 000234 4 Karto Ete 14/320 000316 5 Penya Ete 14/437 000350
62. One can also not ignore the fact that respondent has neither pleaded nor led any evidence to give his version as to what had happened to the 89 postal ballots of 30 Aalo West Assembly Constituency, which were booked, by registered post, on 12.10.2009, or 35 that 69 postal ballots, out of the 89 postal ballots, had gone missing from the said post office. In fact, the respondent had taken a stand of complete ignorance about the whole incident, but under the pressure of cross-examination, the respondent conceded that he knew about the missing postal ballots. This further fortifies the case of the election petitioner that the respondent has been suppressing the truth from the Court and he was well-aware of the fact that postal ballots, booked by registered post, on 12.10.2009, at the said post office, had gone missing and that out of those missing ballots, some were shown, by manipulation, to have been cast in his favour and were, in fact, taken into account in the counting of votes.
63. From what have been discussed and pointed out above, it stands proved beyond all reasonable doubt that the Returning Officer had, in fact, counted 44 void votes in favour of the respondent, which has materially affected the result of the poll. These 44 votes are all void votes and ought not to have been counted in favour of any candidate. If these 44 votes were kept excluded from the poll process, as ought to have been done by the Returning Officer (PW30), then, the petitioner would have, obviously, received, unless shown otherwise, the majority of valid votes and emerge, as contended by her, the winning candidate.
64. Because of what have been discussed and pointed out above, issue Nos. b, c and d are answered in the affirmative and in favour of the election petitioner.
65. Let me, now, deal with issue Nos. f, g and h.
f. Whether the election petitioner has, in fact, received the majority of the valid votes polled in the election and hence, entitled to a declaration under Section 100(d) of the R.P.Act, 1951?
36g. Whether the election petitioner is entitled to a declaration under Section 101 of the R.P.Act, 1951, that she has been duly elected to 30 A alo West Assembly Constituency in the election held on 13.10.2009?
h. To what other relief(s), the election petitioner is entitled to under the law?"
66. All these three issues being closely interlinked are taken up for discussion together.
67. While discussing the above three issues, it needs to be pointed out that the respondent is a person, who was declared as elected. I f, therefore, in a case of present nature, once this Cou rt holds, and as I have already held, that the respondent is guilty of commission of corrupt practice, there is no legal impediment in setting aside the election of the respondent. The election petitioner has, however, also sought for a declaration, in ter ms of Section 100(d) of the ROP Act, that she has received majority of valid votes polled in the election and, in terms of Section 101 of the ROP Act, be declared as duly elected.
68. In order to, however, determine if the election petitioner had received majority of valid votes polled in the election, one has to inspect the 40 postal ballots, which were, in the light of the discussions held above, illegally allowed to be counted by the Returning Officer (PW30) at the time of counting, 17 of these postal ba llots having been allowed to be counted by order, dated 22.10.2009, without assigning any reason therefor and the remaining 23 pos tal ballots were, later 37 on, allowed to be counted and, once again, withou t assigning any reason whatsoever.
INSPECTION VIS-À-VIS SECRECY OF BALLOTS
69. Two important factors, which have to be borne in mind, are (i) whether it is feasible to trace out, by way of inspection , the said 44 postal ballots and, (ii) whether the such an inspection, in the face of the evidence on record a nd the law relevant thereto, needs to be allowed. This apart, this Court has also held that four more postal ballots , issued in the name of Jaipraksh Tiwari, Karto Ete, Jompi Padu and Penya Ete , ought not to have been counted, but were allowed to be counted. Hence, the said four votes, too, are to be traced ou t and kept excluded from being counted.
70. While considering the above, it needs to be noted that secrecy of postal ballot is adhered to , or insisted upon , in order to ensure free and fair election so that a voter can fearlessly cas t his vote without his identity being disclosed.
When, however, the Court confronts a situation , where there is a conflict between the two, namely, secrecy of ballot and purity of election, then, the former, i.e., the secr ecy of ballot has to yield space for purity of election. I n order to, therefore, maintain purity of election, the Court may have to, in certain circumstances, where purity of election demands inspection of postal ballots or re-counting, allow such inspection or re-
counting, as the case may be.
71. In S. Raghbir Singh Gill Vs. Gurcharan Singh Tohra, reported in (1980) Supp SCC 53, the Supreme Court has 38 pointed out the necessity of maintaining secrecy of ballot so as to ensure free and fair elections. At the same time, the Supreme Court has also cautioned that if secrecy of ballot becomes a s tumbling block in undoing free and fair election, then, secrecy of ballot may not be adhered to, for, insistence on secrecy of ballot, in certain cases, may defeat the pur ity of election, which, in essence, is, nothing, but free and fair election. I n order to, therefore, ensure free and fair election, the Court may, in a given case, direct inspection of ballot papers. The relevant observations, appearing in this regard, in S. Raghbir Singh Gill (supra), read thus:
"23. .................................................... The principle of secrecy of ballot cannot stand aloof or in isolation and in confrontation to the foundation of free and fair elections viz. purity of election. They can co -exist but as stated earlier, where one is used to destroy the other, the first one must yield to principle of purity of election in larger public interest. In fact secrecy of ballot, a privilege of the voter, is not inviolable and may be waived by him as a responsible citizen of this country to ensure free and fair election and to unravel foul play."
(Emphasis is added)
72. Section 94 of the ROP Ac t, 1951, provides that in a case of voting by open ballot, no witness or other person shall be required to state for whom he ha s voted , the object underlined being to ensure a voter that he would not be compelled, directl y or indirectly , to disclose as to whom he has voted for so that he may vote withou t fear or favour. Thus, Section 94 confers a privilege to the voter to protect himself both in and outside the Court. This precisely is the principle known as secrecy of ballot, which Section 94 incorporates . 39 However, if the very secrecy of ballot, instead of ensuring free and fair election, strikes at the root of the principles of f ree and fair election, secrecy of ballot would be utilized for undoing free and fair election and when secrecy of ballot, instead of ensuring free and fair election, is used for suppressing a wrong coming into light or fraud on the election process or even to defend a crime, namely, forgery of ballot papers, the principle of secrecy of ballot ha s to yield to the larger principle of free and fair election.
73. The above position of law clearly emerge from the following observations, made in Rekha Rana Vs. Jaipal Sharma, reported in (2009) 17 SCC 115:
"15. In the backdrop of the above submissions, the first question for consideration is as to what exactly is the underlying object, scope and ambit of the doctrine of "secrecy of ballot" as enshrined in Section 94 of the Act?
16. Section 94 of the Act provides that except in a case of voting by open ballot, no witness or other person shall be required to state for whom he has voted. The underlying object of the provision is to assure a voter that he would not be compelled, directly or indirectly, by any authority to disclose as to for whom he has voted, so that he may vote without fear or favour and is free from any apprehension of its disclosure against his will from his own lips. The section confers a privilege on the voter to protect him both in the court when he is styled as a witness and outside the court when he may be questioned about how he voted. This precisely is the principle of "secrecy of ballot".
19. Expressing the view that "secrecy of ballot" as provided in Section 94 of the Act was mooted "to ensure free and fair elections", the Court opined thus:
"22. ... If the very secrecy of ballot instead of ensuring free and fair elections strikes at the root of the principle 40 of free and fair elections this bas ic postulate of democracy would be utilised for undoing free and fair elections which provide lifeblood to parliamentary democracy. If secrecy of ballot instead of ensuring free and fair elections is used, as is done in this case, to defeat the very public purpose for which it is enacted, to suppress a wrong coming to light and to protect a fraud on the election process or even to defend a crime viz. forgery of ballot papers, this principle of secrecy of ballot will have to yield to the larger principle of free and fair elections."
(Emphasis is added)
74. I n the case of Bhabhi Vs. Sheo Govind, reported in (1976) 1 SCC 686 , the Supreme Court has, at para 15, crystallized the grounds on which inspection of ballot papers can be allowed. The observations, made at para 15, are, therefore, reproduced below:
"15. Thus on a close and careful consideration of the various authorities of this Court from time to time it is manifest that the following conditions are imperative before a court can grant inspection, or for that matter sample inspection , of the ballot papers:
(1) That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed to be violated on frivolous, vague and indefinite allegations; (2) That before inspection is allowed, the allegations made against the elected candidate must be clear and specific and must be supported by adequate statements of material facts;
(3) The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount ; (4) That the Court must come to the conclusion that in order to grant prayer for inspection it is necessary and imperative to do full justice between the parties; 41 (5) That the discretion, conferred on the Court, shou ld not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void ; and (6) That on the special facts of a given case, sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount, and not for the purpose of fishing out materials .
If all these circumstances enter into the mind of the Judge and he is satisfied that these conditions are fulfilled in a given case, the exercise of the discretion would undoubtedly be proper."
(Emphasis is added)
75. From the observations, made in Bhabhi (supra), it becomes clear that the Court shall not allow inspection so as to enable an applicant to indulge in a roving enquiry with a view to fish materials for obtaining a declaration in his favour that the resul t of the election was void. This apart, the Court must be prima facie satisfied on the materials produced before the Court as regards the truth of the allegations made for an inspection or recount. Furthermore, before inspection is allowed, the allegations must be proved clearly and specifically and the Court shall bear i n mind that the secrecy of ballot is sacrosanct and should not be violated on frivolous, vague and indefinite allegations.
76. Thus, what becomes clear, from the decision of Bhabhi (supra), is that there is no bar to allow inspection of ballot if the Court is prima facie satisfied with regard to the tru th of the allegations made for inspection.
42
77. A charge of corrupt practice is in the nature of a quasi- criminal charge and since the consequence of corrupt practice may not only render the returned candida te‟s election void, but it may make him disqualified from contesting election, the charge of corrupt practice must be established definitely and to the satisfaction of the Court. The standard of proof, generally speaking, is that of a criminal trial, which requires strict proof of the charge beyond reasonable doubt, the burden of proof being on the candidate, who alleges corrupt practice and that burden does not shift. However, the Courts have also cautioned that even though the burden is on the election pe titioner to prove the charge of corrupt practice, it should not be understood to mean or imply that the returned candidate is completely absolved from his liability to bring forth the evidence on record to revert the case of the election petitioner, particularly, to prove such facts, which are within the special knowledge of the elected candidate. This position of law succinctl y emerges from the observations, made in Govind Singh Vs. Harchand Kaur, reported in (2011) 2 SCC 621, which read as under:
"56. At this stage, it would be worthwhile to recollect the well-settled legal position that a charge of corrupt practice is in the nature of a quasi -criminal charge, as its consequence is not only to render the election of the returned candidate void but in some cases (as in the instant one) might incur disqualification from contesting even the next election. The evidence led in support of the corrupt practice must therefore, not only be cogent and definite but if the election petition has to succeed, it must establish definitely and to the satisfaction of the 43 Court, the charge of corrupt practice which the defeated candidate levelled against the returned candidate. The onus lies heavily on the election petitioner to establish the charge of corrupt practice and in case of doubt the benefit goes to the returned candidate. It is well acknowledged that in the case of an election petition, based on allegations of commission of corrupt practice, the standard proof generally speaking is that of a criminal trial, which req uires strict proof of the charge beyond reasonable doubt and the burden of proof is on the candidate who alleges corrupt practice and that burden does not shift. This was the view expressed by Their Lordships in Gajanan Krishnaji Bapat v. Dattaji Raghobaji Meghe wherein Their Lordships had placed reliance also on Nihal Singh v. Rao Birendra Singh, Om Prabha Jain v. Charan Dass, Daulat Ram Chauhan v. Anand Sharma and Quamarul Islam v. S.K. Kanta wherein the same view had been taken. However, the courts have been cautioned to hold that even though the burden is on the petitioner to prove the charge of corrupt practice, it should not be understood to mean or imply that the returned candidate is absolved from his liability to bring forth the evidence on the reco rd to revert the case of the petitioner and particularly prove such facts which are within the special knowledge of the elected candidate"
(Emphasis is added)
78. From the pleadings of the parties and the evidence on record, it becomes clear that as many a s 44 postal ballots were, admittedly, counted and these postal ballots have been received by the respondents. Ou t of the 44 pos tal ballots, as many as 40 ballots had been received by the Returning Officer through the unauthorized channel of Sukuni Sharma (PW4) and the remaining ones being all those voters, who were not entitled to issuance of postal ballots and whose postal ballots ought not to have been counted. This apart, it has also emerged cogently and without any shadow of doubt 44 that as many as 65 pos tal ballots were received by Sukuni Sharma from Darka Kamsi and these postal ballots did reach the hands of the Returning Officer.
79. The question, therefore, which confronts this Court is as to whether it is possible to identify the said 65 postal ballot s by inspection.
80. While considering the above aspect of the matter, it needs to be noted that it has clearly surfaced from the evidence of Gomo Sora (PW43) that Ext. PX 56 is the regis ter, which was maintained by the Returning Officer and which contains the record/list of 89 postal ballots issued on the applications made for postal ballots . The said register has been acknowledged by PW46 (Jatin Dihingia ), who had received the said 89 postal ballots for booking , at Aalo Pos t Office, on 12.10.2009. I n fact, Ext. PX 56(1) is the signature of Jatin Dihingia. The fact that 89 postal ballots were booked, as indicated hereinbefore, can be verified from Annexure -1 of Ext.PX 57 as well as PX 58, which are computerized receipts maintained by the Postal Departm ent u pon booking of registered letters.
81. Ext. PX58 has also been exhibited as Ext.PX 26(2), because Ext.PX 26(2) was provided to the election petitioner by the Returning Officer in response to the application made by the election petitioner under the Right t o I nformation Act, 2005, under the Assis tant Returning Officer‟s letter, dated 27.10.2009, the letter having been proved as Ext.26. This apart, 45 Ext.PX58 has been produced and proved by the Returning Officer (PW30). Apart from the said register and the computerized receipts, the Pos tal Department also maintains a consolidated report of booking of registered letters , at Along Post Office , on 12.10.2009. The said consolidated report has been produced by the Postal Department on the direction given by order, da ted 03.03.2011 , passed in Misc. Case 09(AP)/2010 and the same is kept in sealed cover in the custody of the Registry.
82. The said record is reproduced in Table I hereinbelow:
TABLE-1 1 2 3 4 5 6 Sl RL Name of PB 89 Destination Electoral Counterfoil voters as per post office Roll number of No No. register PX- 56. Postal Ballot Pt No./Sl No. 1 100 Jumge Ete Roing 8/518 000007 2 101 Dumar Bagra I tanagar 20/480 000299 3 102 Durik Kamduk Aalo 8/531 000149 4 103 Jumdo Ete Rumgong 8/55 000150 5 104 Tomo Bagra I tanagar 22/490 000323 6 105 Dujum Bagra I tanagar 22/615 000322 7 106 Mejjo Bagra Naharlagun 22/177 000321 8 107 Kari Kamsi Changlang 24/445 000428 9 108 Tumluk Bagra Daporijo 23/90 000425 10 109 Jumsor Rime Anini 15/90 000421 11 110 Gamli Ete I tanagar 13/617 000415 12 111 Minki Ete Pasighat 13/562 000414 13 112 Darbom Ete Jullong 14/286 000418 14 113 Kenli Padu Banderdewa 14/168 000429 15 114 Migo Kamsi Namsai 24/551 000427 16 115 Imar Doji Changlang 19/435 000425 17 116 Gedo Ete Naharlagun 14/691 000417 18 117 Toli Padu I tanagar 13/772 000416 19 118 Gam tum Ete I tanagar 13/618 000413 46 20 119 Kenter Tacha I tanagar 6/17 000124 21 120 Tomi Kamsi I tanagar 24/519 000341 22 121 Joken Angu Bene 24/63 000346 23 122 Tope Angu Likabali 24/82 000336 24 123 I jum Angu Aalo 24/53 000328 25 124 Tumke Ete Roing 13/256 000082 26 125 Pagbin Sora I tanagar 2/7 000083 27 126 Ramo Padu I tanagar 12/554 000084 28 127 Tonyir Ete Daporijo 13/326 000086 29 128 Tumken E te I tanagar 8/472 000088 30 129 Horngam Loyi Daporijo 10/182 000090 31 130 Yomge E te Ziro 6/209 000091 32 131 Yika Angu Daporijo 24/740 000093 33 132 Imo Sora Daporijo 1/374 000095 34 133 Liyom Ete Daporijo 9/221 000096 35 134 Mojom Ete Bomdila 9/161 000101 36 135 Libom Bagra Daporijo 23/95 000097 37 136 Kedo E te Daporijo 8/549 000104 38 137 Kengo Eshi I tanagar 4/511 000079 39 138 Jumnya Angu Roing 24/770 000103 40 139 Dotu Angu Roing 24/854 000098 41 140 Tojom Ete Roing 7/294 000102 42 141 Nyadar Loya I tanagar 10/708 000397 43 142 Nyojum Ete Naharlagun 13/502 44 143 Morken Loyi Mengio/I ta 10/384 000402 45 144 Raken Padu Seppa 12/548 000406 46 145 Mindo Loyi Mengio/I ta 10/239 000400 47 146 Tonya Padu I tanagar 13/777 000408 48 147 Geyum Padu I tanagar 13/833 000411 49 148 Onam Loyi Shillong 10/257 000398 50 149 Mardo Padu I tanagar 13/110 000412 51 150 Komkar Loya I tanagar 10/34 000396 52 151 Tomi Ete Naharlagun 13/323 000410 53 152 Jumli Ete Yupia 12/106 000405 54 153 Gemar Lomi Doimukh 10/614 000401 55 154 Tore Ete Ziro 5/662 000371 56 155 Lijum Eshi Daporijo 4/299 000364 57 156 Limar Ori Pasighat 4/206 000366 58 157 Gohen E te I tanagar 6/22 000374 59 158 Momar Ete I tanagar 5/82 000372 60 159 Kirge Ori Palin 4/648 000363 61 160 Limo Ete Yachuli 5/89 000370 47 62 161 Dugbin Ete Namsai 5/610 000369 63 162 Mari Eshi Aalo 4/378 000367 64 163 Kirpi Ori Changlang 4/488 000365 65 164 Nyaken Ori Tezu 2/414 000361 66 165 Tumgo Ete Naharlagun 5/179 000373 67 166 Kirba Sora Seppa 1/426 000356 68 167 Hokto Ete Jengging 8/148 000383 69 168 Mogum Ete I tanagar 8/256 000382 70 169 Hogmar E te Hawai 8/72 000387 71 170 Gumge Ete Pasighat 9/95 000393 72 171 Dooda Ete Hawai 8/9 000385 73 172 Mijum Tacha Mohang 6/13 000375 74 173 Kom tum Ete I tanagar 7/237 000377 75 174 Nyali Ete Hayuliang 8/119 000386 76 175 Gum to Ete Hayuliang 9/89 000390 77 176 Ragge Ete Hawai 9/298 000391 78 177 Kenli I ngo Ziro 7/269 000378 79 178 Nyage Ete I tanagar 8/116 000384 80 179 Minto Ete I tanagar 9/313 000392 81 180 Moi Ete Banderdewa 8/255 000381 82 181 Duge Ete I tanagar 7/12 000379 83 182 Jummo Loya Aalo 10/282 000154 84 183 Goki Ete Naharlagun 14/337 000247 85 184 Bekar Bagra I tanagar 21/197 000314 86 236 Tonya Padu I tanagar 13/777 000408 87 237 Dorik Bagra I tanagar 20/415 000085 88 238 Jummar Kamsi I tanagar 24/447 000349 89 239 Kenyom Niri Daporijo 16/89 000422 90 71 Duda Sora Aalo 1/347 000357
83. What can be clearly seen from the Table No.1 is that Table No.1 contains names of 90 persons, because the name of Shri Tonya Padu has been erroneously mentioned twice, once at Serial No. 47 and, then, onc e again, at Serial No. 86.
84. What may, now, be pointed is that on an application, made by the election petitioner under the Right to Information Act, 2005, seeking details of the said postal 48 ballots, the Postal Department has given its reply, which is Exts. PX7 and 8. Annexure- I of the Exhibit 8 is a list of 22 registered letters containing pos tal ballots papers, which were properly delivered to the addressees in terms of the Postal Department Report. Annexure I of Exhibit 8 is reproduced hereinbelow as Table No.2:
TABLE- 2 1 2 3 4 5 6 Sl RL L i s t o f 2 2 P B w h i c h D e s ti n a ti o n E l e c to r a l R o l l C o u n te r f o i l No .
was delivered as post office o f P o s ta l B a l l o t
No. No. per Exhibit- PX-8, Pt N o ./ S l No .
An n e x u r e - I
1. 10 2 Du ri k Ka m d uk Aa l o 8/ 53 1 00 01 49
2. 10 3 Ju md o Ete R um g ong 8/ 55 00 01 50
3. 10 9 Ju m s or Ri me An ini 15 /9 0 00 04 21
4. 11 3 Ken l i Pa d u Banderdew a 14 /1 68 00 04 29
5. 12 1 Jo ken An g u Bene 24 /6 3 00 03 46
6. 12 3 I jum An g u Aa l o 24 /5 3 00 03 28
12 6 Ra m o P ad u I t anagar 12 /5 54 00 00 84
7.
8. 12 9 Ho rn ga m L o yi Dap orij o 10 /1 82 00 00 90
9. 13 4 M oj om Ete Bo mdila 9/ 16 1 00 01 01
10. 14 0 T oj om Ete R oing 7/ 29 4 00 01 02
11. 14 4 Rak en P ad u Se ppa 12 /5 48 00 04 06
12. 14 5 M i n do L o yi M e n gi o / I ta 10 /2 39 00 04 00
15 2 Ju ml i E t e Y upia 12 /1 06 00 04 05
13.
14. 15 5 Li j u m E sh i Dap orij o 4/ 29 9 00 03 64
15. 16 0 Li m o E t e Y achuli 5/ 89 00 03 70
16. 16 2 M ari E sh i Aa l o 4/ 37 8 00 03 67
17. 16 6 Ki rb a S or a Se ppa 1/ 42 6 00 03 56
18. 17 2 M i ju m Tac h a M ohan g 6/ 13 00 03 75
19. 17 6 Ra gge E t e Haw ai 9/ 29 8 00 03 91
20. 18 2 Ju m mo L o ya Aa l o 10 /2 82 00 01 54
49
21. 18 4 B eka r B ag ra I t anagar 21 /1 97 00 03 14
22. 23 7 Do ri k B a gra I t anagar 20 /4 15 00 00 85
85. Coupled with the above, Annexure - II of Exhibit- PX- 8 contains the names of as many as 69 (sixty nine) voters, whose registered letters , containing postal ballots, were traceless.
The names of those 69 persons are, now, reproduced below in Table 3:
TABLE-3 1 2 3 4 5 6 7 Sl RL Li st o f 69 P B De st inat ion E lect o ral C o unt e rf o w h i ch w ent po st of fice R ol l il n umb er No No. mi s si n g as pe r of P ost al C or re ct E xh i b i t PX - 8 , Pt N o ./ Sl Ballot Sp elling An n ex u re - I I No. of na me s of v ot e rs 1 . 10 0 Ju mg e Ete R oing 8/ 51 8 00 00 07 2 . 10 1 Du ma r B a gra I t anagar 20 /4 80 00 02 99 3 . 10 4 T om o B ag ra I t anagar 22 /4 90 00 03 23 4 . 10 5 Du j um B ag ra I t anagar 22 /6 15 00 03 22 Du j om Bagr a 5 . 10 6 M ejj o B agr a Nah arla g un 22 /1 77 00 03 21 6 . 10 7 Kari Ka m si Ch angla ng 24 /4 45 00 04 28 7 . 10 8 T uml u k B a gra Dap orij o 23 /9 0 00 04 25 11 0 Ga ml i E t e I t anagar 13 /6 17 00 04 15
8. 9 . 11 1 M i n ki Ete Pa sighat 13 /5 62 00 04 14 10 . 11 2 Darb o m Ete Ju llo ng 14 /2 86 00 04 18 11 . 11 4 M i go Ka ms i Na ms ai 24 /5 51 00 04 27 12 . 11 5 I mar D oji Ch angla ng 19 /4 35 00 04 25 13 . 11 6 G ed o Ete Nah arla g un 14 /6 91 00 04 17 G ed o Ete 14 . 11 7 T ol i Pad u I t anagar 13 /7 72 00 04 16 15 . 11 8 Ga mt u m Ete I t anagar 13 /6 18 00 04 13 16 . 11 9 Ken t e r Tach a I t anagar 6/ 17 00 01 24 50 17 . 12 0 T omi Ka ms i I t anagar 24 /5 19 00 03 41 18 . 12 2 T op e An g u Likab ali 24 /8 2 00 03 36 12 2 19 . 12 3 I jum An g u Aa l o 24 /5 3 00 03 28 20 . 12 4 T umk e Ete R oing 13 /2 56 00 00 82 21 . 12 5 Pag b i n S ora I t anagar 2/ 7 00 00 83 Pag b i n S ora 22 . 12 7 T on yi r Ete Dap orij o 13 /3 26 00 00 86 23 . 12 8 T umk en Ete I t anagar 8/ 47 2 00 00 88 24 . 13 0 Y omg e Ete Zir o 6/ 20 9 00 00 91 25 . 13 1 Y i ka An g u Dap orij o 24 /7 40 00 00 93 26 . 13 2 I mo S ora Dap orij o 1/ 37 4 00 00 95 27 . 13 3 Li y om Ete Dap orij o 9/ 22 1 00 00 96 Li y om Ete 13 5 Li b om B a gra Dap orij o 23 /9 5 00 00 97 28 .
13 6 Ked o E t e Dap orij o 8/ 54 9 00 01 04 29 .
30 . 13 7 Ken g o Eshi I t anagar 4/ 51 1 00 00 79 31 . 13 8 Ju mn ya An g u R oing 24 /7 70 00 01 03 32 . 13 9 Dot u An g u R oing 24 /8 54 00 00 98 33 . 14 1 N ya dar Loya I t anagar 10 /7 08 00 03 97 34 . 14 2 N y oj u m Ete Nah arla g un 13 /5 02 35 . 14 3 M ork en L o yi M engi o /I t a 10 /3 84 00 04 02 36 . 14 6 T on ya Pa d u I t anagar 13 /7 77 00 04 08 37 . 14 7 G e y um Pa d u I t anagar 13 /8 33 00 04 11 38 . 14 8 On a m L o yi Shill on g 10 /2 57 00 03 98 39 . 14 9 M ard o P ad u I t ana gar 13 /1 10 00 04 12 40 . 15 0 Ko mka r L o y a I t anagar 10 /3 4 00 03 96 41 . 15 1 T on i Ete Nah arla g un 13 /3 23 00 04 10 T oni E t e 42 . 15 3 G ema r L o mi Doi m ukh 10 /6 14 00 04 01 43 . 15 4 T or e E t e Zir o 5/ 66 2 00 03 71 44 . 15 6 Li m ar Ori Pa sighat 4/ 20 6 00 03 66 45 . 15 7 G oh en E t e I t a nagar 6/ 22 00 03 74 46 . 15 8 M om ar Ete I t anagar 5/ 82 00 03 72 51 47 . 15 9 Ki rg e O ri Palin 4/ 64 8 00 03 63 48 . 16 1 Du gb i n Ete Na ms ai 5/ 61 0 00 03 69 49 . 16 3 Ki rp i Ori Ch angla ng 4/ 48 8 00 03 65 50 . 16 4 N yak en Ori Te z u 2/ 41 4 00 03 61 51 . 16 5 T um g o E t e Nah arla g un 5/ 17 9 00 03 73 52 . 16 7 Hokt o E t e Jen ggin g 8/ 14 8 00 03 83 53 . 16 8 M og u m E t e I t anagar 8/ 25 6 00 03 82 54 . 16 9 Ho gma r E t e Haw ai 8/ 72 00 03 87 55 . 17 0 G u mge E t e Pa sighat 9/ 95 00 03 93 56 . 17 1 Do o da Ete Haw ai 8/ 9 00 03 85 57 . 17 3 Ko mt um E t e I t anagar 7/ 23 7 00 03 77 58 . 17 4 N yal i E t e Ha y uliang 8/ 11 9 00 03 86 59 . 17 5 G u mt o E t e Ha y uliang 9/ 89 00 03 90 60 . 17 7 Ken l i I n g o Zir o 7/ 26 9 00 03 78 61 . 17 8 N ya ge E t e I t anagar 8/ 11 6 00 03 84 N ya ge Ete 62 . 17 9 Minto Ete I t anagar 9/ 31 3 00 03 92 63 . 18 0 M oi E t e Band erd ew a 8/ 25 5 00 03 81 64 . 18 1 Du ge E t e I t anagar 7/ 12 00 03 79 Du ge E t e 65 . 18 3 G oki E t e Nah arla g un 14 /3 37 00 02 47 G oki E t e 66 . 23 6 T on ya Pa d u I t anagar 13 /7 77 00 04 08 67 . 23 8 Ju m mar Kam si I t anagar 24 /4 47 00 03 49 68 . 23 9 Ken y o m Ni ri Dap orij o 16 /8 9 00 04 22 69 . 71 Du da S o ra Aa l o 1/ 34 7 00 03 57
86. What is, now, necessary to point out is that in the inspection carried out by the election petitioner, on 17.03.2009, (as the evidence on record disclose s) it was found that out of the 69 voters, shown above in Table No.3, postal ballot, in respect of Miss Tonyir Ete, appearing at Serial No. 21, was found to be counted by the Returning Officer, but the 52 same was rejec ted in the counting process due to improper declaration in Form 13-A.
87. What cannot be ignored is the fact that the postal ba llot of Tonyir E te forms part of the 8 (eight) postal ballots, which were rejected for other reasons. The inspection, which had been carried out, further revealed that the postal ballot, issued to one Shri Nyojum Ete, whose name appears at Serial No. 34, was issued to one Miss Jompi Padu (PW -9), who is a school student.
88. Thus, the name of Shri Tonya Padu, it has already been discussed above, has been entered twice. Moreover, the name of Shri I jum Angu has been shown , in the list of delivered postal ballots, as per Annexure I of PX 8 as well as Annexure II of Exhibit PX-8. However, it has come to light that the pos tal ballot, issued in the name of Shri I jum Angu, was not properly delivered, because this fact has been affirmed by Exhibit PX 4, which is a certificate issued by Shri I .B Rana, and the name of Shri I jum Angu appears at Serial No. 5 of the said list.
89. What, thus, becomes clear is that 4 (four) postal ballots papers do not form part of the 65 postal ballots, which went missing. Hence, as can be deduced from the records of the Pos tal Department, if the said 4 (four) postal ballots are excluded, then, there are 65 postal ballots, which went missing and could not be accounted for. The particulars and names of said 65 voters are shown below in Ta ble No. 4 with their particulars:53
TABLE- 4 TABULATION OF 65 POSTAL BALLOTS 1 2 3 5 6 7 Sl RL List of 65 PB Destination Electoral Counterfoil which went post office Roll number of No No. missing Postal Ballot Pt No./Sl No. 1 100 Jumge Ete Roing 8/518 000007 2 101 Dumar I tanagar 20/480 000299 Bagra 3 104 Tomo Bagra I tanagar 22/490 000323 4 105 Dujum I tanagar 22/615 000322 Bagra 5 106 Mejjo Bagra Naharlagun 22/177 000321 6 107 Kari Kamsi Changlang 24/445 000428 7 108 Tumluk Daporijo 23/90 000425 Bagra 8 110 Gamli Ete I tanagar 13/617 000415 9 111 Minki Ete Pasighat 13/562 000414 10 112 Darbom Ete Jullong 14/286 000418 11 114 Migo Kamsi Namsai 24/551 000427 12 115 Imar Doji Changlang 19/435 000425 13 116 Gado Ete Naharlagun 14/691 000417 14 117 Toli Padu I tanagar 13/772 000416 15 118 Gam tum I tanagar 13/618 000413 Ete 16 119 Kenter I tanagar 6/17 000124 Tacha 17 120 Tomi Kamsi I tanagar 24/519 000341 18 122 Tope Angu Likabali 24/82 000336 19 124 Tumke Ete Roing 13/256 000082 20 125 Dogbin Sora I tanagar 2/7 000083 21 128 Tumken E te I tanagar 8/472 000088 54 22 130 Yomge E te Ziro 6/209 000091 23 131 Yika Angu Daporijo 24/740 000093 24 132 Imo Sora Daporijo 1/374 000095 25 133 Liyom Ete Daporijo 9/221 000096 26 135 Libom Daporijo 23/95 000097 Bagra 27 136 Kedo E te Daporijo 8/549 000104 28 137 Kengo Eshi I tanagar 4/511 000079 29 138 Jumnya Roing 24/770 000103 Angu 30 139 Dotu Angu Roing 24/854 000098 31 141 Nyadar I tanagar 10/708 000397 Loya 32 143 Morken Loyi Mengio/I ta 10/384 000402 33 146 Tonya Padu I tanagar 13/777 000408 34 147 Geyum I tanagar 13/833 000411 Padu 35 148 Onam Loyi Shillong 10/257 000398 36 149 Mardo Padu I tanagar 13/110 000412 37 150 Komkar Loya I tanagar 10/34 000396 38 151 Toni E te Naharlagun 13/323 000410 39 153 Gemar Lomi Doimukh 10/614 000401 40 154 Tore Ete Ziro 5/662 000371 41 156 Limar Ori Pasighat 4/206 000366 42 157 Gohen E te I tanagar 6/22 000374 43 158 Momar Ete I tanagar 5/82 000372 44 159 Kirge Ori Palin 4/648 000363 45 161 Dugbin Ete Namsai 5/610 000369 46 163 Kirpi Ori Changlang 4/488 000365 47 164 Nyaken Ori Tezu 2/414 000361 48 165 Tumgo Ete Naharlagun 5/179 000373 49 167 Hokto Ete Jengging 8/148 000383 50 168 Mogum Ete I tanagar 8/256 000382 55 51 169 Hogmar E te Hawai 8/72 000387 52 170 Gumge Ete Pasighat 9/95 000393 53 171 Dooda Ete Hawai 8/9 000385 54 173 Kom tum Ete I tanagar 7/237 000377 55 174 Nyali Ete Hayuliang 8/119 000386 56 175 Gum to Ete Hayuliang 9/89 000390 57 176 Ragge Ete Hawaii 9/298 000391 58 177 Kenli I ngo Ziro 7/269 000378 59 178 Nyage Ete I tanagar 8/116 000384 60 179 Minto Ete I tanagar 9/313 000392 61 180 Moi Ete Banderdewa 8/255 000381 62 181 Duge Ete I tanagar 7/12 000379 63 183 Goki Ete Naharlagun 14/337 000247 64 238 Jummar I tanagar 24/447 000349 Kamsi 65 239 Kenyom Niri Daporijo 16/89 000422
90. For better appreciation, the relevant rules, under the Conduct of Election Rules, 1961, are reproduced below:
"24. Recording of Vote.
(1 ) An elector who has recei ved a postal ballot paper and desi res to vote shall record hi s vote on the ballot paper i n accordance wi th the di recti ons contai ned i n Part I of Form 13D and then encl ose i t i n the cover i n Form 13B.
(2 ) The elector shall si gn the declarati on i n Form 13A i n the presence of, and have the si gnature attested by, a sti pendi ary magi strate or such other offi cer speci fi ed below, as may be appropr i ate, to whom he i s personally known or to whose sati sfacti on h e has been i denti fi ed -
(a ) ..........
(b ) ...............
(c ) ............
(d ) ........
(e ) .........
56
54. Mai ntenance of secrecy of voti ng. -The returni ng officer shall, before he commences the counti ng, read out the provi si ons of section 128 to such persons as ma y be present. 54A. Counti ng of votes recei ved by post. - (1 ) The returni ng offi cer shall fi rst deal wi th the postal ballot papers i n the manner herei nafter provi ded.
(2 ) No cover i n Form 13C recei ved by the returni ng offi cer after the expi ry of the ti me fi xed i n that behalf shall be opened and no vote contai ned i n any such cover shall be counted.
(3 ) The other covers shall be opened one after another and as each cover i s opened, the returni ng offi cer shall fi rst scruti nise the declarati on i n Form 13A contai ned therei n. (4 ) If the sai d declarati on i s not found, or has not been duly si gned and attested, or is otherwi se substanti ally defecti ve, or i f the seri al number of the ballot paper as entered i n i t di ffers fro m the seri al number endorsed on the cover i n Form 13B, that cover shall not be opened, and after maki ng an appropri ate endorsement thereon, the returni ng officer shall reject the ballot paper therei n contai ned.
(5 ) Each cover so endorsed and the d eclarati on recei ved wi th i t shall be replaced i n the cover i n Form 13C and all such covers i n Form 13C shall be kept i n a separate packet whi ch shall be sealed and on whi ch shall be recorded the name of the consti tuenc y, the date of counti ng and a bri ef descri pti on of i ts content.
(6 ) The retur ni ng offi cer shall then place all the declarati ons i n Form 13A whi ch he has found to be i n order i n a separate packet whi ch shall be sealed before any cover i n Form 13B is opened and on whi ch shall be recorded the parti culars referred to i n sub -rule (5).
(7 ) The covers i n Form 13B not already dealt wi th under the foregoi ng provi si ons of thi s rule shall then be opened one after another and the returni ng offi cer shall scruti nise each ballot paper a nd deci de the validi ty of the vote record thereon.
(8) A postal ballot paper shall be rejected -
1[(a ) i f i t bears any mark (other than mark to record the vote ) or wri ti ng by whi ch the elector can be i denti fi ed; or] 2[(aa ) i f no vote i s reco rded thereon; or 57 (b ) i f noted are gi ven on i t i n favour of more candidates than one; or
(c) if it is a spurious ballot paper; or (d ) i f i t i s so damaged or muti lated that i ts i denti ty as a genui ne ballot paper cannot be establi shed; or (e ) i f i t i s not returned i n the cover sent along wi th i t to the elector b y the r eturni ng offi cer.
(9 ) A vote recorded on a postal ballot paper shall be rej ected i f the mark i ndi cati ng the vote i s placed on the ballot paper i n such manner as to make i t doubtful to whi ch candi date the vote has been gi ven.
(10 ) A vote recorded on a postal ballot paper shall not be rej ected merely on the ground that the mark i ndi cati ng the vote i s i ndi sti nct or made more than once, i f the i ntenti on that the vote shall be for a parti cular candi date clearly appears from the way the paper i s marked.
(11 ) The returni ng offi cer shall count all the vali d votes gi ven by postal b allot i n favour of each candi dates, record the total thereof i n the result she et in Form 20 and announce the same.
(12 ) Thereafter, all the vali d ballot papers and all the rej ected ballot p apers shall be separately bundled and kept together i n a packet whi ch shall be sealed wi th the seals of the returni ng offi cer and of such of the candi dates, thei r electi on agents or counti ng agents as may desi re to affi x thei r seals thereon and on the packet so sealed shall be recorded the name of the consti tuency, the date of counti ng and a bri ef descri pti on of i ts contents.]
91. I t will be seen from the Rules , reproduced above, that there are certain statu tory requirements with respect to postal ballots. One of the most important requirements being that the postal voter shall sign the declaration in Form 13A in the presence of, and have the signature atteste d by, a stipendiary magistrate or such other officer specified in sub rule (2). The attestation by the Magistrate or the authorized 58 officials attaches authenticity to the postal ballots. Sub-Rule (4) of Rule 54A provides that I f the said declaration is not found, or has not been duly signed and attested, or is, otherwise, substantially defective, or if the serial number of the ballot paper , as entered in it, differs from the serial number endorsed on the cover , in Form 13B, that cover shall not be opened, and after making an appropriate endorsement thereon, the returning officer shall rejec t the ballot paper therein contained.
92. The dictionary meaning of the word spurious is „not being what it purports to be; false or fake‟. Thus when we speak of spurious postal ballot it conveys a meaning that the vote , shown agains t the ballot, has not been cast by the regis tered voter to whom it was issued even though it might give the impression that it had been cast by the registered voter.
93. According to Rule 56 (5), all rejected ballot paper s shall be arranged in a bundle and the ballots , which are not rejected , shall be counted as one valid vote. Thus, the number of valid votes depends upon the ballots , which have been rejected. Hence, a wrong result may surface if those ballots, which should actually have been rejected, are counted as valid vote s.
COURSES OPEN TO THE COURT ON PROOF OF CORRUPT PRACTICES COMMITTED BY THE RESPONDENT AS A CANDIDATE , THE NUMBER OF CANDIDA TES, IN THE ELECTION BEING TWO ONLY - WHETHER INSPECTION AND/OR RECOUNTING WOULD BE NECESSARY 59
94. In the case of Prakash Khandre vs Dr. Vijaya Kumar Khandre, reported in (2002) 5 SCC 568 , one of the questions before the Supreme Court was ;
1. In an Election Petition under the Representation of the People Act, 1951 (hereinafter referred to as 'the Act'), when contest for election to the post of MLA is by more than two candidates for one seat and a candidate, who was disqualified to contest the election, is elected whether the Court can declare a candidate who has secured next higher votes as elected?
95. The Court answered the ques tion , in the affirmative, in the following manner;
"However, in an election where elected candidate is declared to be disqualifi ed to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest t he election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected ."
96. Again, in Lata Devi (Mali) v. Haru Rajwar , reported in (1989) 4 SCC 773, the Supreme Court deal t with the same question and observed as under: -
"It is to be noted that in an election petition what is called in question is the election and what is claimed is that the election of all or any of the returned candidate is void, with or without a further declaration that the election petitioner himself or any other candidate had been duly elected. Declaring the election of the returned candidate void does not, by itself, entitle the 60 election petitioner or any other candidat e to be declared elected."
97. From the above two decisions , what emerge is that in an election, if there are more than two candidates and one of them is disqualified, the second highest scorer of votes cannot be declared elected by defaul t , because, firstl y, there exists no such provision in the code and secondly , such a declaration would be speculative .
98. In the case of Prakash Khandre (supra), the Court referred to a Constitutional Bench judgment , delivered in the case of Konappa Rudrappa Nadgouda vs Vishwanath Reddy (AIR 1969 SC 604). I n this case , the decision of Keshav Laxman Borkar v. Dr. Devrao Laxman Anande, (MANU/SC/0106/1959 was called in question. Keshav Laxmnan (supra) had decided that a candidate , whose nomination paper is accepted after scrutiny, is a validly nominated candidate "at least for the purpose of receiving votes at the election", and that the candidate must be treated as a person for whom votes could be given. The Court on that view held that where there are only two candidates for a seat and the election of the candidate declared elected is set aside on the ground that he was disqualified, the defeated candidate cannot be declared elected, and there must be a fresh election . I n the opinion of the Court, the votes cas t, in favour of the disqualified candidate, cannot be said to be thrown away unless there is a "special pleading" that certain voters had cast their votes with the knowledge or notice that the candidate for whom they had voted was not eligible for election and they had 61 deliberately thrown away their votes in fa vour of the disqualified person. I n the absence of such a plea , it cannot be said that the votes , cas t in favour of a person , who was , by law, disqualified from being nominated, bu t who was , in fac t, nominated, were thrown away. In the Court's view , a defeated candidate , out of the two, who had contested the election, may be declared elected under Section 84 read with Section 101 of the Act if he proves that the voters had notice of the disqualification of the succes sful candidate.
99. The above view , taken in Keshav Borkar case, was overruled in the case of Konappa Rudrappa Nadgouda (supra) and the observation of the Court was as follows;
11. But in our judgment the rule which has prevailed in the British Courts for a long tune has no application in our country. Section 53 of the Representation of the People Act renders a poll necessary only if there are more candidates contesting the election than the number of seats contested. If the number of candidates validly nominated is equal to the number of seats to be filled, no poll is necessary. Where by an erroneous order of the Returning Officer poll is held which, but for that order, was not necessary, the Court would be justified in declaring those contesting candidates elected, who, but for the order, would have been declared elected. The rule enunciated by the Courts in the United Kingdom has only the merit of antiquity. But the rule cannot be extended to the trial of disputes under our election law, for it is not cons istent with our statute law, and in any case the conditions prevailing in our country do not justify the application of that rule. If the rule is applied in our country, the provisions of Section 84 read with Section 101(a) would practically be nugatory. A part from the immense cost of intimating each voter in the vast electorate in the constituencies the rule that a defeated candidate may be declared elected only if he pleads and proves that the voters had notice of the disqualification would render the exc eption in the context of prevailing illiteracy and ignorance of large sections of the electorate in our country, a dead letter. A very large percentage of the electorate in our country is, unfortunately illiterate and sections thereof not 62 infrequently speak a language different from the language of the majority. It would be well nigh impossible to give information of the disqualification of a candidate in a medium which the illiterate electors understand. We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated, but who is in truth disqualified, could still be treated as valid votes, for the purpose of determining whether a fresh election should be held. When th ere are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqual ification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate.
12. The view that we are taking i s consistent with the implication of Clause (b) of Section 101. When in an election petition which complies with Section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by corrupt practices, the Court is bou nd to declare the petitioner or another candidate elected if, but for the votes obtained by the returned candidate by corrupt practice, such candidate would have obtained a majority of votes . In cases falling under Clause (b) of Section 101 the Act requires merely proof of corrupt practice, and obtaining votes by corrupt practice: it does not require proof that the voters whose votes are secured by corrupt practice had notice of the corrupt practice. If for the application of the rule contained in Clause (b ) notice to the voters is not a condition precedent, we see no reason why it should be insisted upon in all cases under Clause (a). The votes obtained by corrupt practice by the returned candidate, proved to be guilty of corrupt practice, are expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate, and no fresh poll is necessary. The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of the filling of the nomination paper .
(Emphasis is added) 63
100. Thus, on the discussions of the ratio , laid down in the case of Kondappa Laxman (supra), the law surfaces as under:
1. I f the election is held for one seat and there are more than one candidate and one of them is declared as disqualified, the candidate , securing the next highest votes , cannot be declared elected and a recounting would be necessary;
2. I f, however, the election is held for one seat and there are only two candidates and one of them is disqualified, the candidate, obtaining the next highest votes , may be declared elected as the votes obtained by corrupt practices , are required to be kept excluded from being treated as valid votes.
101. Now, this case is peculiar in one sense that unlike many other election s, constituencies , where, ordinarily, several candidates contest the election, this particular election, for the 30 Aalo cons ti tuency, was such that the petitioner and the respondent were the only competing candidates. Thus, all the valid votes would be shared only by these two candidates. The 44 votes, which ought to have been rejec ted, but which have counted in favour of the res pondent, could not have been considered as valid vote and should have been excluded from computation.
102. The very ground on which the election of the respondent has been challenged is that it is the election petitioner, who would have won the election, but because of the fact that as many as 45 postal ballots, 64 which were, otherwise, spurious and forged, had been counted, though there was specific order passed earlier by the Returning Officer not to count these postal ballots inasmuch as they had been received by the authorities concerned through illegal and unauthorised channels. The respondent, thus, came out as the returned candidate. The difference in the votes was, according to the election petitioner, due to improper reception of the postal ballots and illegal counting of the same. This apart, the respondent obtained active help and support of Gazetted Officers of the State Government, including the Returning Officer, in getting the said forged postal ballots counted in his favour. Thus, the respondent indulged in corrupt practice for the purpose of winning the election.
103. The fact which is not in dispute is that the result of the election was declared, on 22.10.2009, wherein the respondent was declared as the elected candidate having 5113 votes polled in his favour as against the 5082 votes polled in favour of the election petitioner, the difference, in votes, obtained by the petitioner and the respondent, being 31 (thirty one) votes only.
104. I t has, now, become necessary to revisit the chain of events proved in the foregoing discussions;
1. Ext. PX 56 register goes to show that 89 registered letters, each containing one postal ballot, pertaining to the voters of 30 Aalo West Assembly Constituency, were booked, by registered post, on 12.10.2009, by Gomo Sora (PW43), Presiding Officer, Postal Ballot.
2. 89 postal ballots were received by Postal Assistant, Jatin Dihingia (PW46), from Gomo Sora, on 12.10.2009, by putting his signature, which stands proved as Ext. PX 56(1). This fact has been confirmed by Jatin Dihingia (PW46) too. 65
3. PW2 (C.L. Lalfakzuala), who is Director of Postal Services, Arunachal Pradesh, produced the record (PX33) showing delivery status of the postal ballots, in question, as per official record maintained by the Postal Department. The said document (PX33) bears the registered letter numbers, names of the postal ballot applicants as well as the destination Post Offices confirming the fact that as many as 69 postal ballots, out of the said 89 postal ballots, had never been delivered to their respective applicants and remained traceless.
4. Ext. PX5 is the letter, dated 03.11.2009, issued by Itanagar Head Post Office, under the signature of the Post Master, Deputy Post Master and the Postal Assistant, furnishing particulars of 57 postal ballots of 30 Aalo West Assembly Constituency, which were never received by Itanagar Post Office. The respective Sub-Post Masters, i.e., PWs 34 to 39, have also confirmed that they had never received the postal ballots addressed to the respective post offices.
5. The evidence of Sukuni Sharma (PW4) has confirmed the fact that 65 letters , addressed to the Assi stant Returning Officer, were received by her, on 20.10.2009, at about 7 am, from one person, whom she has identified as Darka Kamsi. I t may be noted, in this regard, that Darka Kamsi was also a counting agent of the respondent at the place of counting. I n her cross -examination by the election petiti oner, on being declared hostile, PW4 (Sukuni Sharma) has admitted that she stated before the enquiry officer (PW3) that there were postal ballots inside the 65 envelopes, which had been handed over to her. PW4 has also confirmed the fact that the Assistant Returning Officer took, on 20.10.2009, the said 65 letters from her.
6. The Returning Offic er (PW30) has confirmed the fact that 65 postal ballot papers, which were in his custody on 20.10.2009, were illegally received by Sukuni Sharma on 20.10.2009 and the said fact has also been reflected in his (Returning Officer‟s) order , dated 22.10.2009, which is marked as Ext. PX52.
7. That as many as 40 spurious postal ballots, belonging to the said bunch of 65 spurious ballots, received through unauthorised 66 channel of Sukuni Sharma, had, indeed, been counted by the Returning Officer in favour of the res pondent.
8. The Returning Officer has also confirmed, in his evidence, on the basis of the contents of Ext. PX52, the fact that he had, by order, dated 22.10.2009 (as reflected from Ext. PX52) rejected 48 postal ballots from the bunch of 65 postal ballots received from unauthorised channel of Sukuni Sharma.
9. That as many as 17 postal ballots from the said bunch of 65 spurious postal ballots, received by Sukuni Sharma (Pw4), came to be counted by the Returning Officer despite being aware of the fact that these spurious ballots had gone missing and, having been received through unauthorised channel, ought not to have been counted.
10. PW30 (Returning Officer) has also confirmed that besides 17 postal ballots from the said bunch of 65 postal ballots (which were all rejected by him at the initial stage), 23 postal ballots , out of the remai ning 48 rejected postal ballots , came to be also counted b y him.
11. I t has been further confirmed during the i nspecti on, held on 17.03.2011, that four spurious pos tal ballots, issued in the name of Jaiprakash Tiwari, Karto Ete, Jompi Padu and Penya Ete were also counted, on the orders of the Returning Officer, in favour of the returned candidate, though Jaiprakash Tiwari was a person, whose name stood, admittedly, d eleted from the voters list and whose vote could not have been counted; Karto Ete is a person, whose name was included twice, i.e., in the electoral roll in part 13 Serial No.430 and, again, in part 14 Serial No.320 and, henc e, none of these postal ballots could have been counted and, yet, his postal ballot has been counted; similarly, Jompi Padu, a school student, was issued postal ballot against an application, made in Form No.12, b y Nyojum Ete. The postal ballot, issued to Jompi Padu, too, ought not have, thus, been counted.
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12. The Returning Offi cer had, in fact, counted 44 void votes in favour of the resp ondent, which has materially affected the result of the poll. These 44 votes are all void votes and ought not to have been counted in favour of any cand idate. I f these 44 votes were kept excluded from the p oll process, as ought to have been done by the Returning Officer (PW30), then, the petitioner would have, obviously, received, unless shown otherwise, the majority of valid votes and emerge d, as contended by her, the winning candidate.
105. The above proven facts leave no room for doubt that at least, there were 44 votes, which ought to have been rejected, and this is a fact, which even the Returning Officer has confirmed. Thus, applying the ratio laid down in the case of Konappa Rudrappa (supra), these 44 pos tal ballots, being spuriated ones, are required to be excluded from the process of counting. These 44 votes would be subtracted from 5113 votes, the total votes polled by the respondent, and the net result would be that the respondent can be said to have received, and I hold, in the facts and circumstances of the case and the law relevant thereto, that he had received, in all, 5069 votes; whereas the petitioner had, admittedly, received 5082 votes.
106. It may be noted at this juncture that in this case, the petitioner has sought the relief of declaring her as elected after making a declaration that the election of the respondent is void. The respondent had the liberty of filing a recrimination petition raising those pleas, which he could have taken as per law. Respondent has filed recrimination petition, but it has not been pursued or pressed. There is no challenge to the votes polled in favour of the petitioner and no dispute has been raised as regards the fact that the petitioner had received 5082 valid votes in the election.
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107. In the proved circumstances and on the status of the pleadings, the petitioner is found to have received 5082 votes; whereas the respondent is found to have received 5069 votes.
108. No inspection and/or recounting of the votes is found to be necessary in the present facts inasmuch as such an exercise is, ordinarily, taken to ascertain the actual poll pattern among the contesting candidates and also to ascertain whether a vote, which has been accepted as valid, ought to have been rejected. The petitioner has led credible and convincing evidence and it is proved beyond all reasonable doubt that the respondent resorted to corrupt practices in garnering, at least, 44 postal votes, in his favour, in order to see himself as a successful candidate by hoodwinking the electoral process and in gross violation of the statutory instructions.
109. Thus, for the reasons cited above, there remains no escape from the conclusion that the election of the respondent from No.30 Aalo West Assembly (ST) Constituency, Arunchal Pradesh, is liable to be declared as void.
110. Since it is not in dispute that the petitioner was the only other contesting candidate in the said election and she had polled 5082 votes as against 5069 votes found to have been polled by the respondent, after deducting those postal ballots, which ought to have been rejected, there remains no prohibition, having reminded , again, of the ratio laid down in Konappa Rudrappa (supra), in declaring the petitioner as elected to the No. 30 Aalo West Assembly (ST) Constituency, Arunachal Pradesh as she has secured the highest number of votes.
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111. In the resul t, the petitioner, having proved her case, is entitled to the relief that t he election of the respondent for the 30 Aalo Wes t Assembly Constituency is void.
112. Having secured highest number of votes the petitioner is entitled to a further declaration that she has been duly elected to 30 Aalo West Assembly Constituency in the election held on 13.10.2009.
113. The issue Nos. f, g & h are, therefore, decided in affirmative and in favour of the petitioner.
114. The election petition is allowed on contest with cost.
115. I t is hereby declared that the election of the respondent to the No. 30 Aalo West Assembly (ST) Constituency, Arunachal Pradesh, is void.
116. It is further declared that the petitioner has been duly elected to 30 Aalo West Assembly Constituency in the election held on 13.10.2009.
117. An authenticated copy of this judgment be sent to the Election Commission and the Speaker of the Arunachal Pradesh Legislative Assembly in accordance with the provisions of Section 103 of the ROP Act, 1951.
118. With the above observations and directions, this election petition shall stand disposed of.
JUDGE rknjdutt 70