Gauhati High Court
Nur Mahammad vs Nekibul Hussain Khan & Ors on 1 March, 2011
Author: I. A. Ansari
Bench: I. A. Ansari
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR,
TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No. 3083 of 2010
NUR MAHAMMAD,
S/O ISHAHAQUE ALI,
VILLAGE-PATANGITOLA,
P.S. MANKACHAR,
DIST. DHUBRI, ASSAM.
- Petitioner
- Versus -
1. NEKIBUL HUSSAIN KHAN,
S/O LT. HAZI MAHHAMAD ALI KHAN,
R/O DARUA KAWAHAGI (JHALERCHAR),
P.S. MANKACHAR,
DIST. DHUBRI, ASSAM.
2. THE DEPUTY COMMISSIONER,
DIST. DHUBRI, ASSAM.
3. THE SUB-DIVISIONAL OFFICER -CUM -
RETURNING OFFICER OF PANCHAYAT ELECTION,
HATSINGIMARI, P.S.SOUTH SALMARA,
DIST. DHUBRI, ASSAM.
4. THE EXTRA ASSISTANT COMMISSIONER-CUM-
ASSISTANT RETURNING OFFICER OF PANCHAYAT ELECTION,
HATSINGIMARI, P.S.SOUTH SALMARA,
DIST. DHUBRI, ASSAM.
- Respondents
BEFORE HON'BLE MR. JUSTICE I. A. ANSARI For the petitioner : Mr. AB Choudhury, Senior Advocate, Mr. I Rafique, Advocate, Mr. J Rahman, Mr. N Alam, Advocates.
For the respondents : Mr. D Saikia, Advocate.
Date of hearing & Judgment: 1st March, 2011.
JUDGMENT AND ORDER
[ ORAL ]
The petitioner herein contested the election for membership of No. 2 Kalapani Zilla Parishad Constituency from No. 1 Mankachar Page 2 of 24 WP(C) No. 3083 of 2010 Constituency, he being a candidate nominated by Indian National Congress. He was, on 29-01-2008, declared elected by defeating his nearest rival candidate, who is respondent No. 1 herein, by a margin of 85 votes, the respondent No. 1 having been nominated by All India United Democratic Front. The counting, in question, took place on 29-01-2008 and it was on that very day that the result was, as indicated hereinbefore, declared announcing the petitioner herein as the returned candidate. Besides the petitioner and the respondent No. 1 herein, there were three more candidates in the election, wherein altogether 33,244 votes were polled.
2. By way of an election petition, made under Section 129 of the Assam Panchayat Act, 1994, read with the provisions of the Representation of the People Act, 1951, the respondent No. 1 herein challenged the validity of the result of the said election, the grounds of challenge, in the election petition, being that the result of the election had been materially affected by improper counting of votes, cancellation of valid votes, acceptance of unsigned ballot papers in favour of the returned candidates, illegal rejection of postal ballots, votes missing from ballot boxes, excess ballots discovered from the ballot boxes during the counting and illegal counting by unauthorized persons. It was also the case of the election petitioner-respondent No. 1 herein that aggrieved by the irregularities and illegalities committed during the counting process, he had tried to submit a representation, in writing, with the request for recounting, to the returning officer, but the returning officer was not available and when he could be found by the election petitioner (i.e., the respondent No. 1), in the local circuit house, the returning officer was with the local Member of the Legislative Assembly and access to him was Page 3 of 24 WP(C) No. 3083 of 2010 denied to the election petitioner by the security personnel, whereupon the election petitioner went to the residence of the Assistant Returning Officer and submitted his representation requesting for recounting. Though the Assistant Returning Officer received with great reluctance, the said representation, no action was ever taken on the said representation made by the election petitioner.
3. By his election petition, the election petitioner had sought for the following reliefs:
"(a) an order declaring the election of returning candidate of "No. 2 Kalapani Zila Parishad Constituency has been materially affected by improper counting, improper acceptance of void votes, improper rejection of valid vote, improper cancellation of valid votes;
(b) an order directing the respondent Nos. 2, 3 & 4 for recounting the entire votes of No. 2 Kalapani Zila Parishad Constituency by fresh enquiry as to validity, invalidity of the votes in favour of the petitioner and respondent No. 1, after fresh enquiry of entire cancelled and rejected vote and fresh scrutiny as the votes found missing in the ballot box and vote found excess in ballot box.
(c) an order from the Tribunal to declare the petitioner or the respondent NO. 1 to be elected on the basis of fresh counting result."
4. The present writ petitioner, as elected candidate, resisted the election petition by contending, inter alia, that the election petition was itself not maintainable inasmuch as the election petition did not disclose cause of action and that no case for either recounting or declaring the result of the election illegal and/or invalid, could be made out inasmuch as the counting, according to the present petitioner, had been Page 4 of 24 WP(C) No. 3083 of 2010 conducted in accordance with the requirements of law and the result of the election had been validly declared.
5. The learned District Judge framed the following issues for determination:
"1. Whether the election petition is maintainable in law in the present form and manner?
2. Whether the election petition is bad for non-joinder of all the contesting candidates and bad for misjoinder of necessary parties?
3. Whether the allegations and grounds made in the petition amounts to challenge the election of respondent No. 1?
4. Whether this Tribunal has got jurisdiction to try this Election Petition?
5. Whether the petition is entitled for an order of recounting of the votes polled?
6. Whether the petitioner is entitled to any relief/reliefs as prayed for?"
6. Following the framing of the issues, as indicated above, the election petitioner (i.e. the respondent No. 1) as well as the elected candidate (i.e., the writ petitioner herein) adduced evidence, the election petitioner having examined himself and three other persons as his witnesses and the present writ petitioner, apart from examining two witnesses, in support of his case, examined himself as witness.
7. The learned Court below answered all the issues in favour of the election petitioner. While dealing with the issue No. 6, the learned Court below directed recounting of the votes. An order was accordingly made on 07-05-2010. Aggrieved by the order, dated 07-05-2010, whereby the learned District Judge directed recounting of the votes, this writ petition has been filed, under Article 226/227 of the Constitution of India, seeking Page 5 of 24 WP(C) No. 3083 of 2010 to get set aside and quashed the order, dated 07-05-2010, aforementioned.
8. I have heard Mr. AB Choudhury, learned Senior counsel, assisted by Mr. J Rahman, learned counsel, for the petitioner, and Mr. D Saikia, learned counsel for the respondent No. 1.
9. While considering the present writ petition, it needs to be borne in mind that this writ petition is not, and cannot be treated be, an appeal against the order, dated 07-05-2010, whereby a direction to hold recounting has been given. In order, therefore, to maintain this writ petition, the writ petitioner has the onus to show that the findings, reached by the learned Court below, are perverse in the sense that the same have been reached without any evidence being present in support of such findings and/or that the findings are wholly against the evidence on record. This apart, the petitioner may also challenge the order, impugned in the writ petition, on the ground that the election petition itself was not maintainable in the sense that it did not disclose the material facts giving rise to cause of action and/or that the order directing recounting is not in accordance with law.
10. Appearing on behalf of the writ petitioner, Mr. Choudhury, learned Senior counsel, contends that the election petition did not contain any specific statement giving material facts, which could justify a direction for holding of recounting.
11. Considering the fact that the writ petitioner contends that the election petition did not disclose material facts giving rise to the cause of Page 6 of 24 WP(C) No. 3083 of 2010 action, it is necessary to determine as to what a material fact means, what is material particular and what constitutes cause of action? WHAT IS CAUSE OF ACTION:
12. Coming to the question as to what 'cause of action' means, 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)].
13. The 'cause of action' has no relation whatever to the defence, which may be set up by the defendant, nor does it depend upon the character of the reliefs prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. [Chand Kour Vs. Partap Singh, reported in (1887-88) 15 JA 1566].
14. What becomes transparent from the above discussion is that the expression 'cause of action' means a bundle of facts, which, if traversed, a plaintiff must prove to entitle him to receive a judgment in his favour. The cause of action bears no relation to the defence, which may be set Page 7 of 24 WP(C) No. 3083 of 2010 up by the defendant, nor does it depend upon the character of the relief
(s) sought for. The cause of action is nothing, but the media upon which the plaintiff or the petitioner seeks the Court to arrive at a conclusion in his favour. For determining, therefore, the question as to whether a plaint or election petition discloses a 'cause of action', the Court must take into account all the facts pleaded in support of the cause of action without, however, embarking upon an enquiry as to the correctness or otherwise of the facts pleaded.
MEANING OF MATERIAL FACT :
15. Since an election petition must contain a concise statement of material facts on which an election petitioner relies in order to get the election of the returned candidate declared void, one has to necessarily understand, in correct perspective, what the expression, 'material fact', means and how can one distinguish 'material fact' from 'material particular' ?
16. In the case at hand, as the election petitioner does not challenge, admittedly, the election of the returned candidate on the ground of 'corrupt practice', we are more concerned with the meaning of the expression 'material fact' than the meaning of the expression, material particular, though the distinction between the two is, at times, difficult to notice.
17. Let me point out as to what the expression, 'material fact', convey. In this regard, it may be noted that the expression, 'material fact', has been explained in many of the decisions in the realm of 'corrupt practice'. However, the meaning of the expression, 'material fact', does not depend Page 8 of 24 WP(C) No. 3083 of 2010 upon the question as to whether the result of an election is challenged on the ground of 'corrupt practice' or on some other grounds as permitted in the RP Act, 1951. In other words, the meaning of the expression, 'material fact', remains the same irrespective of the fact as to whether one faces challenge to the result of an election on the ground of 'corrupt practice' or on any other statutory ground.
18. In Hari Shanker Jain Vs. Sonia Gandhi, reported in (2001) 8 SCC 233, the Supreme Court has pointed out that by a series of decisions of the Court, it is well settled that the 'material facts' required to be stated are those facts, which can be considered as 'materials' supporting the allegations made. In other words, they must be such facts as would afford a 'basis' for the allegations made in the petition and would constitute the 'cause of action' as is understood in the Code. In short, thus, 'material facts' mean those facts, which support the allegations made by an election petitioner, or those basic facts on which rest the allegations made in the election petition.
19. The Supreme Court has also pointed out, in Sonia Gandhi's case (supra), that omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad. The function of the party is to present as full a picture of the cause of action with such further information, in detail, as to make the opposite party understand the case he will have to meet. (See also Samant N. Balkrishna Vs. George Fernandez, reported in 1969 (2) SCC 433, and Jitendra Bahadur Singh Vs. Krishna Behari, reported in 1969 (3) SCC 283 ).
Page 9 of 24WP(C) No. 3083 of 2010
20. All the primary facts, which must be proved, at the trial, by a party, to establish the existence of a cause of action or his defence, are 'material facts'. [See Udhav Singh Vs. Madhav Rao Scindia, reported in (1977) 1 SCC 511].
21. In V. S. Achuthanandan Vs. P. J. Francis and Anr. , reported in (1999) 3 SCC 737, the Supreme Court has held, on a conspectus of a series of its decisions, that 'material facts' are such preliminary facts, which must be proved, at the trial, by a party to establish existence of a 'cause of action' and failure to plead 'material facts' is fatal to the election petition.
22. Whether in an election petition, a particular fact is material or not, and as such, required to be pleaded or not is a question, which depends on the nature of the charge levelled, the ground relied upon and the special circumstances of the case. In short, all those facts, which are essential to clothe the petitioner with a complete 'cause of action', are 'material facts', which must be pleaded and failure to plead even a single material fact amounts to disobedience of the mandate of Section 83 (1) (a ). (See Azhar Hussain Vs. Rajiv Gandhi (AIR 1986 SC 1253 ).
23. The Supreme Court has further pointed out, in Azhar Hussain Vs. Rajiv Gandhi (AIR 1986 SC 1253, that all the primary facts, which must be proved by a party to establish a 'cause of action' or his 'defence', are 'material facts'.
MATERIAL PARTICULAR :
24. One may also point out that 'particulars', on the other hand, as laid down in Azhar Hussain (supra), are "the details of the case set up by the Page 10 of 24 WP(C) No. 3083 of 2010 party". 'Material particulars' would, therefore, mean all the details, which are necessary to amplify, refine and embellish the 'material facts' already pleaded in the petition in compliance with the requirements of clause (a) of Section 83 (1) of the RP Act, 1951, particulars serve the purpose of giving finishing touches to the basic contours of a picture already drawn, to make it full, more detailed and more informative. DISTINCTION BETWEEN MATERIAL FACT AND MATERIAL PARTICULAR :
25. The distinction between 'material facts' and 'material particulars' was brought out by Scott, L. J. in Bruce Vs. Odhams Press Ltd. (1936) 1 KB 697, in the following passage:
"the cardinal provision in Rule 4 is that the statement of claim must state the material facts. The word "material" means necessary for the purpose of formulating a complete cause of action; and if anyone "material" statement is omitted, the statement of claim is bad; it is "demurrable" in the old phraseology, and in the new is liable to be "struck out" under R. S. C. Order XXV, Rule 4 (see Philipps v. Philipps ( (1878) 4 QBD 127)); or "a further and better statement of claim" may be ordered under Rule 7. The function of "particulars"
under Rule 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he had to meet and to enable him to prepare for trial".
(Emphasis is added) Page 11 of 24 WP(C) No. 3083 of 2010
26. The dictum of Scott, L. J. , in Bruce's case (supra), has been quoted with approval by the Supreme Court in Samant N. Balkrishna Vs. George Fernandez, reported in (1969) 3 SCC 238, and, having approved the aforesaid dictum, the Supreme Court has observed:
"section 83 requires that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particular of the corrupt practice alleged. 'material facts' and 'particulars' may overlap but the word 'material' shows that the ground of corrupt practice and the facts necessary to formulate a complete cause of action must be stated. The function of the particulars is to present as full a picture of the cause of action as to make the opposite party understand the case he will have to meet. "
27. In short, thus, the word 'material' means necessary for the purpose of formulating a complete 'cause of action'; and even if one 'material' statement is omitted, the statement of claim becomes bad; whereas the purpose of "material particulars" is in the context of the need to give the opponent sufficient details of the charge set up against him and to give him a reasonable opportunity to effectively respond. WHAT IS THE 'test' WHETHER A PLEADING STATES 'material facts' OR NOT ?
28. Succinctly explaining the expression, 'material facts', the Supreme Court has observed, in Azhar Hussain's case (supra), that 'material facts' are facts, which, if established, would give the petitioner the relief asked for. The 'test' required to be answered is, points out the Supreme Court, in Azhar Hussain (supra), whether the court could have given a 'direct verdict' in favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the Page 12 of 24 WP(C) No. 3083 of 2010 facts pleaded in the petition. The relevant observations, made in Azhar Hussain (supra), read as under:
"14. Before we deal with these grounds seriatim, we consider it appropriate to restate the settled position of law as it emerges from the numerous decisions of this Court, which have been cited before us in regard to the question as to what exactly is the content of the expression "material facts and particulars", which the election petitioner shall incorporate in his petition by virtue of Section 83 (1) of the Act. (1) What are material facts and particulars? Material facts are facts, which, if established, would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a direct verdict in. favour of the election petitioner in case the returned candidate had not appeared to oppose the election petition on the basis of the facts pleaded in the petition.
(2) * * * * * * (3) * * * * * * (4) * * * * * * (5) * * * * * * (6) * * * * * *. "
[emphasis is added]
29. From the above observations, made in Azhar Hussain (supra), what becomes clear is that the 'material facts' are those facts, which, if established, would give the petitioner the relief asked for. The test required to be answered is whether the court could have given a 'direct verdict' in favour of the election petitioner, on the basis of the facts pleaded in the petition, in case the returned candidate had not appeared to oppose the election petition. Thus, if, on the basis of the facts pleaded in an election petition, the election petition can be allowed even if the returned candidate does not appear, those facts would be 'material facts'.
Page 13 of 24WP(C) No. 3083 of 2010
30. In short, in order to determine whether an election petition contains 'material facts' or not, the test would be whether the facts, which have been stated in the election petition, if accepted in their entirety, would lead to the allowing of the election petition. This principle is in consonance with Order VIII Rule 10, which enables the Court to pronounce judgment in a case, if any party, from whom a written statement is required, fails to present the same within the time permitted or fixed by the Court, as the case may be.
31. The allegation, therefore, that a person is not an eligible voter is merely an allegation. This can be, at best, treated as a ground for disqualification of a person, but this is not sufficient to give a declaration that 'x' is not an eligible voter. The election petition must 'disclose' as to why the election petitioner considers the opponent, 'x', as an ineligible voter. The reason for calling a person an ineligible voter has to be supported by 'material facts'. If such facts are given, then, one can say that there is an allegation that the opponent is an ineligible voter and that this allegation is supported by 'material facts'.
32. The next question would be whether such 'material facts', based on which the allegation has been made, are or are not true. The truth or veracity would be tested by evidence. Therefore, the test of a material fact is whether, in support of the allegations, all such facts, which are necessary to sustain the allegation, have or have not been stated in an election petition. If a person, therefore, alleges that a person 'x' is not eligible to cast vote, in a given election, by means of 'postal ballot', his election petition must assign reason. The reason, so assigned, must be complete in nature so that a Court can, on the basis of such pleadings, Page 14 of 24 WP(C) No. 3083 of 2010 would be able to give the verdict that 'x' is or is not an eligible voter even without taking evidence if the opponent does not contest. Unless such facts are stated, it cannot be stated that the election petition discloses 'cause of action'.
33. Bearing in mind the position of law as indicated above, let me come to the election petition, wherein, while alleging various anomalies in the counting of votes, the election petitioner, I find, averred, at Para 3, as under:
"I. COUNTING ANNOMALIES AFFECTING THE RESULT
3. That the result of election so far it concerned the defeat of the petitioner and victory of respondent No. 1 has been materially affected by:
A: (i) improper receiption of void and cancelled vote in favour of returned candidates;
(ii) improper rejection and cancellation of valid vote against the Petitioner;
(iii) acceptance of unsigned ballot in favour of returned candidates;
(iv) illegal rejection of postal vote;
(v) missing of vote from Ballot Box;
(vi) excess ballot discovered from Ballot Box;
B: Under influence of political power during counting illegal counting by unauthorized employees C: Irregularities and illegalities committed during counting by the appointed Government employees appointed by Respondent No. 2 & 3.
4. That available records showed that minimum 42 votes were found missing from the Ballot Box and as many as 37 excess and invalid votes discovered from Ballot Box.
5. That many invalid and false vote were counted affecting the result of the returned candidates; In 13/3 of Benger Vita G.P. as many as 12 numbers of vote unsigned by Presiding Officer were taken into consideration.
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6. That in 10/9 Kumargathi L.P. School (Rt) as many as 100 ballots unsigned by Presiding Officer, was accepted in the favour of returned candidate ignoring the objection of Monowar Hussain Mondal.
7. That in table No. 12/6 and 12/8 as many as 130 numbers of cancelled votes were accepted in favour of returned candidate.
8. That even in case of postal ballot there was material anomaly, out of 164 ballot issued, 158 were returned and received in office in due time by returning officer, but it is mysterious enough that only 143 numbers of vote was counted, missing or destroying as many as 15 votes, projecting the undue influence of M.L.A. in power.
9. That prior to counting candidate wise bundles of 25 votes were to be made for couonting in lot, but in case of AUDF candidate bundle of 27/28 votes were found and in case of congress candidate bundle found containing 23/24 ballots, as a result while counting it lot discrepancy occurred."
II. ILLEGALITIES IN COUNTING PROCESS
10. That counting continued from 8AM of 28.1.08 to 7PM of 29.1.08 but during this prolong period counting has been done by same Counting Assistants in violation of declaration and broadcasting in T.V. by Election Commission directing to change counting Assistants at an interval of 8 hours.
11. That during counting period there were load shedding thrice, inside the counting room, during that period Counting Supervisor of Congress candidate Bharat Sarma in table No. 4 was once caught red-handed in putting ballots from petitioner's bundle into the bundle of Congress candidate.
12. That attempt of influencing the result was further projected while during counting a bundle of 40 votes for the petitioner was found concealed under the table by the counting agent in 12/8 Bengervita G.P., which was later on discovered.
13. That by such an irregular and illegal process of counting as many as 1522 votes were rejected wherein as many as 500 valid vote of the petitioner shall be recovered if fresh counting be made. Page 16 of 24 WP(C) No. 3083 of 2010
14. That even the result sheet noting number of votes in 13/3 Chirakhawa L.P. School (Rt) and in 13/10 Jhalarchar M.E. School (Rt), over writing of figures as to vote cast, created strong doubt as to the actual vote polled in favour of the petitioner and returned candidate.
15. That even counting result sheet of 12/3 Raqngapani apprehended to have been changed as it bears no signature of counting Supervisor.
16. That at the last stage of counting unauthorized person, Eunus Ali Ahmed, LDA Election Branch and Ismail Hussain, LDA of SDO's Officer entered into the Counting Room and started counting to favour the congress candidate.
17. That before completion of counting of the last two tables respondent No. 3 and his assistants, Wahed Ahmed, Extension Officer, Agriculture and Safiqul Islam, i/c BDO, Fekamari left the counting room at 7-15 PM on 29.1.08, and after completion of counting A.R.O. was not available in the room to declare result.
18. That as there was huge anomaly, improper counting, improper acceptance of invalid vote and improper rejection of valid vote, urging recounting, the petitioner rushed to meet the Returning Officer, the respondent No. 2, who was at that time was not available in his office and was found in circuit house with local MLA in secret conference, and the petitioner was not allowed to enter into the room, and was resisted by security personal.
19. That there after the petitioner went to the residence of A.R.O., the respondent No. 3 and tendered him the petition with prayer of recounting, but at first he flatly refused to accept it, but on being heavily insisted, he received the petition and forward it to the Returning Officer, the respondent No. 2, but no action has been taken over it.
20. That the result of returning candidate being prima facie found to be materially affected by huge anomaly causing improper counting, cancellation, acceptance and rejection of votes contrary to rules, it was a fit case of recounting the votes of No. 2 Kalapani Zila Parishad Constituency, but under undue influence of political party in power, the Returning Officer did not allow Page 17 of 24 WP(C) No. 3083 of 2010 recounting, which compelled the petitioner to file this Election Petition."
34. On a careful reading of the averments, which the election petitioner has made in his election petition, it clearly transpires that the election petitioner had alleged several anomalies and illegalities committed in the process of counting. The allegations were specific. These facts, if proved, would give the relief, which the election petitioner has sought for. As a corollary, it becomes clear that if the facts, so alleged, were true, then these facts did give rise to cause of action for seeking the result of the election set aside. Viewed in this light, It cannot be said that the election petition did not contain material facts and if the facts, so alleged, were true, then these facts did give rise to cause of action for seeking the result of the election set aside.
35. Nothing could be pointed out from the end of the writ petitioner that the facts as appearing under the heading 'counting anomalies affecting the result' and 'illegalities in counting process' are not specific or vague. The question, however, remains as to whether the election petitioner could make out a case warranting an order for recounting? In this regard, it is noteworthy that while it is true that a narrow margin of victory, in an election, may not, in itself, be a ground for directing recounting of votes, the fact remains that in an election petition, when the election petitioner succeeds in making out a case that the anomalies and/or illegalities committed in the process of counting involved more than the margin of votes by which the returning candidate has won, there is no impediment, on the part of the Court trying an election petition, to direct recounting in such a case. Recounting of votes has a serious Page 18 of 24 WP(C) No. 3083 of 2010 bearing on the election process. Unless, therefore, a clear case warranting issuance of direction for recounting is made out by demonstrating that the result of the election is based on illegal and/or invalid counting of votes, no direction for recounting can be passed.
36. In the backdrop of the position of law as indicated above, when I turn to para 8 of the election petition, I notice that it was specifically averred by the election petitioner that even in the case of postal ballot, there was material anomaly inasmuch as the total number of postal ballots issued was 164 and out of the 164 ballot papers so issued, 158 were returned and received by the returning officer within due time, but only 143 votes were counted and as regards the disappearance or destruction of the remaining 15 number of votes, there was no explanation at all. There was no specific denial of these assertions made by the election petitioner in the written statement of the writ petitioner inasmuch as the writ petitioner merely stated, in his written statement, that the allegations, made in para 8 of the election petition, are not admitted; more so, when the writ petitioner did not dispute the fact that the total number of postal ballots issued were 164 and out of the postal ballots, so issued 153 were returned within due time, but out of 153 postal ballots, only 143 were counted and, as regards the disappearance of the remaining 15 postal ballots, there was no explanation at all. Having not been specifically controverted, the averments made to the effect that 15 number of votes, which had been cast by way of postal ballot, became untraceable and not accounted for remain proved.
37. In fact, in support of his above pleaded case, even in para 3 of his examination-in-chief, which was filed, on an affidavit, the election petitioner deposed that the total number of postal ballots issued was 164, Page 19 of 24 WP(C) No. 3083 of 2010 158 ballots were returned, but only 143 ballots were counted by destroying as many as 15 ballots. Though a suggestion was offered to the election petitioner that there was no rejection of postal ballot, this suggestion remained a mere suggestion inasmuch as nothing could be elicited from the cross-examination of the election petitioner or his witnesses to indicate that what had been deposed to by election petitioner was wrong or incorrect.
38. Coming to para 4 of the election petition, it may be noted that according to the averments, made in para 4, by the election petitioner, the available record shows that at least, 42 votes were found missing from the ballot boxes and as many as 37 excess and invalid votes were found in the ballot boxes. Even this assertion of the election petitioner was not specifically controverted inasmuch as what the writ petitioner contended, in his written statement, was merely that the statement, made in para 4, was not admitted. This apart, in para 4 of his examination-in-chief, the election petitioner stated that out of the total six polling stations, total excess votes found, as per the Presiding Officer's diary and the result sheets, was 37 and that 57 votes were found missing. This was supported by the Presiding Officer's Diary, proved as Ext. 4 to 26, and the result sheets proved as Ext. 1(5) to 1(7). These assertions too could not be shaken by cross-examination.
39. What can also not be ignored is that in para 9 of his election petition, the election petitioner averred that the counting was done by making bundles of 25 votes polled in respect of each of the candidates; but in his (i.e., the election petitioner's) case, the bundles contained 27/28 votes each, whereas in the case of the writ petitioner, the bundles contained 23/24 votes each. What, thus, was contended, in the election Page 20 of 24 WP(C) No. 3083 of 2010 petition, by the election petitioner was that the counting had been done by supposedly making bundles of 25 votes polled in respect of each of the candidates, but, as a matter of fact, in the case of the election petitioner, the bundles, so made, contained 27/28 votes, whereas the returned candidate's bundles contained 23/24 votes each. The writ petitioner denied this assertion in his written statement, but there was no specific denial inasmuch as it was not contended by the returned candidate (i.e., the election petitioner) that the bundles were prepared with 25 votes each, polled in respect of each of the candidates, nor was it disputed, specifically, that the bundles, which were prepared in respect of the election petitioner, contained as many as 27/28 votes, whereas the writ petitioner's bundles contained 23/24 votes each.
40. What is, now, of immense importance to note is that in para 5 of his affidavit, which contained the examination-in-chief of the election petitioner, the election petitioner averred that the Counting Assistant made the bundles of 27 ballots in the case of the petitioner and lesser number of votes were in the bundle of the present writ petitioner. This assertion of the election petitioner went, amazingly enough, wholly unchallenged by the present writ petitioner. What, thus, becomes clear is that the bundles of ballot papers, which were made in the present case, suffered from lack of uniformity and this was by itself sufficient to direct recounting, because it is only with the help of recounting that the correct number of votes polled in favour of each of the candidates could have been determined and can, now, be determined.
41. Yet again, in para 6 of his examination-in-chief, the election petitioner stated that in Center No. 13/3 of Bangervita GP, 12 number of ballots, not signed by the Presiding Officer, was counted in favour of the Page 21 of 24 WP(C) No. 3083 of 2010 present writ petitioner despite objections raised by the election petitioner. No cross-examination, surprisingly enough, on this aspect of the election petitioner's assertion took place. The assertion of the election petitioner, therefore, that despite objection raised by the election petitioner's counting agents as many as 12 number of votes, which had not been signed by the Presiding Officer, were counted in favour of the returned candidate (i.e., the writ petitioner) remained intact and unshaken.
42. The election petitioner, in para 9 of his examination-in-chief, stated that the result sheet, in respect of counting of votes of 12/3 Rangapani, bore no signature of the counting supervisor. This assertion too went unrebutted in cross-examination of the election petitioner.
43. Close on the heels of the above evidence, what may not be noted is that in para 10 read with para 11 of his affidavit, which contained the examination-in-chief of the election petitioner, the election petitioner stated that before the completion of the last stage of counting, the Assistant Returning Officer and his assistant, Wahed Ahmed, Extension Officer, Agriculture, and Sofiqul Islam, I/C BDO, Fekamari, left counting room at 07:15 pm, on 29-01-2008 and, on completion of the counting, the Returning Officer was not available, in the room, to declare the result. The election petitioner has further stated that in order to seek recounting, he wanted to make a representation to the returning officer, but the Returning Officer was not available at the place of counting inasmuch as he was busy in the circuit house with the local MLA and the election petitioner was not allowed to meet the returning officer by the security personnel, whereupon, he (election petitioner) went to the residence of the Assistant Returning Officer and gave the representation for recounting Page 22 of 24 WP(C) No. 3083 of 2010 there. This apart, the election petitioner has also stated that though the returning officer received the petition, he did not take any action thereon. Thus, the objection, which was, admittedly, raised by the election petitioner seeking recounting, was not even attended to and no decision was taken thereon by the returning officer.
44. From the discussion held above, what clearly emerges is that as far as the counting was concerned, the bundles of votes polled, which had been prepared candidate wise, were not uniform and this illegality in itself was sufficient to order recounting inasmuch as it cannot be held, with confidence, as to what was the correct number of votes, which had been received by each of the candidates. This apart, as already noted above, there is no explanation for the disappearance or destruction of 15 number of postal ballots nor is there any explanation as to how as many as 37 votes were found in excess of what had been polled nor there is any explanation discernible from the materials on record as to why the 57 votes, which had not been polled were found in the ballot box.
45. Though it has been pointed out, on behalf of the writ petitioner, that the election petitioner's agent admitted that he could not identify the ballot papers containing double stamps, the fact remains that even if the allegation, as regards the allegation of double stamping of ballot papers having been counted in favour of the returning candidate, is ignored, the materials, which had, otherwise, surfaced on record, were sufficient to warrant recounting of votes.
46. As already indicated above, this writ petition cannot be treated as an appeal; yet, considering the nature of the writ petition, an attempt Page 23 of 24 WP(C) No. 3083 of 2010 was made, in the present petition, by this Court to determine if the findings, reached by the learned Court below and/or the order for recounting, which has been passed in the instant case were perverse, wholly against the weight of the evidence on record and/or against the law relevant thereto. However, the examination of the pleadings of the parties in the election proceedings by this Court and the evidence adduced by them clearly make out, I find, a clear case for recounting of votes inasmuch as it was in the facts and attending circumstances of the present case, as discussed above, could not have been validly ascertained as to how many votes had really been polled in favour of each of the candidates. The writ petitioner has completely failed to show that the election petition suffered from lack of disclosure of material facts and/or that the conclusion for directing of recounting was reached without any evidence being available on record or that the direction for recounting was wholly contrary to the evidence on record.
47. Situated thus, it becomes clear that the writ petition does not disclose any such material, which would warrant, in exercise of this Court's extra-ordinary jurisdiction under Article 226 of the Constitution of India, interference with the findings reached by the learned Court below and the direction for recounting passed by it nor has any case been made out by the writ petitioner warranting interference with the direction for recounting passed by the learned Court below in exercise of this Court's supervisory jurisdiction under Article 227 of the Constitution of India.
48. In the result and for the reasons discussed above, this writ petition fails and the same shall accordingly stand dismissed.
49. The parties are left to bear their own costs.
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50. Considering the fact that the election took place as far back as in the month of January, 2008, and more than 3 years have already elapsed, the learned District Judge, Dhubri, shall pass further necessary order ensuring that the recounting of votes takes place within a period of four weeks from today.
JUDGE PAUL-dutt