Election] Misc

IN THE COURT OF THE DISTRICT JUDGE AT JORHAT Present : Sri Vinod Kumar Chandak, M.A., M.Com., LL.B., AJS District Judge, Jorhat.

JUDGMENT IN [ELECTION] MISC. CASE NO. 42 OF 2013 (Petition under Section 127 read with Sections 129 [b]/243 [o] [b] of Assam Panchayat Act, 1994 and Rule 53 of the Assam Panchayat Raj Act, 1990 challenging the declaration of the election result of Gaon Panchayat President from No-33 Uttar Pub Charigaon Gaon Panchayat under Jorhat Sub-Division, District-District)

Smt. Binu Kalita, Wife of Sri Nomal Kalita, Resident of Kaiborta Gaon, Jhanjimukh, P.O. Jhanjimukh, P.S. Teok, District – Jorhat. ……. Petitioner - Versus – 1]. The Chief Election Commissioner, Dispur, Guwahati, Assam

2]. State of Assam, Represented by the Secretary, Government of Assam, Department of Panchayat & Rural Development, Dispur, Guwahati

3]. The Deputy Commissioner-cum-District Election Officer, District-Jorhat

4]. The Sub-Divisional Officer [Sadar], District-Jorhat

5]. Smt. Jitamoni Dutta, Wife of Sri Naren Dutta, Resident of Phukanbari, Jhanjimukh, P.O. Jhanjimukh, P.S. Teok, District-Jorhat. …….. Opposite Parties

APPEARANCES: For the Petitioner : Sri Rintu Goswami, Learned Advocate, Jorhat For the O.Ps : Sri Ashok Kumar Sarma, Government Pleader Date of Argument : 13-06-2017 & 28-06-2017 Date of Judgment : 29-06-2017

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J U D G M E N T

1). This Misc. Case has arisen out of a petition filed by the petitioner Smt. Binu Kalita under Sections 127/129 [b] read with Section 243 [o] [b] of The Assam Panchayat Act, 1994 and Rule 53 of The Assam Panchayat Raj Act, 1990 challenging the declaration of the election result of Gaon Panchayat President From No-8 Jhanjimukh Gaon Panchayat under 11/23 Balama Zila Parishad, Jorhat Sub-Division, Jorhat District.

2). The gist of the petition is that the petitioner was a candidate of Asom Gana Parishad for the election of President from No-8 Jhanjimukh Gaon Panchayat, under 11/23 Balama Zila Parishad, Jorhat Sub-Division, District- Jorhat. It is further stated by the petitioner that the O.P. No-1 is the State Election Commissioner of the State Panchayat Election Commission appointed by the Government of Assam under whose control the Panchayat Election 2013 was held at the instance of the other O.Ps. Further contention of the petitioner is that O.P. No-5 Smt. Jitamoni Dutta also contested the election as candidate of Indian National Congress. The election was held on 30/01/2013 and after the election the O.P. No-3 and 4 arranged counting of votes on 14/02/2013 in respect of the election of President of No-8 Jhanjimukh Gaon Panchayat under 11/23 Balama Zila Parishad, District-Jorhat and during aforesaid counting process twenty authorized agents of Asom Gana Parishad were present but they were not allowed to inspect the rejected ballot papers by the concerned officer of the said venue. It is further submission of the petitioner that some voters put their thumb impression in the ballot papers against the symbol instead of putting the stamp issued by the Election Commission in the blank portion. The aforesaid votes ought to be cancelled by the Election Commission but in the counting process said votes which were in favour of Indian National Congress candidate were considered to be a valid one inspite of strong opposition from the side of counting agents of the petitioner. Further submission of the petitioner is that when they demanded to allow them to inspect the rejected ballot papers, the concerned officer simply ignored her demand. Lastly, it is contended that from the record it reveals that total 128 votes were cancelled but when the counting

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agents asked to show the rejected ballot papers, they refused to show them the rejected ballot papers. The petitioner has also contended that from the result sheet and the diary record it is evident that there are serious discrepancies regarding the entire counting process, for which, she was defeated. Thereafter the petitioner as well as his agents requested the District Election Commissioner to allow them to inspect the postal votes during the time of counting. Moreover, no signature was taken by the counting officer from the candidates and from the agents. It is also submitted by the petitioner that he filed a petition before the Election Officer, Jorhat with a prayer to recount the votes stating about the said discrepancies done at the counting centre. But no fruitful result came forth. The petitioner prays for setting aside the declaration of result on verification of ballot papers on recounting.

3). Notices were served upon the O.Ps and they entered into their appearance. Smt. Jitamoni Dutta, O.P. No-5, who was the winning candidate also filed his written objection. O.P Nos. 1 to 4 being represented by Government Pleader, Jorhat, have entered into appearance and filed joint written objections on their behalf stating inter-alia that it is not true that serious irregularities were done in respect of the counting process; that the counting was done in presence of authorized agent as per rules and procedure of Assam State Election Commission; that the rejection was made in presence of authorized counting agent where the ground of the objection was also marked. To them, the Returning Officer’s decision in case of acceptance or rejection of ballot papers is final as per guideline of Assam State Election Commission. Furthermore, for recounting, candidate or his/her authorized agent should submit written petition immediately after the counting process was over but the petitioner did not submit any petition before the Authorized Officer for recounting. Under the above premises the O.P. Nos. 1 to 4 submitted that the petition is liable to be dismissed.

4). Vide order dated 15/09/2014 my learned predecessor-in-office framed issues in the instant case. Inadvertently the issues were not typed or

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otherwise it may be misplaced. Hence, for just decision of the case, I feel it necessary to frame the following issues: ISSUE NO–1 :- Whether there is any cause of action for the instant proceeding? ISSUE NO–2 :- Whether the suit/case is maintainable in the eye of law and facts? ISSUE NO–3 :- Whether there had been wrong rejection or acceptance of votes affecting the result of the election? ISSUE NO–4 :- Whether there had been any irregularities in the counting of votes adversely affecting the result of the election? ISSUE NO–5 :- To what relief/reliefs the parties are entitled to?

5). The petitioner had examined herself together with three witnesses to support her case and has exhibited numbers of documents to prove her case. The petitioner and her witness were cross-examined on behalf of O.P. Nos. 1 to 4 and O.P. No-5.

6). I have heard the argument placed by the learned counsel for the petitioner, the learned counsel appearing on behalf of O.P. No. 5 as well as learned Government Pleader, Jorhat, appearing on behalf of O.P. Nos. 1 to 4. I have also perused the evidence on record.

7). Issue No-1 & 2 are inter-related to each other and hence they are taken up together for decision. ISSUE NO–1 Whether there is any cause of action for the instant proceeding? ISSUE NO–2 Whether the suit is maintainable in the eye of law and facts? The petitioner Smt. Binu Kalita has submitted her petition challenging the election process of the O.Ps in response to which the O.Ps have filed their separate written objection. Hence, in view of the above it can be safely

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held that there is cause of action and the suit is maintainable in the eye of law. Accordingly, both these two issues are decided in favour of the petitioner.

8). For the sake of convenience and brevity all the remaining three issues are taken up together for the sake of brevity and convenience. ISSUE NO–3 Whether there had been wrong rejection or acceptance of votes affecting the result of the election? ISSUE NO–4 Whether there had been any irregularities in the counting of votes adversely affecting the result of the election? ISSUE NO–5 To what relief/reliefs the parties are entitled to? The petitioner’s whole case stemmed out on the allegation that after the election the O.P. No-3 and 4 arranged counting of votes on 14/02/2013 in respect of the election of President from No-8 Jhanjimukh Gaon Panchayat under 11/23 Balama Zila Parishad, Jorhat Sub-Division, District-Jorhat and during aforesaid counting process the authorized agents of Asom Gana Parishad were present but they were not allowed to inspect the rejected ballot papers by the concerned officer of the said venue. The petitioner has reiterated the same version as contended in her petition as well in her evidence-on-affidavit. During cross-examination on behalf of O.P. Nos-1 to 4, the petitioner admitted that the objection which were given by her before the Returning Officer on 16/02/2013 had no any basis for recounting of votes and hence it was not accepted by the Returning Officer. Further, she contended that she alongwith her agents were personally present at the time of counting of votes; that the rejected ballot papers were shown to her agent by the Returning officer. Petitioners’ version is supported by her witnesses namely Sri Debajit Kalita [PW-2], Sri Ratul Barthakur [PW-3] and Sri Tileswar Kalita [PW-4]. Sri Debajit Kalita [PW-2] during cross-examination stated that the rejected ballot papers were noticed by him where the same contained thumb

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impression of the public; and further that thumb impression on the symbol were rejected by the Returning Officer. During cross-examination, Sri Ratul Barthakur [PW-3] and Sri Tileswar Kalita [PW-4] also deposed in the same line as that of Sri Debajit Kalita [PW-2]. Both these two witnesses categorically stated that the rejected ballot papers were visible to them where they noticed that thumb impression of the public were rejected by the Returning Officer.

9). The Hon’ble Supreme Court in the case of Dr. Jagjit Singh –versus- Gyani Kartar Singh, [1967] 1 SCJ 762, laid down the principle on which inspection and recounting of the ballot boxes can be done in an election petition case as follows: “Therefore, in a proper case, the Tribunal can order the inspection of the ballot boxes and may proceed to examine the objections raised by the parties in relation to improper acceptance or repentance of the voting papers. But in exercising this power the Tribunal has to bear in mind certain important considerations. Under Section 89 [1] Clause-[a] of the Act [i.e., Representation of People’s Act, 1951] requires that an election petition shall contain a concise statement of the material facts on which the petitioner relies and in every case, where a prayer is made by the petitioner for the inspection of the ballot boxes, the Tribunal must enquire whether the application made by the petitioner in that behalf contains a concise statement of the material facts on which he relies. Vague or general allegations that valid votes were not improperly rejected or invalid votes were improperly accepted would not serve the purpose which Section 89 [1] Clause [a] has in mind. An application made for the inspection of ballot boxes must give material facts which would enable the Tribunal to consider whether in the interest of justice, the ballot boxes should be inspected or not. In dealing these questions the importance of the secrecy of the ballot papers cannot be ignored and it is always to be borne in mind that the statutory rules framed under the Act which intend to provide adequate safeguard for the examination of the

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validity or invalidity of votes and for their proper counting. It may be that in some cases, the ends of justice would makes it necessary for the Tribunal to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirement of justice care must be taken to see that election petitioners do not get a chance to make a roving or fishing inquiry in the ballot boxes so as to justify their claim that a return candidates election is void”.

10). In the case of R. Narayanan –versus- Semmalai reported in [1980] 1 SCR 571 the same principle has been reiterated. Now on examination of the facts and circumstances of our case in hand in the touchstone of above laid down principle of the Hon’ble Apex Court it appears that the pleading of the petitioner as to commission of irregularities in the process of counting of ballot papers is found to be vague and general in nature. It is the case of the petitioner that she had filed a proper application before the Returning Officer immediately after the counting process was over but from the photocopy of said Application it is seen that she has only mentioned that irregularities crept out in the election process. Filing of an application before the Returning Officer for the recounting of votes may not be mandatory but the same goes a long way to show that as to on what basis the recounting was sought for. The order of the Returning Officer allowing or rejecting the same would be of great assistance for the election Tribunal to judge the correctness thereof which is evident from the reply submitted from the side of Deputy Commissioner, Jorhat [O.P. No-3]. From the pleadings of the petitioner it is manifest that the allegation made by her were vague and do not come up to the stringent standards laid down by the Hon’ble Supreme Court.

11). My attention has been drawn to Paragraph Nos. 5, 7, 8, 9, 10 and 11 of the election petition wherein the averments made in these paragraphs do not improve the petitioner’s case inasmuch as there is also no material fact has been averred as to how and in what matter the so called valid votes were kept out of

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consideration or invalid votes had been taken into consideration. She has not mentioned therein specifically who were the persons indulging in such malpractices in the process of counting. The petitioner categorically stated that a request was made to the Returning Officer for recounting of the votes on the same day but the Returning Officer did not pay any heed thereto. In the aforesaid situation it was obligatory on the part of the petitioner to prove said fact. But surprisingly she failed to do so. The petitioner categorically stated that the Returning Officer showed the rejected ballot papers to her authorized agents which admission also belies the allegation brought against the O.P. Nos. 1 to 4.

12). Under the above facts and circumstances of the case I am of the considered opinion that the petitioner failed to place the material to convince this Tribunal to show that there had been illegality in reception or rejection of votes in favour of the O.P. No-5. Consequently, I do not see any merit in the election petition and the same is accordingly dismissed. There will be no order as to cost. Given under my hand and seal of this Court on this 29th day of June 2017.

District Judge, Jorhat. Typed & transcribed by:

Sri Mrinal Jyoti Bora, (Stenographer Grade-I)

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