2003 Supreme(SC) 581

2003(4) Supreme 225
SUPREME COURT OF INDIA
(From Assam High Court)
R.C. Lahoti and B.N. Agrawal, JJ.
Jibontara Ghatowar -Appellant
versus
Sarbananda Sonowal & Ors. -Respondents
Civil Appeal No. 4033 of 2002
Decided on 9-5-2003
Counsel for the Parties :
For the Appellant : G.L. Sanghi, Sr. Advocate, Ms. Meghalee Borthakur, N.G.J.R. Luwang, Ms. Krishna Sarma, Ms. Asha G. Nair, Advocates for M/s. Corporate Law Group, Advocates.
For the Respondents : S.B. Sanyal, Sr. Advocate, Manish Goswami, Ambar Qamaruddin and Rameshwar Prasad Goyal, Advocates.

IMPORTANT POINTS
1. Rule 63 of conduct of Election Rules, 1961 casts an obligation on returning officer to take a decision on prayer for recount depending on formation of prima facie opinion in a reasonable manner.
2. Absence of mark and signature of polling officer on ballot paper renders ballot paper liable to be rejected but still where returning officer feels satisfied that such defect was caused by mistake or failure on part of presiding officer, ballot paper shall not be rejected merely on ground of such defect.

Headnote:(i) Representation of People Act, 1951-Section 80-Conduct of Election Rules, 1961-Rule 63-General Elections to State Legislative Assembly-Respondent No. 1 was declared elected, defeating appellant a nearest rival by margin of 850 votes-Election petition praying for recount of ballot papers-Application for recount setting out grounds moved before appropriate authority i.e. returning officer but remained undisposed of-Statutory obligation on returning officer to decide the matter-Decision has to be in writing and has to contain reasons for decision-It was breach of Rule 63-High Court was not justified in rejecting prayer for permitting a recount. (Para 8)

       (ii) Representation of People Act, 1951-Section 80-Conduct of Election Rules, 1961-Rules 38 and 56-Election to State Legislative Assembly-Respondent No. 1 was elected defeating appellant, a nearest rival by margin of 850 votes-Election petition praying recount-Fact not in dispute that 824 number of votes were rejected by reference to Rule 56(2) and excluded from counting for reasons that they were not bearing signature of presiding officer nor were stamped with any distinguishing mark-At the time of counting there was orally a consensus to reject such votes not bearing signature and distinguishing mark-High Court found that rejection of votes was justified-Appeal-Approach of High Court was wrong-It was for returning officer to decide the matter and he failed in discharge of his obligation-Rejection of ballot papers was contrary to the Rule-A case directing a recount was made out.

       Held : A bare reading of the rules shows that the obligation is cast on the polling officer to stamp with such distinguishing mark as the Election Commission may direct and to sign in full on the back of the ballot papers. The candidate has no role to play in the performance of such duty by the polling officer. Absence of mark and the signature renders the ballot paper liable to be rejected. However, still, where the returning officer feels satisfied that such defect has been caused by any mistake or failure on the part of the presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. An analysis of this rule and the legal implication thereof may not detain us any longer inasmuch as we find these rules having been dealt with in Arun Kumar Bose vs. Mohd. Furkan Ansari & Ors., (1984) 1 SCC 91, wherein this Court found that the absence of signature and distinguishing mark on 74 ballot papers was attributable to failure on the part of the presiding officer. (Para 14)

       Further held : It is pertinent to note that it is nobody s case that 824 ballot papers were spurious. The present one is not a case of booth capturing or rigging. In an election dispute, they are not the candidates alone who are the persons interested. In a democratic set up, as is ours, in an election, the fate of the whole constituency is at stake and every voter and every citizen has, therefore, an interest in that candidate being returned to assembly who has secured the majority of the valid votes. An election dispute cannot be decided on concessions contrary to law. A defect in the ballot papers in the light of Rule 38(1) read with Rule 56(2)(h) having been detected, the issue had to be decided by the satisfaction of the returning officer. The concession given by candidates or their election agents submitting to a decision arrived at by the returning officer in accordance with law may come in the way of that candidate turning around and disputing a doubtful position of law taken as resolved and conceded or accepted. In an election dispute, a consensus contrary to law or a failure to discharge statutory obligation cast on an election officer which has resulted in prejudicing the result of the election, cannot ipso facto claim immunity from challenge. In the present case the returning officer has clearly failed in discharging his obligation cast by first proviso below clauses (g) and (h) of sub-rule (2) of Rule 56. Disagreeing with the High Court, therefore, we hold that these 824 ballot papers should have been included for the purpose of counting. (Para 14)