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1998 Supreme(Gau) 168
GAUHATI HIGH COURT
V.Dutta Gyani, J.
Kiran Kumar Gogoi -Appellant
Versus
Shyam Mewara -Respondent
Election Petition No. l of 1996
Decided On : 09-06-1998
N.Saikia, J.M.Das , D.Barua, A.J.Das
Irregularities and illegalities committed during counting which materially affect the election result warrant a recount.
Headnote:
ELECTION LAW - Representation of Peoples Act, 1951 - Section 80, 80A and 81 - Election petition - Irregularities and illegalities committed during counting - Material effect on election result - Recounting of votes ordered.
Fact of the Case:
The election petitioner, who was a candidate in the Assam Legislative Assembly election from Constituency No. 115, Moran, District Dibrugarh, filed an election petition challenging the election of the respondent No.2, who was declared elected. The petitioner alleged gross irregularities and illegalities committed during counting which materially affected the election result.
Finding of the Court:
The Court found that there were several irregularities and illegalities committed during counting, including non-tallying of signatures of Presiding Officers on ballot boxes, discrepancy in the actual number of ballot papers issued and the number of ballot papers used, improper rejection of valid votes and improper reception of invalid votes. The Court also found that the break in counting as announced on 9th morning was not justified and that no precautions were taken to keep the ballot papers intact during the break.
Issues: 1. Whether the counting of votes and the procedure adopted by the Returning Officer was in contravention of the provisions of the Conduct of Election Rules ? 2. Whether there was any discrepancy in the actual number of ballot papers issued and the number of ballot papers used with particular reference to Polling Station No. 72 and 97, if so, its affect on election result ? 3. Whether the respondent No.l had driven away the counting agent and election agent of the petitioner ? Its effect on election. 4. Whether the election petitioner is entitled to an order of recounting of votes ? 5. What other relief or cost the petitioner is entitled ?
Ratio Decidendi: The Court held that the irregularities and illegalities committed during counting had materially affected the election result and that a recount was necessary to ensure a fair and just election. The Court also held that the break in counting was not justified and that no precautions were taken to keep the ballot papers intact during the break.
Final Decision: The Court ordered a recount of votes and directed the District Election Officer-cum-Returning Officer, Dibrugarh to produce complete record pertaining to counting of votes along with ballot papers before the Registrar General of the Court. The Registrar General was directed to scrutinise, examine and recount the ballot papers in accordance with Rules, in presence of the parties or their accredited authorised agents not exceeding two in number.
2. There were in all nine contestants in the field. The returned candidate was a nominee of the Indian National Congress (I) while the election petitioner was sponsored by Asom Gana Parisad. His election symbol was 'Elephant', while that of respondent No.2 was 'Hand'.
3. Polling was held on 27.4.96, while counting was scheduled for 8.5.96. This time-gap between polling and counting led to some apprehensions, a petition was filed in this Court to ensure that ballot boxes were hot tampered with, during this period and the Court issued a direction to that effect. It is the petitioners case that as directed by the High Court, he appointed (i) Lila Gogoi, (ii) Sibaprasad and (iii) Minaram, as his accredited agents to keep a watch on the guard room where ballot boxes from all constituencies were kept. The strong room was in the Govt. Boys' Higher Secondary School, Dibrugarh.
4. Petitioner's grievance is that his agents were not allowed by the District Election Officer despite High Court's order, to keep a watch, for one or the other reason, rather excuse like, want of police verification of agents so appointed.
5. The election petitioner has based and claimed his relief mainly on the ground of gross irregularities and illegalities committed during counting which has materially affected the election result.
6. Boothwise irregularities as noticed on the day of counting are -
(1) Signature of Presiding Officer of Booth No.15 on ballot boxes AS/22/ 68042 did not tally with the signature of Mr. Tapan Goswami, a complaint Ext 2 was lodged by six contestants excluding respondent No.2 the returned candidate and two others was lodged but this complaint was not attended to.
(2) Total number of voters in Booth No.65 was 665, out of which as per Presiding Officer's report, 516 had cast their votes whereas at the time of counting 606 ballot papers were found.
(3) In Booth No.24, polling was stopped at 2.30 PM. Despite application Ext 3 moved, it was not resumed, nor any action taken by respondent No.l.
(4) In Pollilng Station No.95 as per report submitted by the Presiding Officer 757 votes were polled whereas actual number found only 600.
(5) Similarly in Polling Station No.72, as against the 405 ballot papers issued as per the Presiding Officer's report, the actual number of ballot papers found was 579.
7. Similar irregularities were apprehended in other polling stations as well, which materially affected the election results. The total difference in the above two polling stations itself to 421, which is quite significant and decisive in view of the fact that the returned candidate respondent No.2 has won the election by a narrow margin of 262 votes only.
8. The matter does not rest here. There are other irregularities as well, as pleaded by the election petitioner. At the end of seventh round on 9th May, an hours break between 7AM to 8AM in counting was suddenly declared, when the process of counting was passing through a crucial decisive phase,, the election petitioner was leading by 4429 votes, the break as declared was for an hour, it lasted for two hours. While petitioners counting agents were driven out of the hall, the respondent No.2 and his men were allowed to remain in the hall. It was during this period, with active collusion with the counting staff, many serious illegalities were committed, a large number of ballot papers were wrongly rejected while others received in favour of respondent No.2, thus materially affecting the election result. No precautions are taken during break to keep the ballot papers intact, they were left unattended without taking any care.
9. It is the petitioner's pleaded case
