The main legal point established in the judgment is that the petitioner must provide sufficient evidence to support allegations of improper rejection and reception of votes to make out a prima facie case for re-counting.

This Election Petition under Sections 80 and 80A of the Representation of the People Act, 1951 for short, the Act is presented by Smt. Jibontara Ghatowar, hereinafter, referred to as the petitioner challenging the legality and/or validity of election of Sarbananda Sonowal, the contestant respondent No. 1, hereinafter referred to as the respondent to the 115 Moran Legislative Constituency, for short, the Constituency.

2. The petitioner, the respondent, and four others, had participated in the election to the 115 Moran Legislative Assembly Constituency, the polling of which took place on 10-5-2001. The results were declared on 14-5-2001 and the final result sheet reads as under :-

Total Votes Polled No. of Rejected Votes Jibontara Ghatowar Sarbananda Sonowal

67,580 2,346 26,927 27,777

Hareshwar Changmai Joy Chandra Nagbanshi Biren Borah Lukua Changmai

1,241 7,902 995 303

3. In this Election petition, the petitioner has prayed for scrutiny and recounting of the rejected ballot papers and Ballot papers counted in favour of the respondents and thereafter declaring the result of respondent No. 1 void under Section 98B of the Act and declare the petitioner as elected. The material facts with respect to the allegations as stated out in the petition may be broadly summed up as follows :-

1. Out of Total 2436 votes rejected as many as 834 Nos. of votes in respect of polling station Nos. 11, 25, 60, 66, 76, 92, 102 and 103 were rejected for absence of the signature of the Presiding Officer and distinguishing mark or seal on the ballot papers. According to the petitioner, all these votes were casted in favour of the petitioner who had contested the election as a candidate of the Indian National Congress (I) with the symbol of hand. It is submitted that the rejections of the above votes were improper.

2. Total No. of 634 ballot papers concerning polling station Nos. 1, 8, 11, 12 and 28 which were casted in favour of the petitioner were illegally counted in favour of the respondents by placing these ballot papers in the box of the respondents. It is submitted that in some cases the Top and the Bottom ballot papers were in favour of the respondents, whereas the in-between 48 Nos. of ballot papers in the Bundle of 50 belonged to the petitioner and the entire bundle was counted in favour of the respondent.

3. The arrangement in the counting hall was far from satisfactory and there was congestion in the area earmarked for the counting agent for the various political parties. It is further alleged that a large No. of unauthorised persons entered into the counting hall and interfered in the smooth counting of votes effecting the orderly counting of votes.

4. The petitioner filed two applications for re-counting of the votes but without passing any order, the results were declared in violation of the provisions of the Act.

4. The respondent who was declared elected, has contested the petition by filing a written statement. The other losing candidates did not file any written statement.

The following issues were framed :-

"1. Whether the allegations contained in Para 32 of the E.P. as well as the application for recounting of the votes made to the Returning Officer, made out a case for recounting of votes on the ground of materially affecting the result of the Election.

2. Was there any improper rejection of valid votes of the petitioner in course of counting of No. 115 Moran LAC in respect of polling station Nos. 1, 11, 25, 60, 64, 76, 92, 102 and 103?

3. Was there any improper reception of votes and void votes in favour of the respondent No. 1 in course of counting of votes of 115 Moran LAC in respect of Polling Station Nos. 1, 8, 11, 12, 28 and 64 by way of misplacing ballot papers containing votes cast in favour of the election petition in the compartment meant for respondent No. 1 and consequently counting the same in favour of Respondent No. 1?

4. If issue No. 4 is decided in favour of the election petitioner whether she is entitled to