An order for recounting of votes must be based on a prima facie genuine need established by the Election Petitioner, and the Election Tribunal must give a positive finding as to how a prima facie case has been made out for issuing a direction for recounting.

JUDGMENT :

The instant wit petition has been filed assailing the order dated 03.03.2021 passed in Misc. (Election) Case No.5/2019 whereby the election of the Petitioner as a Member of Anchalik Panchayat of No. 8 Gobardhana Anchalik Panchayat was set aside and the Respondent No. 1 herein was declared elected as the Member of the No. 8 Gobardhana Anchalik Panchayat from the area of 96 No. Pachim Howly Gaon Panchayat.

2. The facts in brief is that the Petitioner herein contested the Panchayat Election 2017-18 for Anchalik Panchayat Member of No. 8 Gobardhana Anchalik Panchayat from No. 96 Pachim Howly Gaon Panchayat constituency in Barpeta District as a nominated candidate of the Asom Gana Parishad (for short ‘AGP’). The Respondent No. 1 herein had also contested the said election as the nominated candidate of Bharatiya Janata Party (for short ‘BJP’). There was no other candidate other than the Petitioner and the Respondent No. 1 to the said election for Anchalik Panchayat Member of No. 8 Gobardhana Anchalik Panchayat. The polling for the said election was held on 09.12.2018. The votes were counted on 12.12.2018 and 13.12.2018 in the premises of M.C. College, Barpeta. During the said counting, it was found that the total votes polled were 6207 and out of which 1163 votes were rejected. The total valid votes were found to be 5044 and out of which the Petitioner secured 2547 votes whereas the Respondent No. 1 secured 2497 votes. On the basis of the said counting the Petitioner was declared to be elected as an Anchalik Panchayat Member of No. 8 Gobardhana Anchalik Panchayat from Panchim Howly Gaon Panchayat and an election certificate dated 13.12.2018 was issued by the Respondent No. 3 i.e. the Deputy Commissioner, Barpeta. It is also seen from the perusal of the writ petition that the Petitioner thereupon took oath as the member of the said Anchalik Panchayat and continued discharging her functions as the duly elected representative of her constituency.

3. The Respondent No. 1 being aggrieved with the result, filed an election petition under Sections 127/129 of the Assam Panchayat Act, 1994 (for short ‘the Act of 1994’). The said election petition was filed before the learned District Judge-cum-Panchayat Election Tribunal, Barpeta on 03.01.2019. The records shows that the said election petition was registered and numbered as Misc. (Election) Case No.5/2019. In the said election petition, it was stated that after counting of the votes, the Respondent No. 1 herein (the Election Petitioner) was informed that she had obtained 2547 votes whereas the Petitioner herein (the Respondent No. 3 in the said election petition) obtained 2497 votes and the Respondent Nos.1 & 2 i.e. Deputy Commissioner, Barpeta District as well as the SDO(Civil)-cum-Returning Officer, Barpeta Sub-Division verbally declared the Respondent No. 1 herein as the winner. However, later on the Respondent Nos. 1 & 2 to the election petition i.e. the Deputy Commissioner, Barpeta as well as the SDO(Civil) –cum-Returning Officer, Barpeta Sub-Division declared the Petitioner herein as the winner. As the Petitioner obtained 2547 votes whereas the Respondent No. 1 herein obtained 2497 votes, it is under such circumstances, the election petition was filed alleging that the vote counting process conducted by the Deputy Commissioner, Barpeta as well as the SDO(Civil) –cum-Returning Officer, Barpeta Sub-Division were found doubtful.

4. There were five grounds taken in the said election petition. Taking into account its relevance for the purpose of the instant dispute, the same are reproduced hereinunder :-

1. For that the petitioner should have been declared elected formally of 8 No. Gobardhana A.P. from the area of 96 No. Paschim Howly, G.P.;

2. For that the returning officer erred in his attitude by not showing the doubtful and rejected votes to the counting agent of the petitioner and not adding votes out of the doubtful and rejected votes in favour of the petitioner ;

3. For that the