Jibontara Ghatowar vs Sarbananda Sonowal and Others

R.C. Lahoti, J.—General Elections to the Assam Legislative Assembly were held in the months of April/May, 2001. For No. 115, Moran Legislative Assembly Constituency, the appellant, the respondent No. 1 and respondent No. 2 filed their nomination papers respectively as candidates of the Indian National Congress, Asom Gana Parishad and Nationalist Congress Party. The respondents No. 3, 4 and 5 filed their nomination papers as independent candidates. The appellant's election symbol was 'Hand' while that of the respondent No. 1 was 'Elephant'. The respondent No. 1 was declared elected, defeating the nearest rival, the appellant, by a margin of 850 votes. The final result sheet shows the distribution of votes as under:-

Total votes polled 67,581

No. of Rejected votes 2,436

Jibontara Ghatowar (App.) 26,927

Sarbananda Sonowal (R-1) 27,777

Hareshwar Changmai (R-2) 1,241

Joy Chandra Nagbanshi (R-3) 7,902

Biren Borah (R-4) 995

Lukua Changmai (R-5) 303

The appellant filed an election petition laying challenge to the election of the respondent No. 1 seeking its avoidance and also for declaring herself as duly elected. The success or failure of the election petition depended on the fate of the prayer for recount of ballot papers made in the election petition founded on the following grounds, as summed up by the High Court in its judgment:-

"1. Out of total 2436 votes rejected as many as 834 Nos. of votes in respect of polling station No. 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 cast 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.

Total No. of 634 ballot papers concerning polling station No. 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.

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 affecting the orderly counting of votes.

The petitioner filed two applications for recounting of the votes but without passing any order, the results were declared inviolation of the provisions of the Act."

It is not necessary to reproduce the pleadings of the parties in this judgment and it would suffice if the relevant issues are reproduced from the record of the High Court which highlight the controversy around which the trial of the election petition has moved. Issues Nos. 1 to 5 are as under:-

"1. Whether the allegation 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.

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, 66, 76, 92, 102 and 103?

Was there any improper reception of votes and void votes in favour of the respondent No. l in course of counting of votes of 115 Moran LAC in respect of Polling Station No. 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?

If issue No. 4 is decided in favour of the election petitioner whether she is entitled to be declared as elected to No. 115 Moran Legislative Assembly Constituency?

To what other relief(s) the petitioner is entitled to?"

Eleven witnesses, including himself were examined by the election petitioner. The respondent No. 1 himself appeared in the witness box and examined himself. The Returning Officer Shri B.K. Pegu was examined. A few official witnesses were also examined. The High Court found that during the counting the election petitioner had preferred an application (Annexure-3) seeking a recount. An identical copy thereof (Annexure-E) was also moved, the exact time whereof is not known. However, both the applications were moved on 13.5.2001, the day of counting and when the counting was still going on. These applications, Annexure-3 and Annexure-E, were quite brief each containing two sentences only, reading as under:-

"Sub.: Application for recounting.

.............. With reference to the subject cited above I hereby want to state that the counting which has been taken place today is not satisfactory for me.

So I want to request as a candidate of Indian National Congress from Moran Assembly Constituency for recounting of all the ballot Boxes.

Thanking you,

Sd/-"

These applications were rejected by the returning officer on the ground that the applications did not set out any ground for directing a recount.

On the same day, the petitioner presented yet another application for recount which reads as under:

"Dated 13th May, 2001

To

The Returning Officer, 115 Moran L.A.C.

Sub.: Application for re-counting of the above 115 Moran Cons.

Sir,

With reference to the subject mentioned above, I have the honour to request you to grant re-counting in the above Moran 115 LAC for the following reasons below stated.

(1) In center No. 103 where re-poll was ordered and re-poll was held on 12th May, 2001 under proper Security arrangement by the authority and re-poll has done peacefully in the center. It is found that 435 (Approximately) ballot papers were cast in my favour but without the signature of the Presiding Officer and distinguished marks for no fault of mine. The same is the case in center No. 46. In center No. 46 about 150 ballot papers were rejected on the above mentioned ground.

(2) In center No. 30 as per Presiding Officer Diary 697 ballot papers were issued and the same were casted after counting, it was found to be 721.

(3) Many of the countersigned ballot papers disputed were accepted in favour of opposite party candidate.

Therefore, I have great apprehension that justice was not done to me and I strongly urge upon you to order for recounting in the above mentioned 115 Moran Cons. LAC and also I have reason to believe that the with intention the presiding officer was malafide.

Thanking you in anticipation.

Received Jibontara Ghatowar 13.5.2001 Sd.- Illegible INC Candidate 115 Moran LAC 13.5.2001 P.A. to DC and DEO Dibrugarh (Seal) Deputy Commission Dibrugarh District Dibrugarh. Verification

I, Smt. Jibontara Ghatowar, wife of Shri PabanSingh Ghatowar, aged about 40 years, residentof ushapur, Moran Town, P.O. Moranhat, in theDistrict of Sibsgar, Assam, election petitionerof the accompanying election petition dohereby solemnly affirm and verify that theAnnexure -4 to the election petition is a typedcopy of the receipt copy of another applicationdated 13.5.2001 submitted by me to thereturning officer of No. 115 Moran L.A.C.praying for ordering recount of all the ballotpapers in respect of No. 115 Moran L.A.C.,receipt of which was acknowledged by thepersonal Assistant of Deputy Commissioner,Dibrugarh who is also the Returning Officer ofNo. 115 Moran L.A.C. on 13.5.2001.

And in proof thereof, I sign this verification onthis the 25th day of June, 2001 at Guwahati.

(Jibontara Ghatowar)"

The Deputy Commissioner, Dibrugarh was the appointedreturning officer. At the venue of counting he was accompaniedby his P.A. The application Annexure P-3 was received by theP.A. and he made an endorsement on the application of havingreceived the same on 13.5.2001, singed the endorsement ofpresentation in the capacity of P.A. to DC and DEO, Dibrugarhand also affixed the rubber stamp of Deputy Commissionerthereunder, PA, DC and DEO are abbreviations respectively forPersonal Assistant, Deputy Commissioner and District ElectionOfficer. The application Annexure P/3 was also received by theP.A. in the same manner in which the applications Annexure-3and Annexure - E were received by him for and on behalf of DCand DEO. When the DEO Mr. Pegu appeared in the witness boxhe admitted that the application Annexure P-3 was not dealt withby him nor disposed of because it was not brought to his noticeby the P.A.. Thus it is an undisputed fact that the application forrecount, though filed at an appropriate time and setting out thegrounds for permitting a recount, did not receive the attention ofthe returning officer and remained undisposed of. The reasonmay be a lack of communication between the DEO and his P.A.,but that is an internal matter of the two. The fact remains thatthe earlier two applications, similarly received by the P.A., werepromptly brought by him to the notice of the returning officerand received his attention. There is no reason why theapplication Annexure P-3 should not have been similarly broughtby the P.A. promptly to the notice of the DEO and why it shouldnot have received his attention and been disposed of.

Rule 63 of the Conduct of Elections Rules, 1961 reads asunder:-

Re-count of votes.--(1) After thecompletion of the counting, the returningofficer shall record in the result sheet in Form20 the total number of voters polled by eachcandidate and announce the same.

(2) After such announcement has beenmade, a candidate or, in his absence, hiselection agent or any of his counting agentsmay apply in writing to the returning officer tore-count the votes either wholly or in partstating the grounds on which he demands such re-count.

(3) On such an application being madethe returning officer shall decide the matterand may allow the application in whole or inpart or may reject it in toto if it appears to himto be frivolous or unreasonable.

(4) Every decision of the returningofficer under Sub-rule (3) shall be in writingand contain the reasons therefore.

(5) If the returning officer decides underSub-rule (3) to allow a re-count of the voteseither wholly or in part, he shall-

(a) do the recounting in accordance withRule 54A, Rule 56 or Rule 56A, as the casemay be;

(b) amend the result sheet in Form 20to the extent necessary after such re-count;and

(c) announce the amendments to so madeby him.

(6) After the total number of votespolled by each candidate has been announcedunder Sub-rule (1) or Sub-rule (5), thereturning officer shall complete and sign theresult sheet in Form 20 and no application forrecount shall be entertained thereafter.

Provided that no step under this sub-ruleshall be taken on the completion of thecounting until the candidates and electionagents present at the completion thereof havebeen given a reasonable opportunity toexercise the right conferred by Sub-rule (2)."

The rule clearly spells out a statutory obligation on the returningofficer on an application being made under Sub-rule (2) to decidethe matter. He may allow the application in whole or in partdepending on his satisfaction as to the availability of the groundsin support of the prayer for recount and the genuineness andreasonability thereof, which opinion shall, of course, be formedprima facie depending on the facts and circumstances of thegiven case. Recording of evidence or holding of an enquiry onthe application is not required or provided for by the rule. Theapplication may be rejected to the extent to which it appears tohim to be frivolous or unreasonable. The expressions 'shalldecide the matter', 'may allow the application' and 'if it appearsto him' employed in the language of Sub-rule (3) cast anobligation on the returning officer to take a decision on theprayer for recount depending on the formation of prima facieopinion in a reasonable manner and as dictated by the facts andcircumstances of a given case which would obviously defydefinition or formation of any straightjacket formula. Theapplication may be allowed to the extent to which the prayermay be genuine and reasonable. It may be rejected to theextent to which it may be found frivolous or unreasonable. Inany case, a decision has to be taken. The decision has to be inwriting and has to contain the reasons for the decision. Therewas a clear breach of Rule 63 in the present case.

In addition, the learned senior counsel for the appellanthas invited our attention to the statement made in para 33 ofthe written statement replying to the averments made in para 32of the election petition. The respondent states that in theapplication filed before the DEO the only objection raised was inrespect of rejection of votes in polling station Nos. 103, 46 and30 only. It is alleged that in polling station No. 103approximately 435 ballot papers bearing votes cast in favour ofthe petitioner were rejected but from the result sheet (Annexure-1)it is clear that total number of rejected ballot papers wereonly 433. Similarly in polling station No. 46 it is alleged that 150ballot papers were rejected; but from the perusal of the resultsheet (Annexure - 1) the total number of rejected ballot papersin the polling station No. 46 wee only 64. Particulars of thisrejection of 150 ballots papers as alleged by the ElectionPetitioner were not specifically pleaded.

The stand taken in the counter affidavit supports the pleaof the appellant, at least partially, that there was a good numberof ballot papers rejected though not invalid.

Vide para 33 of the election petition, the petitioner hasspecifically averred-

"33. That a recount and rescrutiny of therejected ballot papers and the ballot paperscounted in favour of the Respondent No. 1 willshow that the Petitioner had in fact polled28,474 (26927 + 903 + 644) valid votes whilethe Respondent No. 1 had in fact polled notmore than 27,133 ( 27,777 - 644) votes out ofwhich 200 more ballot papers polled in PollingStation No. 30 should have been rejected.Hence, on the aforesaid statements of materialfacts, it is pre-eminently a fit case where yourLordships would be pleased to order recountand scrutiny of the rejected ballot papers andballot papers counted in favour of theRespondent No. 1 for upholding the sanctityand purity of election process and forestablishing the supremacy of the realmandate of electorate."

During the course of hearing before the High Court, it wasnot disputed that 824 number of votes were rejected byreference to Rule 56(2) and excluded from counting for thereason that they did not bear the signature of the presidingofficer, nor were they stamped with any distinguishing mark. Itseems that at the time of counting there was orally a consensusarrived at that the votes having no seal or signature shall berejected as invalid straightway. The High Court formed anopinion that such rejection of 824 votes was justified. Thesubmission of the learned senior counsel for the appellant is thatthe votes could not have been excluded from the counting and aserious error has been committed at the counting by overlookingof the rules.

Sub-rule (1) of Rule 38 and relevant part of Rule 56provide as under:-

"38. Issue of ballot papers toelectors.--(1) Every ballot paper before, it isissued to an elector, and the counterfoilattached thereto shall be stamped on the backwith such distinguishing mark as the ElectionCommission may direct, and every ballotpaper, before it is issued, shall be signed in fullon its back by the presiding officer.

xxx xxx xxx xxx 56. Counting of Votes.--(1) Theballot papers taken out of each ballot box shallbe arranged in convenient bundles andscrutinized.

(2) The returning officer shall reject aballot paper-

xxx xxx xxx xxx (h) if it does not bear both the mark andthe signature which it should have borneunder the provisions of Sub-rule (1) ofRule 38:

Provided that where the returning officeris satisfied that any such defect as ismentioned in Clause (g) or Clause (h) has beencaused by any mistake or failure on the part ofa presiding officer or polling officer, the ballotpaper shall not be rejected merely on theground of such defect:

Provided further that a ballot paper shallnot be rejected merely on the ground that themark indicating the vote is indistinct or mademore than once, if the intention that the vote -shall be for a particular candidate clearlyappears from the way the paper is marked."

A bare reading of the rules shows that the obligation iscast on the polling officer to stamp with such distinguishing markas the Election Commission may direct and to sign in full on theback of the ballot papers. The candidate has no role to play inthe performance of such duty by the polling officer. Absence ofmark and the signature renders the ballot paper liable to berejected. However, still, where the returning officer feelssatisfied that such defect has been caused by any mistake orfailure on the part of the presiding officer or polling officer, theballot paper shall not be rejected merely on the ground of suchdefect. An analysis of this rule and the legal implication thereofmay not detail us any longer inasmuch as we find these ruleshaving been dealt with in Arun Kumar Bose Vs. Mohd. Furkan Ansari and Others, , wherein this Court found thatthe absence of signature and distinguishing mark on 74 ballotpapers was attributable to failure on the part of the presidingofficer. Having found so, the Court held--

"It was the obligation of the Presiding Officerto put his signature on the ballot papers beforethey were issued to the voters. Every voterhas the right to vote and in the democratic setup prevailing in the country no person entitledto share the franchise can be denied theprivilege. Nor can be candidate be made tosuffer. Keeping this position in view, we are ofthe definite view that the present case is oneof failure on the part of the Presiding Officer toput his signature on those ballot papers so asto satisfy the requirement of law. The proviso,once it is applicable, has also a mandate thatthe ballot paper is not to be rejected. We,therefore, hold that the ballot papers were notliable to be rejected as the proviso applied andthe High Court, in our opinion, came to thecorrect conclusion in counting these ballotpapers and giving credit thereof to therespondent No. 1."

It is pertinent to note that it is nobody's case that 824 ballotpapers were spurious. The present one is not a case of boothcapturing or rigging. In an election dispute, they are not thecandidates alone who are the persons interested. In ademocratic set up, as is ours, in an election, the fate of thewhole constituency is at stake and every voter and every citizenhas, therefore, an interest in that candidate being returned toassembly who has secured the majority of the valid votes. Anelection dispute cannot be decided on concessions contrary tolaw. A defect in the ballot papers in the light of Rule 38(1) readwith Rule 56(2)(h) having been detected, the issue had to bedecided by the satisfaction of the returning officer. Theconcession given by candidates or their election agentssubmitting to a decision arrived at by the returning officer inaccordance with law may come in the way of that candidateturning around the disputing a doubtful position of law taken asresolved and conceded or accepted. In an election dispute, aconsensus contrary to law or a failure to discharge statutoryobligation cast on an election officer which has resulted inprejudicing the result of the election, cannot ipso facto claimimmunity from challenge. In the present case the returningofficer has clearly failed in discharging his obligation cast by firstproviso below Clauses (g) and (h) of Sub-rule (2) of Rule 56.Disagreeing with the High Court, therefore, we hold that these824 ballot papers should have been included for the purpose ofcounting.

It is therefore, clear that so far as 824 votes areconcerned it is a case of rejection of ballot papers contrary tothe provisions contained in the rules and to the law declared bythis Court in case of Arun Kumar Bose (supra). From the othermaterial available on record a case for rejection of other ballotpapers was also made out. The averments made in the counteraffidavit itself show that the number of rejected ballot paperswas 497 out of which 433 ballot papers were in favour of theelection petitioner. These facts coupled with the fact of breachof statutory duty cast on the returning officer by Rule 63 didmake out a case for ordering a recount of ballot papers by theHigh Court.

The High Court in its judgment has referred to thedecisions of this Court in Bhabhi Vs. Sheo Govind and Others, , Satyanarain Dudhani Vs. Uday Kumar Singh and Others, and M.R. Gopalakrishnan Vs. Thachady Prabhakaran and Others, toread the law that the secrecy of ballot papers cannot bepermitted to be tinkered with lightly; that an order for recountis not to be granted as a matter of course; and that the secrecyof ballot papers has to be maintained. In other words, a recounthas to be ordered only when on the basis of material factspleaded in the petition and supported by the contemporaneousevidence a case for recount is made out. A similar view hasbeen taken in a host of other decisions. It is not necessary toburden this judgment by cataloguing all the decisions relevant tothe point. Suffice it to refer to a recent decision of this Court in T.A. Ahammed Kabeer Vs. A.A. Azeez and Others, . This Court noted the observation made earlier in Bhag Mal Vs. Ch. Parbhu Ram and Others, that the Constitution and connected laws aim at ensuring truedemocracy functioning in the country, and the will of the peopleto prevail. That can be achieved by allowing the one torepresent the constituency who has obtained the majority ofvalid votes by proper and due process of law. It would really bea mockery of the procedure of law in a situation where it isdemonstrated duly in the Court that a person who obtained fourvotes less than the other next candidate should be declaredelected in preference to the others and allowed to represent theconstituency.

This Court further held in T.A. Ahammed Kabeer (supra)- "the task before an Election Judge is ticklish. It is often urgedand also held that the success of a winning candidate should notbe lightly set aside and the secrecy of ballot must be zealouslyguarded. On account of a rigid following of these principles theelection courts are inclined to lean in favour of the returnedcandidates and place the onus of proof on the person challengingthe result of the election, insisting on strict compliance with therules of pleadings and excluding such evidence fromconsideration as is in divergence with the pleadings. However,what has so developed as a rule of practice should not be undulystretched; for the purity of the election process needs to bepreserved unpolluted so as to achieve the predominant goal ofdemocracy that only he should represent the constituency whohas been chosen by the majority of the electors. This is thepurpose and object of the election law.

"Though the inspection of ballot papers is to be allowedsparingly and the Court may refuse the prayer of the defeatedcandidate for inspection if, in the grab of seeking inspection, hewas indulging into a roving enquiry in order of fish out materialsto set aside the election, or the allegations made in support ofsuch prayer were vague or too generalized to deserve anycognizance. Nevertheless, the power to direct inspection of ballotpapers is there and ought to be exercised if, based on preciseallegations of material facts, also substantiated, a case forpermitting inspection is made out as is necessary to determinethe issue arising for decision in the case and in the interest ofjustice". It was also held, "it is true that a recount is not beordered merely for the asking or merely because the Court isinclined to hold a recount. In order to protect the secrecy ofballots the Court would permit a recount only upon a clear casein that regard having been made out. To permit or not to permita recount is a question involving jurisdiction of the Court. Oncea recount has been allowed the Court cannot shut its eyes to theresult of recount on the ground that the result of recount asfound is at variance with the pleadings. Once the Court haspermitted recount within the well-settled parameters ofexercising jurisdiction in this regard, it is the result of therecount which has to be given effect to."

"So also, once the Court exercises its jurisdiction to enterinto the question of improper reception, refusal or rejection ofany vote, or the reception of any vote which is void by referenceto the election result of the returned candidate u/s 100(1)(d)(iii), as also as to the result of the election of any othercandidate by reference to Section 97 of the Act and enters intoscrutiny of the votes polled, followed by recount, consistentlywith its findings on the validity or invalidity of the votes, itcannot refuse to give effect to the result of its findings as to thevalidity or invalidity of the votes for the purpose of finding outthe true result of the recount though the actual finding as to thevalidity or otherwise of the votes by reference to number maybe at variance with the pleadings. In short, the pleadings andproof in the matter of recount have relevance for the purpose ofdetermining the question of jurisdiction to permit or not topermit recount. Once the jurisdiction to order recount is foundto have been rightly exercised, thereafter it is the truth asrevealed by the result of recounting that has to be given effectto".

The law so laid down clinches the issue. On the avermentsmade in the pleadings and on the material made available beforethe Court in the present case a clear case for directing a recountwas made out. Certainly the election petitioner was notindulging into a roving inquiry or trying to fish out material. TheHigh Court has also not held so. Therefore, the High Court didacquire a jurisdiction to permit a recount. Once a recount wasordered the decision of the case would depend on the result ofthe recount which shall have to be given effect to.

Shri Sanyal, the learned senior counsel for the respondentNo. 1, submitted that if this Court feels convinced of Rule 63having been violated and a case of strong likelihood of the resultof the election having been materially affected made out, in thatcase, the Court may remand the case to the High Court with adirection to the returning officer to record his satisfaction byreference to Rules 38 read with 56 and Rule 63 and then hissatisfaction being subjected to judicial scrutiny by the High Courtwhereafter only recount may be carried out. We do not find anyauthority or reasoning to support such a proposition. The resultof the election has been declared. The election petition hasalready been subjected to trial. Now, it is for the Court to formits own judicial opinion on the issues raised and act in conformitywith the findings arrived at.

For the foregoing reasons we are of the opinion that theHigh Court was not justified in rejecting the prayer for permittinga recount. The judgment of the High Court is set aside. Thecase is remanded back to the High Court. The High Court shallpermit a recount and then decide the election petition afteraffording the parties an opportunity of hearing and in accordancewith law. The costs shall abide the result.