Saniwara Ahmed vs State Of Assam And 3 Ors

1) Heard Mr. M.U. Mahmud, learned counsel for the petitioner. Also heard Mr. M. Nath, learned standing counsel for the respondent no. 1, Ms. M.

Bhattacharjee, learned standing counsel for respondent no. 2 and Mr. B.C. Das, learned senior counsel, assisted by Mr. S.H. Rahman, learned

counsel for the respondent no. 3.

2) The prayer for interim relief was heard on 25.06.2021 and direction was issued to list the matter on 15.07.2021 for passing orders. However, the

matter has been listed today.

3) This writ petition has been filed under Article 226 of the Constitution of India to assail the order dated 01.04.2021, passed by the learned District

Judge, Barpeta in Election Case No. 9/2019.

4) The case of the petitioner is that she was elected as Anchalik Panchayat Member of No. 1 Mandia Anchalik Panchayat from No. 72 Baghmara

Char Gaon Panchayat in the District of Barpeta by a margin of 9 (nine) votes. The respondent no. 3 had challenged the election by filing election

petition before the jurisdictional Court of learned District Judge Barpeta. The petitioner did not file written statement on the date fixed. However, on

08.01.2020, the petitioner had filed a petition to vacate the order to proceed ex parte. The said petition was numbered as petition no. 29/20. While the

hearing on the said petition no. 29/20 was adjourned on several occasions, without disposing of the said petition, the learned District Judge passed an

order for recounting of ballots/ votes.

5) The learned counsel for the petitioner had submitted that notwithstanding that the petition no. 29/20 remained un-disposed, the ballots/ votes was

recounted without any evidence being led by the respondent no.3. It is submitted that as per return of election, the petitioner had secured 2993 votes,

respondent no. 3 had secured and the respondent no. 4 had secured 1689 votes. Total valid votes casted (including postal vote) was 7626, total

rejected vote was 205 and total vote polled was 7831. However, on recounting held on 31.03.2021, the result sheet disclosed that the respondent no.3

had secured 2941 votes, the petitioner had secured 2996 votes and the respondent no. 4 had secured 1706 votes. Total ballot found was 7848 and total

rejected ballot was 205. Accordingly, it is submitted that in the original counting total vote polled was 7831, whereas in the recounting, 7848 votes was

shown to be polled. However, no reason was recorded as regards discrepancy in total votes polled.

6) The learned senior counsel for the respondent has opposed the prayer for any interim relief at this stage. It is submitted that the election case was

proceeding ex parte against the petitioner and therefore, unless the order to proceed ex parte is vacated, the petitioner had no right to agitate his

grievance in this writ petition. It is submitted that the petitioner had put her signature in the result sheet dated 31.03.2021 after recounting of votes.

Hence, the petitioner having participated in the re-counting process is stopped from challenging the result after having lost the election on recounting.

It is also submitted that the petitioner had not challenged the order dated 11.09.2019 by the learned Election Tribunal to call for the ballot papers. It is

also submitted that the order dated 26.03.2021 by the learned Election Tribunal, thereby ordering recounting has also not been challenged. Therefore, it

is submitted that once the record relating to ballot papers were available in the record, merely because the votes was counted, the petitioner would not

suffer any prejudice, more so, when the order dated 26.03.2021 to order recounting was not assailed. Accordingly, it is submitted that the writ petition

was without any merit and therefore, the petitioner was not entitled to any relief, either final or interim.

7) Having considered the LCR available, the Court finds that the petition no. 29/20 was filed on 08.01.2020, which had remained pending for

adjudication even upto 01.04.2021, when the learned Election Tribunal/ District Judge, Barpeta had disposed of the election petition, thereby setting

aside the election of the petitioner and declaring the respondent no.3 to be elected. Notwithstanding the plea raised by the learned senior counsel for

the respondent regarding lapse, if there be any, on part of the petitioner to assail the orders dated 11.09.2019 and 26.03.2021, the learned Election

Tribunal could not have proceeded with the election petition without disposing of petition no. 29/20 and thereby frustrate the very purpose of filing a

petition to set aside the order to proceed ex parte against the petitioner. It is also seen that Rules 54 of the Assam Panchayat (Constitution) Rules,

1995 provides as follows â€" “54. Other matters not provided in these Rules.- As regard other matters not provided in the Assam Panchayat

(Constitution) Rules, 1995, the matters shall be guided by the relevant Rules under the Representation of the Peoples Act, 1951.†The LCR, prima

facie does not demonstrate that in the proceedings of Election Case No. 9/2019, any of the relevant provisions relating to election petition had been

followed. Therefore, presence of the petitioner when recounting was done would not prejudice her in the event the Court arrive at a finding that

provisions relating to election proceeding had not been followed.

8) Thus, in light of the discussions above, the learned counsel for the petitioner has been able to demonstrate that the writ petition discloses existence

of a prima facie case to hear this writ petition on merit. The balance of convenience is found to tilt heavily in favour of the petitioner. Moreover, if the

impugned order is not stayed, the petitioner shall suffer irreparable loss and injury, which cannot be compensated in terms of money. Therefore, the

Court has no hesitation to stay (i) the result-sheet dated 31.03.2021 in respect of the recounting of votes in connection with Election Case No. 9/2019,

and (ii) the impugned order dated 01.04.2021, by which the learned Election Tribunal/ District Judge, Barpeta had set aside and quashed the election

of the petitioner as the Anchalik Panchayat Member of No. 1 Mandia Anchalik Panchayat from 72 No. Baghmara Char Gaon Panchayat.

Resultantly, the status quo ante as prevailing prior to 31.03.2021 stands restored and the petitioner shall continue to remain as the elected Anchalik

Panchayat Member of No. 1 Mandia Anchalik Panchayat from 72 No. Baghmara Char Gaon Panchayat.

9) The prayer for interim relief, thus, stands disposed of on terms as indicated above.

10) It is seen that an affidavit regarding service of notice on respondent no. 4 by dasti mode had been filed on 23.06.2021, wherein the petitioner has

stated on oath that she had served notice to the respondent no. 4 by dasti mode, which she had received on 21.0.2021 under her purported signature.

The said affidavit is accepted as proof of service of notice on the respondent no. 4. None appears on call on behalf of the respondent no. 4. Thus, the

case is ready as records service. The LCR has also been received.

11) In view of the nature of grievance, let a rule returnable forthwith be issued, without requiring the petitioner to take any fresh steps as all the

respondents have been served notice of this writ petition.

12) List this matter for out of turn hearing on 02.09.2021 as agreed to by the learned senior counsel/ counsel representing the appearing parties.

Liberty granted to the respondent no.3 to file affidavit-in-opposition, if so advised, at least one week prior to the next date of listing.