Rahima Begum vs Rijuma Begum And 5 Ors
2022 Latest Caselaw 3625 Gua

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GAHC010177342022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : I.A.(Civil)/2660/2022

            RAHIMA BEGUM
            W/O CHAND MAHAMMAD ALI, VILL. GHOGA, P.O. LAWTOLA, P.S.
            MUKALMUA, DIST. NALBARI, ASSAM, PIN 781126

            VERSUS

            RIJUMA BEGUM AND 5 ORS.
            W/O MD. MASTOFA ALI VILL. GHOGA, P.O. LAWTOLA, P.S. MUKALMUA,
            DIST. NALBARI, ASSAM, PIN 781126



Advocate for the Petitioner   : MR J H SAIKIA

Advocate for the Respondent : MR. D SARMAH




             Linked Case : WP(C)/6187/2021

            RIJUMA BEGUM
            W/O MD. MASTOFA ALI VILL. GHOGA
            P.O. LAWTOLA
            P.S. MUKALMUA
            DIST. NALBARI
            ASSAM
            PIN 781126


             VERSUS

            RAHIMA BEGUM AND 5 ORS.
                                                        Page No.# 2/7

W/O CHAND MAHAMMAD ALI
VILL. GHOGA
P.O. LAWTOLA
P.S. MUKALMUA
DIST. NALBAR
ASSAM
PIN 781126

2:THE ASSAM STATE ELECTION COMMISSION

HOUSEFED COMPLEX
DISPUR
GUWAHATI 6
3:THE RETURNING OFFICER CUM DEPUTY COMMISSIONER

NALBARI
ASSAM
PIN 781335
4:THE DIST. ELECTION OFFICER

NALBARI
P.O.
P.S. AND DIST. NALBARI
ASSAM
PIN 781335
5:THE ASSTT. RETURNING OFFICER

PANCHAYAT ELECTION 2018
 NALBARI CUM BLOCK DEVELOPMENT OFFICER
 BARKHETRI DEVELOPMENT BLOCK
 MUKALMUA
 P.O. MUKALMUA
 DIST. NALBARI
ASSAM.
 6:BABITA BAISHYA

D/O KHAGEN BAISHYA
 VILL. PURAN AKHIYA
P.S. MUKALMUA
 DIST. NALBARI
ASSAM
PIN 781128 RESPONDENT NO. 1 AND 6 ARE CANDIDATES FOR ELECTION TO
THE POST OF THE PRESIDENT OF THE 61 NO. GHOGA GAON PANCHAYAT
 P.S. MUKALMUA
 P.O. LAWTOLA
 DIST. NALBARI
ASSAM.
 ------------
                                                                            Page No.# 3/7

           Advocate for : MR. M U MAHMUD
           Advocate for : GA
           ASSAM appearing for RAHIMA BEGUM AND 5 ORS.



                                 BEFORE
                HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                       ORDER

19-09-2022

1. Heard Shri M.U. Mahmud, learned counsel for the petitioner. Also heard Shri B.C. Das, learned Senior Counsel assisted by Shri J.H. Saikia, learned counsel for the respondent no. 1 and Mr. R. Dubey, learned Standing Counsel, Assam State Election Commission for respondent nos. 2, 3, 4 and 5.

2. At the outset, this Court has taken into consideration that the respondent no. 1 has also filed an Interlocutory Application being I.A. (Civil)/2660/2022 for vacation of the interim order dated 24.11.2021 passed in the writ petition which has been extended thereafter.

3. As agreed to by the parties and taking into consideration the nature of dispute raised, the writ petition itself is taken up for final disposal.

4. The facts projected in the petition are that the writ petitioner was elected as the President of the No.61 Ghoga Gaon Panchayat in the district of Nalbari. Her election to the President was the subject matter of challenge in an Election Petition filed by the respondent no. 1 in the Court of learned District Judge, Nalbari which was registered as Election Petition No. 2/2018. The challenge was formulated on various grounds. The learned Tribunal vide an order dated Page No.# 4/7

04.10.2021 while fixing a date for examination of witnesses had also directed opening of the ballot boxes.

5. Shri Mahmud, the learned counsel for the petitioner has submitted that so far as the direction constituting summoning of witnesses concerned, he does not have any objection. However, the direction for opening of the ballot boxes according to him is not in accordance with law. The learned counsel for the petitioner has referred to Rule 54 of the Assam Panchayat (Constitution) Rules, 1995 whereby it has been mentioned that for matters not provided in the said Rules, the same would be guided by the relevant provisions of the representations of the Peoples Act, 1951. He contends that amongst other provisions, under the representations of the Peoples Act, Section 176 lays down that a direction for opening of the ballot boxes has to be preceded by a satisfaction arrived at by the learned Tribunal based on relevant and contemporaneous materials on a mechanical manner. He further submits that there has to be an existence of a strong prima facie case which can be arrived at only after examination of witnesses and other materials before the Tribunal. By criticizing the offensive part of the order dated 04.10.2021, the learned counsel has submitted that without fulfilling the conditions precedent, the directions for opening of the ballot boxes has been passed which is not sustainable as per law.

6. In support of his submission, the learned counsel has placed reliance upon a number of case laws including the case of Udey Chand vs. Surat Singh and Anr. reported in (2009) 10 SCC 170. The Hon'ble Supreme court in the aforesaid case has laid down as follows:

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"12. The importance of maintenance of secrecy of ballot papers and the circumstances under which that secrecy can be breached, has been considered by this Court in several cases. It would be trite to state that before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz:

(i) The election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded, and

(ii) On the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary, are satisfied."

26. We have no hesitation in holding that a petition for re-count as contemplated under clause (b) of Section 176(4) of the Act must contain adequate statement of material facts on which the election petitioner relies in support of his allegation(s) and it must also be supported by some contemporaneous evidence to show irregularity or illegality in the counting. On this basic material, which affords the basis for the allegations in the petition and the response of the opposite party thereon, the Tribunal is required to record its prima facie satisfaction that in order to decide the issue raised in the petition and in order to do complete justice between the parties the "scrutiny and computation of the votes" recorded in favour of each candidate is necessary. The need to record reasons in support of the satisfaction can hardly be overemphasized because reasons are the soul of the order/judgment. Therefore, we hold that though in an election petition seeking an order under Section 176 (4) (b) of the Act, it may not be necessary for the Court to hold a regular enquiry as postulated under clause (a) of Section 176(4) of the Act but the Court is obliged to apply its mind to the material facts, disclosed in the petition, on which the allegations of irregularity or illegality are founded, along with some contemporaneous evidence, which would depend on the facts and circumstances of each case. An order for re-count on the basis of bare allegations in the election petition would not be a proper exercise of jurisdiction under the provision."

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7. Though a number of other case laws have been cited on the same issue, for the sake of brevity, the same are not discussed as the point of law has been elaborately explained in the aforesaid case of Udey Chand (supra).

8. On the other hand, Shri Das, the learned Senior Counsel for the respondent no. 1 submits that the election petition was instituted in the year 2018 and the order was passed only on September, 2021 and therefore, it cannot be presumed that the order for opening of the ballot boxes was passed without being satisfied. The learned Senior Counsel however has not joined any issue on the point of law that there has to be a strong prima facie satisfaction on the part of the Tribunal before passing such a direction and it is only the records which would indicate the same.

9. Alternatively, the learned Senior Counsel submits that since there was no embargo on the proceedings and in the meantime, the process of examination of witnesses is over, a direction may be given to conclude the proceedings by the Tribunal. Shri Dubey, the learned Standing Counsel for the Election Tribunal submits that a correct procedure may be directed to be adopted by the Tribunal as laid down by the Hon'ble Supreme Court in interpreting the provision of the Act of 1951.

10. After hearing the parties and on perusal of the materials on records and also taking into aid the guidelines laid by the Hon'ble Supreme court, this Court is of the opinion that a reading of the impugned order dated 04.10.2021 does not reflect that a prima facie satisfaction was arrived at by the learned Tribunal before giving a direction for opening of the ballot boxes. Accordingly, the said Page No.# 7/7

part of the order is set aside and quashed. At the same time, this Court cannot be oblivious of the fact that the election petition is of the year 2018 and the impugned order itself was passed after three years from the institution of the election petition.

11. As indicated above, this Court has also been informed that the process of examination of witnesses is over and the matter is at the final stage of hearing.

12. In view of the above, the writ petition as well as the Interlocutory Application are disposed of by directing the Tribunal to expeditiously conclude the matter.

13. It is however made clear that in the event the Tribunal proposes to pass an order for opening of the ballot boxes, the contesting parties have to be given adequate opportunities to present their case and also to follow the law laid down on this subject.

14. Both the writ petition and Interlocutory Application are accordingly disposed of.

JUDGE

Comparing Assistant