R.C Lahoti, J.— General Elections to the Assam Legislative Assembly were held in the months of April/May 2001. For 115, Moran Legislative Assembly Constituency, the appellant, Respondent 1 and Respondent 2 filed their nomination papers respectively as candidates of the Indian National Congress, Asom Gana Parishad and Nationalist Congress Party. Respondents 3, 4 and 5 filed their nomination papers as independent candidates. The appellant's election symbol was “hand” while that of Respondent 1 was “elephant”. Respondent 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
2. The appellant filed an election petition laying challenge to the election of Respondent 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 re-count 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 a total 2436 votes rejected, as many as 834 numbers of votes in respect of Polling Stations 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 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.
2. Total number of 634 ballot papers concerning Polling Stations 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 respondent, whereas the in between forty-eight numbers of ballot papers in the bundle of fifty 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 number of unauthorised persons entered into the counting hall and interfered in the smooth counting of votes affecting 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.”
3. 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 highlights the controversy around which the trial of the election petition has moved. Issues 1 to 5 are as under:
“1. Whether the allegation contained in para 32 of the EP as well as the application for re-counting of the votes made to the Returning Officer, made out a case for re-counting of votes on the grounds 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 115, Moran LAC in respect of Polling Stations Nos. 1, 11, 25, 60, 64, 66, 76, 92, 102 and 103?
3. Was there any improper reception of votes and void votes in favour of Respondent 1 in course of counting of votes of 115, Moran LAC in respect of Polling Stations Nos. 1, 8, 11, 12, 28 and 64 by way of misplacing ballot papers containing votes cast in favour of the election petitioner in the compartment meant for Respondent 1 and consequently counting the same in favour of Respondent 1?
4. If Issue 4 is decided in favour of the election petitioner, whether she is entitled to be declared as elected to 115, Moran Legislative Assembly Constituency?
5. To what other relief(s) the petitioner is entitled to?”
4. Eleven witnesses, including himself were examined by the election petitioner. Respondent 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 re-count. 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 re-counting.
With reference to the subject cited above, I hereby want to state that the counting which has taken place today is not satisfactory for me.
So I want to request as a candidate of the Indian National Congress from Moran Assembly Constituency for re-counting of all the ballot boxes.
Thanking you,
sd/-”
5. These applications were rejected by the Returning Officer on the ground that the applications did not set out any ground for directing a re-count.
6. On the same day, the petitioner presented yet another application for re-count which reads as under:
“Todated
The Returning Officer,13-5-2001
115, Moran LAC.
Sub.: Application for re-counting of the above 115, Moran Constituency
Sir,
With reference to the subject mentioned above, I have the honour to request you to grant re-counting in the above 115, Moran LAC for the following reasons stated below:
(1) In Centre No. 103 where repoll was ordered and repoll was held on 12-5-2001 under proper security arrangement by the authority and repoll was done peacefully in the centre, 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 Centre No. 46. In Centre No. 46 about 150 ballot papers were rejected on the abovementioned ground.
(2) In Centre No. 30 as per the Presiding Officer's 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 the opposite party candidate.
Therefore, I have great apprehension that justice was not done to me and I strongly urge upon you to order for re-counting in the abovementioned 115, Moran LAC and also I have reason to believe that the intention of the Presiding Officer was mala fide.
Thanking you in anticipation.
ReceivedJibontara Ghatowar
sd/-13-5-2001
IllegibleINC candidate,
13-5-2001115, Moran LAC
PA to DC and DEO,
Dibrugarh
(Seal)
Deputy Commissioner
Dibrugarh District, Dibrugarh.
Verification
I, Smt Jibontara Ghatowar, wife of Shri Paban Singh Ghatowar, aged about 40 years, resident of Ushapur, Moran town, PO Moranhat, in the district of Sibsagar, Assam, election petitioner of the accompanying election petition do hereby solemnly affirm and verify that Annexure 4 to the election petition is a typed copy of the receipt copy of another application dated 13-5-2001 submitted by me to the Returning Officer of 115, Moran LAC praying for ordering re-count of all the ballot papers in respect of 115, Moran LAC, receipt of which was acknowledged by the Personal Assistant of Deputy Commissioner, Dibrugarh who is also the Returning Officer of 115, Moran LAC on 13-5-2001.
And in proof thereof, I sign this verification on this the 25th day of June, 2001 at Guwahati.
(Jibontara Ghatowar)”
7. The Deputy Commissioner, Dibrugarh was the appointed Returning Officer. At the venue of counting he was accompanied by his PA. The application Annexure P-3 was received by the PA and he made an endorsement on the application of having received the same on 13-5-2001, signed the endorsement of presentation in the capacity of PA to DC and DEO, Dibrugarh and also affixed the rubber stamp of Deputy Commissioner thereunder. PA, DC and DEO are abbreviations respectively for Personal Assistant, Deputy Commissioner and District Election Officer. The application Annexure P-3 was also received by the PA in the same manner in which the applications Annexure 3 and Annexure E were received by him for and on behalf of DC and DEO. When the DEO Mr Pegu appeared in the witness box he admitted that the application Annexure P-3 was not dealt with by him nor disposed of because it was not brought to his notice by the PA. Thus it is an undisputed fact that the application for re-count, though filed at an appropriate time and setting out the grounds for permitting a re-count, did not receive the attention of the Returning Officer and remained undisposed of. The reason may be a lack of communication between the DEO and his PA, but that is an internal matter of the two. The fact remains that the earlier two applications, similarly received by the PA, were promptly brought by him to the notice of the Returning Officer and received his attention. There is no reason why the application Annexure P-3 should not have been similarly brought by the PA promptly to the notice of the DEO and why it should not have received his attention and been disposed of.
8. Rule 63 of the Conduct of Elections Rules, 1961 reads as under:
“63. Re-count of votes.—(1) After the completion of the counting, the Returning Officer shall record in the result-sheet in Form 20 the total number of votes polled by each candidate and announce the same.
(2) After such announcement has been made, a candidate or, in his absence, his election agent or any of his counting agents may apply in writing to the Returning Officer to re-count the votes either wholly or in part stating the grounds on which he demands such re-count.
(3) On such an application being made the Returning Officer shall decide the matter and may allow the application in whole or in part or may reject it in toto if it appears to him to be frivolous or unreasonable.
(4) Every decision of the Returning Officer under sub-rule (3) shall be in writing and contain the reasons therefor.
(5) If the Returning Officer decides under sub-rule (3) to allow a re-count of the votes either wholly or in part, he shall—
(a) do the re-counting in accordance with Rule 54-A, Rule 56 or Rule 56-A, as the case may be;
(b) amend the result-sheet in Form 20 to the extent necessary after such re-count; and
(c) announce the amendments so made by him.
(6) After the total number of votes polled by each candidate has been announced under sub-rule (1) or sub-rule (5), the Returning Officer shall complete and sign the result-sheet in Form 20 and no application for a re-count shall be entertained thereafter:
Provided that no step under this sub-rule shall be taken on the completion of the counting until the candidates and election agents present at the completion thereof have been given a reasonable opportunity to exercise the right conferred by sub-rule (2).”
The rule clearly spells out a statutory obligation on the Returning Officer on an application being made under sub-rule (2) to decide the matter. He may allow the application in whole or in part depending on his satisfaction as to the availability of the grounds in support of the prayer for re-count and the genuineness and reasonability thereof, which opinion shall, of course, be formed prima facie depending on the facts and circumstances of the given case. Recording of evidence or holding of an enquiry on the application is not required or provided for by the rule. The application may be rejected to the extent to which it appears to him to be frivolous or unreasonable. The expressions “shall decide the matter”, “may allow the application” and “if it appears to him” employed in the language of sub-rule (3) cast an obligation on the Returning Officer to take a decision on the prayer for re-count depending on the formation of prima facie opinion in a reasonable manner and as dictated by the facts and circumstances of a given case which would obviously defy definition or formation of any straitjacket formula. The application may be allowed to the extent to which the prayer may be genuine and reasonable. It may be rejected to the extent to which it may be found frivolous or unreasonable. In any case, a decision has to be taken. The decision has to be in writing and has to contain the reasons for the decision. There was a clear breach of Rule 63 in the present case.
9. In addition, the learned Senior Counsel for the appellant has invited our attention to the statement made in para 33 of the written statement replying to the averments made in para 32 of the election petition. The respondent states that in the application filed before the DEO the only objection raised was in respect of rejection of votes in Polling Stations Nos. 103, 46 and 30 only. It is alleged that in Polling Station No. 103 approximately 435 ballot papers bearing votes cast in favour of the petitioner were rejected but from the result-sheet (Annexure 1) it is clear that total number of rejected ballot papers was only 433. Similarly, in Polling Station No. 46 it is alleged that 150 ballot papers were rejected; but from the perusal of the result-sheet (Annexure 1) the total number of rejected ballot papers in Polling Station No. 46 was only sixty-four. Particulars of this rejection of 150 ballots papers as alleged by the election petitioner were not specifically pleaded.
10. The stand taken in the counter-affidavit supports the plea of the appellant, at least partially, that there was a good number of ballot papers rejected though not invalid.
11. Vide para 33 of the election petition, the petitioner has specifically averred:
“33. That a re-count and rescrutiny of the rejected ballot papers and the ballot papers counted in favour of Respondent 1 will show that the petitioner had in fact polled 28,474 (26,927 + 903 + 644) valid votes while Respondent 1 had in fact polled not more than 27,133 (27,777-644) votes, out of which 200 more ballot papers polled in Polling Station No. 30 should have been rejected. Hence, on the aforesaid statements of material facts, it is pre-eminently a fit case where Your Lordships would be pleased to order re-count and scrutiny of the rejected ballot papers and ballot papers counted in favour of Respondent 1 for upholding the sanctity and purity of election process and for establishing the supremacy of the real mandate of the electorate.”
12. During the course of hearing before the High Court, it was not disputed that 824 number of votes were rejected by reference to Rule 56(2) and excluded from counting for the reason that they did not bear the signature of the Presiding Officer, nor were they stamped with any distinguishing mark. It seems that at the time of counting there was orally a consensus arrived at that the votes having no seal or signature shall be rejected as invalid straight away. The High Court formed an opinion that such rejection of 824 votes was justified. The submission of the learned Senior Counsel for the appellant is that the votes could not have been excluded from the counting and a serious error has been committed at the counting by overlooking of the rules.
13. Sub-rule (1) of Rule 38 and relevant part of Rule 56 provide as under:
“38. Issue of ballot papers to electors.—(1) Every ballot paper before it is issued to an elector, and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct, and every ballot paper, before it is issued, shall be signed in full on its back by the Presiding Officer.
56. Counting of votes.—(1) The ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinized.
(2) The Returning Officer shall reject a ballot paper—
(h) if it does not bear both the mark and the signature which it should have borne under the provisions of sub-rule (1) of Rule 38:
Provided that where the Returning Officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a Presiding Officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect:
Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.”
14. A bare reading of the rules shows that the obligation is cast on the polling officer to stamp with such distinguishing mark as the Election Commission may direct and to sign in full on the back of the ballot papers. The candidate has no role to play in the performance of such duty by the polling officer. Absence of mark and the signature renders the ballot paper liable to be rejected. However, still, where the Returning Officer feels satisfied that such defect has been caused by any mistake or failure on the part of the Presiding Officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect. An analysis of this rule and the legal implication thereof may not detain us any longer inasmuch as we find these rules having been dealt with in Arun Kumar Bose v. Mohd. Furkan Ansari (1984) 1 SCC 91, wherein this Court found that the absence of signature and distinguishing mark on seventy-four ballot papers was attributable to failure on the part of the Presiding Officer. Having found so, the Court held:
“It was the obligation of the Presiding Officer to put his signature on the ballot papers before they were issued to the voters. Every voter has the right to vote and in the democratic set-up prevailing in the country no person entitled to share the franchise can be denied the privilege. Nor can the candidate be made to suffer. Keeping this position in view, we are of the definite view that the present case is one of failure on the part of the Presiding Officer to put his signature on those ballot papers so as to satisfy the requirement of law. The proviso, once it is applicable, has also a mandate that the ballot paper is not to be rejected. We, therefore, hold that the ballot papers were not liable to be rejected as the proviso applied and the High Court, in our opinion, came to the correct conclusion in counting these ballot papers and giving credit thereof to Respondent 1.”
It is pertinent to note that it is nobody's case that 824 ballot papers were spurious. The present one is not a case of booth-capturing or rigging. In an election dispute, there are not the candidates alone who are the persons interested. In a democratic set-up, as is ours, in an election, the fate of the whole constituency is at stake and every voter and every citizen has, therefore, an interest in that candidate being returned to assembly who has secured the majority of the valid votes. An election dispute cannot be decided on concessions contrary to law. A defect in the ballot papers in the light of Rule 38(1) read with Rule 56(2)(h) having been detected, the issue had to be decided by the satisfaction of the Returning Officer. The concession given by candidates or their election agents submitting to a decision arrived at by the Returning Officer in accordance with law may come in the way of that candidate turning around and disputing a doubtful position of law taken as resolved and conceded or accepted. In an election dispute, a consensus contrary to law or a failure to discharge statutory obligation cast on an election officer which has resulted in prejudicing the result of the election, cannot ipso facto claim immunity from challenge. In the present case the Returning Officer has clearly failed in discharging his obligation cast by the first proviso below clauses (g) and (h) of sub-rule (2) of Rule 56. Disagreeing with the High Court, therefore, we hold that these 824 ballot papers should have been included for the purpose of counting.
15. It is, therefore, clear that so far as 824 votes are concerned, it is a case of rejection of ballot papers contrary to the provisions contained in the rules and to the law declared by this Court in the case of Arun Kumar Bose (1984) 1 SCC 91. From the other material available on record a case for rejection of other ballot papers was also made out. The averments made in the counter-affidavit itself show that the number of rejected ballot papers was 497, out of which 433 ballot papers were in favour of the election petitioner. These facts coupled with the fact of breach of statutory duty cast on the Returning Officer by Rule 63 did make out a case for ordering a re-count of ballot papers by the High Court.
16. The High Court in its judgment has referred to the decisions of this Court in Bhabhi v. Sheo Govind (1976) 1 SCC 687, Satyanarain Dudhani v. Uday Kumar Singh 1993 Supp (2) SCC 82 and M.R Gopalakrishnan v. Thachady Prabhakaran 1995 Supp (2) SCC 101 to read the law that the secrecy of ballot papers cannot be permitted to be tinkered with lightly; that an order for re-count is not to be granted as a matter of course; and that the secrecy of ballot papers has to be maintained. In other words, a re-count has to be ordered only when on the basis of material facts pleaded in the petition and supported by the contemporaneous evidence a case for re-count is made out. A similar view has been taken in a host of other decisions. It is not necessary to burden this judgment by cataloguing all the decisions relevant to the point. Suffice it to refer to a recent decision of this Court in T.A Ahammed Kabeer v. A.A Azeez (2003) 5 SCC 650, JT (2003) 4 SC 110. This Court noted the observation made earlier in Bhag Mal v. Ch. Parbhu Ram (1985) 1 SCC 61 that the Constitution and connected laws aim at ensuring true democracy functioning in the country, and the will of the people to prevail. That can be achieved by allowing the one to represent the constituency who has obtained the majority of valid votes by proper and due process of law. It would really be a mockery of the procedure of law in a situation where it is demonstrated duly in the court that a person who obtained four votes less than the other next candidate should be declared elected in preference to the others and allowed to represent the constituency.
17. This Court further held in T.A Ahammed Kabeer (2003) 5 SCC 650, JT (2003) 4 SC 110:
“26. The task before an Election Judge is ticklish. It is often urged and also held that the success of a winning candidate should not be lightly set aside and the secrecy of the ballot must be zealously guarded. On account of a rigid following of these principles the Election Courts are inclined to lean in favour of the returned candidates and place the onus of proof on the person challenging the result of election, insisting on strict compliance with the rules of pleadings and excluding such evidence from consideration as is in divergence with the pleadings. However, what has so developed as a rule of practice should not be unduly stretched; for the purity of the election process needs to be preserved unpolluted so as to achieve the predominant goal of democracy that only he should represent the constituency who has been chosen by the majority of the electors. This is the purpose and object of the election law.
27. Though the inspection of ballot papers is to be allowed sparingly and the court may refuse the prayer of the defeated candidate for inspection if, in the garb of seeking inspection, he was indulging in a roving enquiry in order to fish out materials to set aside the election, or the allegations made in support of such prayer were vague or too generalized to deserve any cognizance. Nevertheless, the power to direct inspection of ballot papers is there and ought to be exercised if, based on precise allegations of material facts, also substantiated, a case for permitting inspection is made out as is necessary to determine the issue arising for decision in the case and in the interest of justice.”
It was also held:
“28. It is true that a re-count is not to be ordered merely for the asking or merely because the court is inclined to hold a re-count. In order to protect the secrecy of ballots the court would permit a re-count only upon a clear case in that regard having been made out. To permit or not to permit a re-count is a question involving jurisdiction of the court. Once a re-count has been allowed the court cannot shut its eyes on the result of re-count on the ground that the result of re-count as found is at variance with the pleadings. Once the court has permitted re-count within the well-settled parameters of exercising jurisdiction in this regard, it is the result of the re-count which has to be given effect to.
29. So also, once the court exercises its jurisdiction to enter into the question of improper reception, refusal or rejection of any vote, or the reception of any vote which is void by reference to the election result of the returned candidate under Section 100(1)(d)(iii), as also as to the result of the election of any other candidate by reference to Section 97 of the Act and enters into scrutiny of the votes polled, followed by re-count, consistently with its findings on the validity or invalidity of the votes, it cannot refuse to give effect to the result of its findings as to the validity or invalidity of the votes for the purpose of finding out the true result of re-count though the actual finding as to validity or otherwise of the votes by reference to number may be at variance with the pleadings. In short, the pleadings and proof in the matter of re-count have relevance for the purpose of determining the question of jurisdiction to permit or not to permit re-count. Once the jurisdiction to order re-count is found to have been rightly exercised, thereafter it is the truth as revealed by the result of re-counting that has to be given effect to.”
18. The law so laid down clinches the issue. On the averments made in the pleadings and on the material made available before the Court in the present case, a clear case for directing a re-count was made out. Certainly the election petitioner was not indulging in a roving inquiry or trying to fish out material. The High Court has also not held so. Therefore, the High Court did acquire a jurisdiction to permit a re-count. Once a re-count was ordered the decision of the case would depend on the result of the re-count which shall have to be given effect to.
19. Shri Sanyal, the learned Senior Counsel for Respondent 1, submitted that if this Court feels convinced of Rule 63 having been violated and a case of strong likelihood of the result of the election having been materially affected made out, in that case, the Court may remand the case to the High Court with a direction to the Returning Officer to record his satisfaction by reference to Rule 38 read with Rule 56 and Rule 63 and then his satisfaction being subjected to judicial scrutiny by the High Court whereafter only re-count may be carried out. We do not find any authority or reasoning to support such a proposition. The result of the election has been declared. The election petition has already been subjected to trial. Now, it is for the Court to form its own judicial opinion on the issues raised and act in conformity with the findings arrived at.
20. For the foregoing reasons we are of the opinion that the High Court was not justified in rejecting the prayer for permitting a re-count. The judgment of the High Court is set aside. The case is remanded back to the High Court. The High Court shall permit a re-count and then decide the election petition after affording the parties an opportunity of hearing and in accordance with law. The costs shall abide the result.