- (1.)The returned candidate in the election held for the office of member of No.4 Gabharu Anchalik Panchayat by the present petition has challenged the judgment dated 31.10.2009 passed by the Panchayat Election Tribunal, constituted under Section 127 of the Assam Panchayat Act, 1995 (in short the Act), directing recounting of votes of Table No.3 i.e. in respect of polling station No.3 Ka Madhya Barika Chuburi L.P. School, in Misc. (Election) Case No. 19/2008 registered on the basis of the election petition filed by the respondent No.6 questioning the election of the writ petitioner as member of the aforesaid Anchalik Panchayat.
(2.)The fact relevant for the purpose of the present case are that pursuant to the notification issued by the State Election Commission for holding the election, the writ petitioner, the respondent Nos.6 and 7 filed their nominations for election as member of No.4 Gabharu Anchalik Panchayat from No.3 Ushapur Gaon Panchayat. The election was accordingly held on 04.01.2008. After the counting of the votes was over, the result of the election was declared on 29.01.2008 declaring the writ petitioner as elected having secured 2761 votes. The formal notification relating to the result of the election was notified and published on 01.02.2008. The respondent No.6, who was nominated by Indian National Congress as candidate, after declaration of such result on 01.02.2008 objected such declaration contending inter alia that on 29.01.2008, after the counting was over a verbal declaration was made declaring him as elected, having secured maximum number of valid votes and also alleging anomalies in counting of votes. The State Election Commission was accordingly informed by the Deputy Commissioner about such objection, which however was not entertained on the advice of the State Election Commission on the ground that after declaration of the result, there cannot be any recounting of votes. The respondent No.6 then filed the election petition under Section 129(b) of the Act, which was registered and numbered as Misc. (Election) Petition No. 19/2008 before the Panchayat Election Tribunal at Tezpur, challenging the result of the election and praying for recounting of votes of Table No.3 i.e. in respect of polling station No.3 Ka Madhya Barika Chuburi L.P. School with a further prayer to declare the election of the writ petioner as void and also to declare the respondent No.6, election petitioner, as duly elected.
(3.)In the election petition filed by the respondent No.6, it has been alleged that after counting was over on 29.01.2008, the election petitioner was declared to have secured 2761 valid votes, but in the result notified and published on 01.02.2008 i.e. 3 days after such counting was over, the writ petitioner was shown to have secured 2761 valid votes and accordingly he was declared as elected. It has also been alleged that there were anomalies in counting of votes in Table No.3 of the aforesaid polling station, which is apparent from the ballot paper account submitted by the Presiding Officer, wherefrom it appears that total 537 ballot papers were used but in the result declared the total number of votes cast in respect of the said polling station was shown as 335. That apart according to the election petitioner though initially the counting official in the result of counting submitted in Form No. XXVIII(C) in respect of the said polling station shown the election petitioner to have secured 208 votes and by the writ petitioner 30 votes, the same were subsequently scored out and 33 and 222 votes were subsequently shown to have secured by the election petitioner and the writ petitioner respectively. It is also the contention of the election petitioner that the anomalies relating to the counting in respect of the said polling station is also evident from the said result of the counting as the counting official has recorded that he found 299 valid votes out of 235 votes found in the ballot box, which is nothing but absurd.