R.C. Lahoti, J. - (1.) General Elections 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 appellants 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:-tal votes polled 67,581 No. of Rejected votes 2,436 Jibontara Ghawar (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 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 tal 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 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. tal 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 p and the Botm ballot papers were in favour of the respondents, whereas the in-between 48 Nos. of ballot papers in the bundle of 50 belonged the petitioner and the entire bundle was counted in favour of the respondent. 3. The arrangement in the counting hall was far from satisfacry 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 in the counting hall and interfered in the smooth counting of votes affecting the orderly counting of votes. 4. 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."
(3.) It is not necessary 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 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 the Returning Officer, made out a case for recounting of votes on the ground 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 No. 115 Moran LAC in respect of polling station 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 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 4. If issue No. 4 is decided in favour of the election petitioner whether she is entitled be declared as elected No. 115 Moran Legislative Assembly Constituency 5. what other relief(s) the petitioner is entitled - ;