JAHANARA BEGUM Vs. LAYLA BEGUM

JUDGEMENT

(1.) Two orders passed on 03.07.2013 and 05.08.2013 in Misc. (Election) Case No. 21 of 2013 by the learned District Judge, Karimganj, as Panchayat Election Tribunal have been challenged in this writ petition by the returned candidate. By order dated 03.07.2013, the learned tribunal ordered for recounting of ballots in regard to election to the post of ward member of the No. 6 Lalarachak Ward under No. 60 Jatkapan-Borkatpur Gaon Panchayat in Karimganj district and by order dated 05.08.2013, election of the returned candidate as ward member in the said ward was set aside declaring election petitioner elected in her place on the basis of the result of the re-counting. Election to Gaon Panchayats in the district of Karimganj was held on 12.02.2013. The electors of Jatkapan Borkatpur Gaon Panchayat being one of the Gaon Panchayats of the said district also went on poll to elect their President, the A.P. Member and the ward members. The writ petitioner was a candidate for the post of ward member in No. 6, Lalarchak ward of the said Gaon Panchayat. There were altogether 8 candidates on the fray for the said post. After counting was over, it was found that the petitioner and the respondent No. 1 both polled 71 votes each leaving the 6 other candidates behind. Applying the Rule 45 of the Assam Panchayat (Constitution) Rules, 1995 lot was drawn by toss of a coin by the District Returning Officer and luck favoured the election petitioner. Consequently, he was declared elected on 20.02.2013 by the District Returning Officer as ward Member of Lalarchak ward. The petitioner was administered oath on 26.3.2013 and thereafter, she was elected as Vice-President of the Gaon Panchayat on the same day by popular mandate of the members in the first meeting of the Gaon Panchayat. She has been discharging function as vice president of the Gaon Panchayat since then.

(2.) In the meantime, on 22.2.2013 the respondent No. 1 filed an election petition under Section 129 of the Assam Panchayat Act, 1994, before the learned District Judge, Karimganj, praying for necessary orders for recounting of all the ballots of the said ward member election and after counting to declare that the election petitioner to have duly elected as ward Member of the Lalarchak ward. Prayer was also made for setting aside election of the petitioner. The said election petition was numbered as Election Petition No. 21 of 2013. All the candidates who participated in the election for the post of the member of the said ward were made parties apart from the State of Assam, the District Returning Officer and the Authorized Officer. In pargraph-3 & 6 of the election petition, the petitioner disclosed the grounds for recounting. In Paragraph-3, it is pleaded that the Assistant Returning Officer (for short, 'the ARO') of the counting hall while preparing the result sheet wrongly made entry of one vote out of 72 votes polled by the election petitioner in favour of the returned candidate to make their tally equal although in reality the election petitioner had secured 72 votes and the returned candidate had secured only 70 votes. In paragraph - 6 it was pleaded that the election petitioner came to know after having seen the result sheet that there were so many anomalies in the counting. She noticed that her one vote was reduced and the same was added to the account of the returned candidate. She also claimed to have found that the total votes polled in the center was only 377 and not 443 and that there was no rejected vote although actually as many as 66 ballots were rejected. The election petitioner also denied that there was not any toss at all and complained that the official respondent entered into collusion with the returned candidate for preparing the result sheet illegally and there by declaring the returned candidate as elected member of the ward.

(3.) The returned candidate (writ petitioner herein) on being summoned submitted her written statement denying the allegations in its entirety. The allegations that the election petitioner had polled 72 votes and the returned candidates polled only 70 votes and that the ARO while preparing the result sheet wrongly made entry of 1 vote of the writ petitioner in the account of the returned candidate to show that both of them secured 71 votes, were specifically denied in paragraph-7 of the written statement. The allegation that there was no toss is also specifically denied in Paragraph-10 of the written statement.