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Judgment
Heard the learned Counsel for the Petitioner, Mr. A.M. Mazumdar. Heard also Mr. A.K. Phukan, the learned Additional Senior Govt. Advocate, Assam.
The Petitioner contested the election for Membership to the North Cachar Hills Autonomous District Council from No. 13 Hajadisa Constituency. The poll took place on 16th November, 1987 and counting took place on 18th November 1987 from 8 A.M. and was completed the same day. The counting of votes of No. 13. Hajadisa Constituency started at about 2 P.M. and was completed at about 5 P.M. on the same day. Immediately after the counting was over the Petitioner submitted an application under Rule 165 of the Assam Autonomous Districts (Constitution of District Councils) Rules, 1951, hereinafter referred to as ''the Rules'', to the Returning Officer stating therein that he was not satisfied with the counting of votes and that there was every doubt of mistake in counting and he prayed for recounting of the votes. The Petitioner''s grievance is that without passing any order on his application for recounting the Returning officer proceeded to declare that Respondent No. 4 Sri Doitolal Thaosen was elected. Mr. Mazumdar submits that under the proviso to Rule 165(1) it was duty of the Returning officer to pass an order on his application are proceeding to declare the result. Rule 165(1) may be evidently quoted for reference:
165 (1). When the counting of votes has been completed, the Returning Officer shall forthwith declare the candidate or candidates to whom the largest number of valid votes has been given to be elected:
Provided that upon the application of any candidate or his election agent or his duly authorised representative a recount shall be made before the Returning Officer makes the declaration, but the Returning Officer may reject any such application as may appear to him to be frivolous, recording at the same time the grounds for such rejection.
Under the above proviso upon the application of a can rate or his election agent or his duly authorised representative account shall be made before the Returning Officer makes the declaration, but he may reject the application if it appears to (sic) to be frivolous, recording the grounds of rejection. As the Petitioners ground is that his application for recounting was her allowed nor rejected giving any grounds, there would be (sic) violation of this Rule.
The question then arises as to what is the appropriately available to the Petitioner. Chapter VIII of the Rules is with decision of doubts and disputes as to the validity of an (sic)tion. Rule 179 thereunder deals with election petition and "save as provided in Rule 16 or in Rule 127, no election shall be called in question except by an election petition present in accordance with the provisions of this Chapter". Rule deals with vacation of seats by disqualified members. Rule deals with effect of disqualification. Therefore, neither of above two excepted Rules is relevant in this case. After result has been declared if the Petitioner''s application is to be allowed the result of the election has to be called question. Under Rule 179 that cannot be done expect by an action Petition presented in accordance with the provisions of (sic)pter VIII Mr. Mazumdar, however, expresses doubt as to (sic)ther the failure on the part of the Returning Officer to (sic)se of the Petitioner''s application for recounting in accordance the Rules would be a proper ground for declaring the election void in an election petition. Rule 190 of the Rules deals with grounds for declaring election void. Clause (c) of Sub-rule (1) thereof is to the following effect:
190 (1) Subject to the provisions of this rule, if in the opinion of the Commissioner
... ... ...
(c) the result of the election has been materially affected by the improper acceptance or rejection of any nomination, or by reason of the fact that any person nominated was not qualified or was disqualified for election, or by the improper reception or refusal of a vote, or by the reception of any vote which is void, or by any non-compliance with the provisions of the rules relating to the election, or by any mistake in the use of any prescribed form;
... ... ...
the election of the returned candidate shall be void.
From the above provision it would appear that if in the opinion of the Commissioner the result of the election has been materially affected by any noncompliance with the provisions of the rules relating to the election, that would be a ground for declaring the election void, There is no doubt that Rule 165 is a Rule relating to the election and violation of the proviso to Rule 165 would amount to non-compliance with the provisions of the Rules relating to the election. There does not, therefore appear to be any reasonable ground for not treating this to be a ground for declaring the election void if it is proved according to law by the election Petitioner in a competent election petition. As the Petitioner has not filed any election petition as yet, we do not consider it appropriate at this stage to express any opinion on this question of law.
We accordingly leave the Petitioner to proceed in accordance with the Rules to call in question the election from No. 13 Hajadisa Constituency by means of election petition, if he is so advised. It is neediness to mention that should the Petitioner be aggrieved by the result of the election petition it will be open for him to pursue his further remedies in accordance with law.
In the result, with the above observations, this petition is disposed of.