JIBONTARA GHATOWAR versus SARBANANDA SONOWAL AND ORS.

Citation: [2003] SUPP. 1 S.C.R. 152 · Decided: 09-05-2003 · Supreme Court of India · Bench: R.C. LAHOTI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
JIBONTARA GHATOWAR 
v. 
SARBANANDA SONOWAL AND ORS. 
MAY 9, 2003 
[R.C. LAHOTI AND B.N. AGRA WAL, JJ.] 
Election laws: 
Conduct of Election Rules, 1961: 
Rule 63-Recount of votes-Application-Statutory obligation on the 
returning officer-Held: Is to either allow the application to the extent to 
which the prayer may be genuine and reasonable or reject to the extent to 
which it may be found frivolous or unreasonable depending on the facts and 
D circumstances of the given case-Such decision is to be in writing giving 
reasons for the same. 
Rules 38 (/) and 56-Ballot Paper-Rejection on the ground of absence 
of signature of Presiding Officer and distinguishing mark-Held: Where such 
defect is caused by mistake or failure on the part of Presiding Officer rejection 
E of ballot paper not justified 
General Elections to the State Legislative Assembly were held. 824 
number of votes were rejected and excluded from counting as they did 
not bear signature of the presiding officer nor were they stamped with 
any distinguishing mark. Respondent No. I was declared elected, defeating 
F the nearest rival, the appellant. Appellant filed an election petition. It 
challenged the election of respondent No.1 praying for recount of ballot 
papers and rescrutiny of the rejected ballot papers. High Court held that 
the rejection of 824 votes was justified and rejected the petition. During 
the counting the appellant had filed applications seeking a recount setting 
G out the grounds but it did not receive the attention of the returning officer 
and remained undisposed of. Hence the present appeal. 
H 
Appellant contended that 824 number of votes could not have been 
excluded from the counting and serious error was committed at the 
counting by overlooking the rules. 
152 
.llBONTARA GHA TOW AR v. SARBANANDA SONOWAL 
153 
Respondent No. I contended that if this Court feels convinced of Rule A 
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 63 and then his satisfaction being subjected to judicial scrutiny B 
by the High Court whereafter only recount may be carried out. 
Allowing the appeal, the Court 
HELD:!. Rule 63 of the Conduct of Elections Rules, 1961 spells out 
a statutory obligation on the returning officer on an application being C 
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 recount 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 D 
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 recount 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 straight jacket formula. 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. In the instant case, there was 
E 
a clear breach of Rule 63.1161-D, E, F, GI 
F 
2.1. It is nobody's case that 824 ballot papers were spurious. The 
instant case is not a case of booth capturing or rigging. Jn 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, G 
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. 1164-D, EI 
2.2. Rules 38(1) and 56 of the Conduct of Elections Rules, 1961 shows 
that the obligation is cast on the polling officer to stamp with such H 
154 
SUPREME COURT 

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