NUR MAHAMMAD Vs. NEKIBUL HUSSAIN KHAN

JUDGEMENT

(1.) The Petitioner herein contested the election for membership of No. 2 Kalapani Zilla Parishad Constituency from No. 1 Mankachar Constituency, he being a candidate nominated by Indian National Congress. He was, on 29-01-2008, declared elected by defeating his nearest rival candidate, who is Respondent No. 1 herein, by a margin of 85 votes, the Respondent No. 1 having been nominated by All India United Democratic Front. The counting, in question, took place on 29-01-2008 and it was on that very day that the result was, as indicated hereinbefore, declared announcing the Petitioner herein as the returned candidate. Besides the Petitioner and the Respondent No. 1 herein, there were three more candidates in the election, wherein altogether 33,244 votes were polled.

(2.) By way of an election petition, made under Section 129 of the Assam Panchayat Act, 1994, read with the provisions of the Representation of the People Act, 1951, the Respondent No. 1 herein challenged the validity of the result of the said election, the grounds of challenge, in the election petition, being that the result of the election had been materially affected by improper counting of votes, cancellation of valid votes, acceptance of unsigned ballot papers in favour of the returned candidates, illegal rejection of postal ballots, votes missing from ballot boxes, excess ballots discovered from the ballot boxes during the counting and illegal counting by unauthorized persons. It was also the case of the election Petitioner-Respondent No. 1 herein that aggrieved by the irregularities and illegalities committed during the counting process, he had tried to submit a representation, in writing, with the request for recounting, to the returning officer, but the returning officer was not available and when he could be found by the election Petitioner (i.e., the Respondent No. 1), in the local circuit house, the returning officer was with the local Member of the Legislative Assembly and access to him was denied to the election Petitioner by the security personnel, whereupon the election Petitioner went to the residence of the Assistant Returning Officer and submitted his representation requesting for recounting. Though the Assistant Returning Officer received with great reluctance, the said representation, no action was ever taken on the said representation made by the election Petitioner.

(3.) By his election petition, the election Petitioner had sought for the following reliefs: