2026:GAU-AS:10314 THE GAUHATI HIGH COURT [THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH] Writ Petition [C] No. 3094/0026 Toklima Khatun, W/o Hobibor Rahman, Village - Lezam, P.O. - Chunari, P.S. - Lakhipur, District - Goalpara, Assam. …………………..Petitioner VERSUS 1. The State of Assam, represented by the Principal Secretary to the Government of Assam, Panchayat & Rural Development Department, Dispur, Guwahati-6. 2. The Commissioner, Panchayat & Rural Development Department, Assam, Panjabari, Jurirpar Guwahati-37. 3. The Assam State Election Commission, represented by the Secretary, Panjabari, Guwahati - 37. 4. The District Commissioner, Goalpara, Assam. 5. The District Election Officer –cum- Returning Officer, Goalpara, P.O. Baladmari, P.S. & District - Goalpara, Assam. 6. Saleha Khatun, W/o Motior Rahman, Village - Lezam (KHA), P.O. - Chunari, P.S. - Lakhipur, District - Goalpara, Assam. …………………..Respondents GAHC010116892026 BEFORE HON’BLE MR. JUSTICE MANISH CHOUDHURY Advocates : Petitioner : Mr. A.M. Khan, Advocate Respondent nos. 1 & 2 : Mr. S. Dutta, Standing Counsel, Panchayat & Rural Development Department; Ms. P. Thapa, Advocate Respondent no. 3 : Mr. R. Dubey, Standing Counsel, State Election Commission; Ms. A.B. Kayastha, Advocate Respondent nos. 4 & 5 : Mr. J. Handique, Junior Government Advocate, Assam Respondent no. 6 : Mr. K. Kalita, Advocate Date on which judgment is reserved : N/A Date of pronouncement of judgment : 23.07.2026 Whether the pronouncement is of the Operative part of the judgment? : Whether the full judgment has been Pronounced ? : Yes JUDGMENT & ORDER [ORAL] Assail is made in this writ petition, preferred under Article 226 of the Constitution of India, to an Order dated 06.03.2026 passed by the Election Tribunal, Goalpara whereby the Election Tribunal has directed to produce the ballot papers of the election to Ward No. 8 Lezam [Kha] of No. 13 Chunari Gaon Panchayat under No. 2 Kamakhyaguri Anchalik Panchayat in the district of Goalpara, Assam. 2. The petitioner is a permanent resident of Village – Lezam and an elector from Ward No. 8 Lezam [Kha] of No. 13 Chunari Gaon Panchayat under No. 2 Kamakhyaguri Anchalik Panchayat, Goalpara, Assam. 3. The Assam State Election Commission [ASEC] by a Notification dated 02.04.2025 notified the Schedule of General Election of the Panchayats. As per the Notification, the General Election to the Panchayats in Assam were to be held in two phases. As per the Schedule, in so far as the election to Ward No. 13 Chunari Gaon Panchayat, the Election was to be held in the 2nd phase. As per the Schedule mentioned in the Notification, the date of filing nominations for the wards of No. 13 Chunari Gaon Panchayat was 11.04.2025 and the date of publication of the list of validly nominated candidates was 12.04.2025. The date of publication of the list of contesting candidates was mentioned as 17.04.2025 with the date of poll on 07.05.2025. 4. After the Notification, nominations were submitted to stand in the election for Ward Member from Ward No. 8 Lezam [Kha] of No. 13 Chunari Gaon Panchayat under No. 2 Kamakhyaguri Anchalik Panchayat. After scrutiny of the nomination papers and on the date of publication of list of contesting candidates three candidates - the petitioner, the respondent no. 6 and one Sajahan Ali Mondal - remained in the fray in Ward no. 8 Lezam [Kha]. The polling was held on 07.05.2025. The counting of ballot papers was held on 11.05.2025. After counting, the petitioner was found to have secured 360 nos. of votes as against 358 nos. of votes secured by the respondent no. 6. Sajahan Ali Mondal secured 60 nos. of votes. The Authorized Officer declared the results for Ward No. 8 Lezam [Kha] with the petitioner as the winning candidate in prescribed Form XVII[A] on 11.05.2025 as per sub-rule [7] of Rule 44 of the Assam Panchayat [Constitution] Rules, 1995. 5. Aggrieved by and dissatisfied with the manner of counting the ballot papers and the declaration of results, the respondent no. 6 has preferred an Election Petition under Section 127 of the Assam Panchayat Act, 1994, as amended, challenging the election of the petitioner as Ward Member of Ward No. 8 Lezam [Kha] in No. 13 Chunari Gaon Panchayat. On receipt of the said Election Petition, the same has been registered and numbered as Misc. [Election] no. 02/2025. Notices were, thereafter, issued to the respondents arraigned therein including the respondent no. 3, that is, the writ petitioner herein. On receipt of notices, the petitioner entered appearance represented by learned counsel. 6. In the Election Petition, the respondent no. 6 has contended that as per the Report of the Ballot Paper Account, Form VIII declared by the Presiding Officer on 07.05.2025 for the Gaon Panchayat Election, 2025 in respect of Ward No. 8 Lezam [Kha] of No. 13 Chunari Gaon Panchayat, there were total 960 ballot papers out of which 821 votes were polled. However in Form IX[A], the total votes polled were shown as 820. Thus, there was a difference of one vote in the final result sheet making it apparently clear that the counting was done in a lackadaisical manner. The respondent no. 6 has further contended that there were rejection of 40 nos. of ballot papers cast in her favour in an arbitrary manner. The counting officials rejected 42 nos. of polled votes out of which 40 nos. of votes cast in favour of the election petitioner were rejected whereas only 2 nos. of votes cast in favour of the respondent no. 3 were shown to be rejected. It is alleged that the Counting Officer had allowed some unauthorized persons to enter into the Counting Hall and those persons were involved in malpractices and acted in favour of the writ petitioner who has been arraigned as respondent no. 3 in the Election Petition. Allegation of adopting corrupt practices in counting by the agents of the respondent no. 3 in the Election Petition, that is, the petitioner and preparation of a false chart were also made in the Election Petition. Stating so, it has been contended that had those rejected votes been adjudged as valid votes then the result of the Election Petition would have been different. 7. I have heard Mr. A.M. Khan, learned counsel for the petitioner; Ms. P. Thapa, learned counsel on behalf of Mr. S. Dutta, learned Standing Counsel, Panchayat & Rural Development Department, Government of Assam for the respondent nos. 1 & 2; Ms. A.B. Kayastha, learned counsel on behalf of Mr. R. Dubey, learned Standing Counsel, ASEC for the respondent no. 3; Mr. J. Handique, learned Junior Government Advocate, Assam for the respondent nos. 4 & 5; and Mr. K. Kalita, learned counsel for the respondent no. 6, that is, election petitioner. 8. The votes secured by the contesting candidates for the election as Ward Member from Ward No. 8 Lezam [Kha] of No. 13 Chunari Gaon Panchayat were recorded in the prescribed Form XVII[A] in terms of sub-rule [7] of Rule 44 of the Assam Panchayat [Constitution] Rules, 1995. Rule 44 of the Assam Panchayat [Constitution] Rules, 1995 has provided for counting of votes and declaration of the results of election. The District Commissioner or the Officer authorized by the District Commissioner, as the case may be, has to declare the candidate who has received the highest number of votes in respect of every election, to have been elected to the particular office or seat and publish a notice at his office stating the name of the person who was declared as the Member of the Gaon Pancayat or Member of the Anchalik Panchayat or Member of the Zilla Parishad, as the case may be, and shall forward a copy of the same to the State Election Commissioner. As per the prescribed Form XVII[A], the petitioner secured 360 nos. of votes and the respondent no. 6 had secured 358 nos. of votes and it was for securing two more votes than the respondent no. 6, the petitioner was declared as the elected Member. It is not in dispute that the impugned Order dated 06.03.2026 has been passed prior to the stage of recording evidence of any of the parties. 9. On receipt of notice, all the respondents had submitted their written statements denying the allegations leveled by the election petitioner in the Election Petition. The respondent nos. 1 & 2 had contended that the entire counting process was carried out following due procedure and there was no discrepancy on their parts and if there was any objection with regard to counting of votes from the part of the election petitioner, the election petitioner should have raised the same during the counting of votes. 10. After taking note of only the contentions raised by the election petitioner in the Election Petition and of the respondent nos. 1 & 2 in their written statements, the impugned Order has been passed. The impugned Order is silent about the contentions raised by the petitioner as the respondent no. 3 in the Election Petition. 11. The relevant excerpts of the impugned Order dated 06.03.2026 are reproduced hereinbelow for ready reference :- Since the allegation of the petitioner is that the total number of votes shown in Form VIII and the Form IX-A do not tally each other; that the counting officer did not count the postal ballot and that the counting officer arbitrarily rejected the valid votes of the petitioner, as such, in my opinion, recounting of votes is necessary. Hence, the District Commissioner, Goalpara is directed to produce the ballot papers of the election of the Unit Member of Ward No. 8 Lezam [Kha], under 13 No. Chunari Gaon Panchayat, Ward No. 8 Lezam [Kha], falling within 2 Kamakhyabari Anchalik Panchayat, declared on 11.05.2025, before this court, under sealed trunks, to facilitate this court for recounting of votes, on or before the next date. Fix 18.03.2026. 12. The present writ petition is preferred raising the contention that at the time of passing of the impugned Order, the stage for a direction for re-counting of votes was not reached. But by the impugned Order, the Election Tribunal has not only directed to produce the ballot papers of the election in respect of Ward No. 8 Lezam [Kha] of No. 13 Chunari Gaon Panchayat under No. 2 Kamakhyaguri Anchalik Panchayat before the Election Tribunal under sealed trunks but has also decided to proceed for re-counting of votes on or before the next date, 18.03.2026, which is impermissible. 13. It is of relevance to mention that in the Election Petition filed under Section 127 of the Assam Panchayat Act, 1994, as amended, the prayers made are for re- counting of the ballots for election to Ward No. 8 Lezam [Kha] of No. 13 Chunari Gaon Panchayat and No. 2 Kamakhyaguri Anchalik Panchayat; and to set aside the election of the respondent no. 3 declaring it as void. The case pleaded by the election petitioner in the Election Petition has already been narrated, in brief, above. 14. The law regarding passing order as to re-counting of votes and the conditions to be satisfied prior thereto are well-settled. 15. In Suresh Prasad Yadav vs. Jai Prakash Mishra, [1975] 4 SCC 822, the Hon’ble Supreme Court while dealing with the principles of granting prayer for inspection of ballot papers and/or re-counting, has observed as under :- 5. […..] this Court has repeatedly said, that an order for inspection and re-count of the ballot papers cannot be made as a matter of the course. Page 8 of 11 The reason is twofold. Firstly, such an order affects the secrecy of the ballot which under the law is not to be lightly disturbed. Secondly, the Rules provide an elaborate procedure for counting of ballot papers. This procedure contains so many statutory checks and effective safeguards against mistakes and fraud in counting, that it can be called almost trickery foolproof. Although no hard-and-fast rule can be laid down, yet the broad guidelines, as discernible from the decisions of this Court, may be indicated thus. 6. The court would be justified in ordering a re-count of the ballot papers only where : [1] the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; [2] on the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and [3] the court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties. 16. The Hon’ble Supreme Court in Vadivelu vs. Sundaram and others, [2008] 8 SCC 355, has held that re-count of votes could be ordered very rarely and on specific allegation in the pleadings in the election petition that illegality or irregularity was committed while counting. The petitioner who seeks re-count should allege and prove that there was improper acceptance of invalid votes or improper rejection of valid votes. If only the court is satisfied about the truthfulness of the above allegation, it can order re-count of votes. Secrecy of ballot has always been considered sacrosanct in a democratic process of election and it cannot be disturbed lightly by bare allegations of illegality or irregularity in counting. But if it is proved that purity of elections has been tarnished and it has materially affected the result of the election whereby the defeated candidate is seriously prejudiced, the court can resort to re-count of votes under such circumstances to do justice between the parties. 17. In Udey Chand vs. Surat Singh and another, [2009] 10 SCC 170, the Hon’ble Supreme Court of India has considered as to when an order for re- counting is to be passed. In the said case, it was the election for the post of a Sarpanch of Gram Panchayat under the Haryana Panchayati Raj Act, 1994. The appellant [‘the returned candidate’, for short] was declared elected by a margin of four votes, having secured 881 votes as against 877 votes secured by his nearest rival, the respondent no. 1 [‘the election petitioner’, for short]. The election petitioner filed an election petition before the Election Tribunal with the prayer that the election of the returned candidate be set aside; re-counting of votes be ordered; and the election petitioner be declared as elected for the post of Sarpanch. The pleaded case of the election petitioner was that the Returning Officer, on account of political pressure and ill will, wrongly recorded a number of votes secured by the election petitioner and the returned candidate and declared the returned candidate as elected while wrongly cancelling a number of votes cast in favour of the election petitioner. The Election Tribunal directed re- counting of votes cast in the election for the post of Sarpanch. The High Court affirmed the said order for re-counting passed by the Election Tribunal. On an appeal being preferred before the Supreme Court against the order directing re- counting of votes, the appeal was allowed; the election petition, lacking material facts, was rejected; and consequently, the order passed by the Election Tribunal directing re-counting of votes was set aside. 17.1. In Udey Chand [supra], it has been observed that the salutary principles in the election law are that since an order for inspection and re-count of the ballot papers affects the secrecy of ballots, such an order cannot be made as a matter of course. In the entire election process, the secrecy of ballot is sacrosanct and inviolable except where strong prima facie circumstances to suspect the propriety and legality in the counting are made out. Before an Election Tribunal can permit scrutiny of ballot papers and order re-count, two basic requirements viz. :- [i] the election petition seeking re-count of the ballot papers must contain an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded; and [ii] on the basis of evidence adduced in support of the allegations, the Tribunal must be prima facie satisfied that in order to decide the dispute and to do complete and effectual justice between the parties, making of such an order is imperatively necessary; are to be satisfied. In Udey Chand [supra], a re-counting of ballot papers took place pursuant to the order of the Election Tribunal wherein the election petitioner was found to have secured 878 votes as against 873 votes secured by the returned candidate and as a consequence, the election petitioner was declared elected as the Sarpanch. In that context, the Supreme Court has held that there was no material on record on the basis whereof the Election Tribunal could have arrived at a positive finding as to how a prima facie case had been made out to order a re-count of the ballot papers and the order was held to be passed mechanically without any application of mind. It has been held that an order of re-count of votes has to stand or fall on the nature of the averments made in the election petition and the material produced in support thereof before the order of re-count is made and not from the result emanating from the re-count of votes. 18. The above propositions are followed in a decision of this Court in Apsara Begum vs. State of Assam and others, [2022] 5 GLR. 19. The provisions contained in the Assam Panchayat [Constitution] Rules, 1995, which are framed under the supervision of the Assam Panchayat Act, 1994, more particularly, Rule 44 have laid down a detail procedure of counting of votes and declaration of results of election. 20. From the afore-stated authorities, it is evident that the law is well-settled that an order for re-counting of votes can only be passed after evidence are led by the parties and the Election Tribunal on the basis of evidence adduced reaches a satisfaction that the allegations have prima facie established a good ground for believing that there is mistake or irregularity or illegality in counting. 21. As the impugned Order dated 06.03.2026 has been passed without recording any evidence, more specifically, before the stage of evidence, and merely on the bald allegations made by the respondent no. 3 as the election petitioner in the Election Petition, the impugned Order dated 06.03.2026 is not found sustainable in law and the same is liable to be set aside and quashed. The impugned Order dated 06.03.2026 is therefore, set aside and quashed, making the interim Order dated 11.06.2026 absolute. The writ petition stands accordingly, allowed. 22. It may be mentioned that the District Commissioner, Goalpara is to ensure preservation of the ballot papers for the election held for Ward No. 8 Lezam [Kha] to No. 13 Chunari Gaon Panchayat under No. 2 Kamakhyaguri Anchalik Panchayat for production as and when called for as per law. JUDGE Comparing Assistant Digitally signed by Rupam Basumatary Date: 2026.07.28 16:32:35 +05'30'