Gauhati High Court
Kalyan Kumar Gogoi vs Ashutosh Agnihotri And Anr. on 12 April, 2007
Equivalent citations: 2007(4)GLT374
JUDGMENT B.P. Katakey, J.
1. A public notice of intended election was published on 04.03.2006 by the Returning Officer of No. 116 Dibmgarh Legislative Assembly Constituency, inviting nominations of candidates for such election as required under Section 31 of the Representation of the People Act, 1951 read with Rule 3 of Conduct of Election Rules 1961, specifying the place at which the nomination papers are to be delivered, with the following schedule.
(i) Issue of notification : 10.03.2006.
(ii) Last date for making nomination:
: 17.03.2006.
(iii) Security of nomination papers : 18.03.2006.
(iv) Last date for withdrawal of candida-
ture : 20.03.2006.
(v) Date of poll : 03.04.2006.
(vi) Counting of votes : 11.05.2006.
(vii) Date before which election process
shall be completed : 20.05.2006.
2. The election petitioner, the approved candidate of Indian National Congress; the respondent No. 2, the approved candidate of Bharatiya Janata Party as well as 6 other persons filed their nomination papers to contest from the said constituency. Upon scrutiny, the nomination papers submitted by one candidate Sri Banikanta Gogoi was rejected declaring his nomination as invalid, the same being not in order and the nomination papers submitted by the remaining 7 candidates were found to be in order and declared valid by the Returning Officer. Polling was thus held on 03.04.2006 and after counting of votes on 11.05.2006, result was declared declaring the respondent No. 2 elected from the said No. 116 Dibmgarh Legislative Assembly Constituency, he having secured highest number of valid votes polled. The respondent No. 2/returned candidate secured 28,424 and the election petitioner secured 28,249 votes out of the total valid votes of 79, 736.
3. The election petitioner has challenged the result of the said election, by presenting this election petition under Section 80, 80 A and 81 of the Representation of the People Act, 1951 (in short, "the Act"), dated 11.05.2006 declaring the respondent No. 2 elected from the said No. 116 Dibrugarh Legislative Assembly Constituency, on the ground that on the day of poll, i.e. on 03.04.2006, one notified polling station being No. 124 was not set up in the notified school, namely Manik Dutta L.P. School (Madhya) and instead was set up in another school, namely Chiring Gaon Railway Colony L.P. School, without notifying the same and, thereafter, shifted to the notified school, namely Manik Dutta L.P. School (Madhya), without issuing any notification and without even intimating the election agents as well as other voters thereby violating the provisions of Section 25 and 58 of the Act, as well as the Conduct of Election Rules, 1961 (in short, "the 1961 Rules"), framed thereunder, thus depriving a large number of voters from casting their votes in the said polling station and consequently materially affecting the result of the election.
4. In the election petition, though the Returning Officer is not a necessary party, he has been added as respondent No. 1, apart from the returned candidate as respondent No. 2. The respondents, on receipt of the summons entered appearance. The respondent No. 1, i.e. the Returning Officer, filed an affidavit-in-opposition, though there is no scope for filing such affidavit, however, on the prayer made and not being objected to by the election petitioner, as well as by the respondent No. 2, the said affidavit-in-opposition has been treated as the written statement and taken on record. The respondent No. 2/returned candidate also filed his written statement. In the said written statements filed by the Returning Officer as well as by the returned candidate, it has been contended that as both the schools, namely Manik Dutta L.P. School (Madhya) and Chiring Gaon Railway Colony L.P. School, are situated in close proximity, the election officials on the day prior to the date of poll wrongly set up the polling station in Chiring Gaon Railway Colony L.P. School instead of the notified L.P. School, namely Manik Dutta L.P. School (Madhya), which, during the continuance of poll, having been detected by the observer of the election commission (in short "central observer"), the polling station was restored to its notified location at Manik Dutta L.P. School (Madhya) at about 9.45 A.M. after observing all formalities and polling started in the said polling station at 9.55 A.M. It has further been contended that because of such wrong set up of polling station as well as shifting of the same to Manik Dutta L.P. School (Madhya), no voters were deprived from casting their votes in the said polling station and that the election petitioner never prior to the declaration of the result, i.e. on 11.05.2006, raised any objection about such initial setting up of the polling station and subsequent shifting and for the first time on 12.05.2006 filed an application before the Returning Officer claiming re-poll at No. 124 polling station by contending that the said polling station was wrongly set up in Chiring Gaon Railway Colony L.P. School where the voters casted their votes from 7 A.M. to 12.45 P.M. and, thereafter, it was shifted to the notified school, namely Manik Dutta L.P. School (Madhya), without observing the required formality such as sealing of Electronic Voting Machine (EVM) and other materials.
5. On the basis of the pleadings of the parties and upon hearing the learned Counsel, the following issues were framed:
1. Whether the Election Petition is maintainable in present form and whether it has been filed, presented and verified in accordance with law?
2. Whether the Election Petition is liable to be dismissed for mis-joinder of the parties, i.e. respondent No. 1?
3. Whether there is non compliance of provision of Section 25 and 58 of the Representation of People Act, 1951 and the Rules framed thereunder relating to shifting of polling station from one place to another and, if so, whether it has vitiated and materially affected the result of the election so far as it concerns the returned candidate?
4. Whether due to the sudden change and shifting of polling stations a large number of voters were deprived of their right to cast their votes, which has materially affected the result of the election of the returned candidate/respondent No. 2?
5. Whether the election petitioner is entitled to the relief claimed in the Election Petition?
6. During the course of trial, certain original documents were called for from the custody of the Returning Officer, as prayed for, by the election petitioner as well as by the returned candidate, which were produced by the Returning Officer pursuant to the order passed by this Court. The election petitioner though filed evidence in affidavit of 20 (twenty) witnesses, he produced only 11 witnesses for cross-examination, namely the election petitioner (PW-1), Shri Dugdha Ch. Gogoi, the election agent of the election petitioner (PW-2), Shri Puspa Nath Sharma (PW-3), Shri Durlabh Kalita (PW-4), Shri Prasanta Dutta (PW-5), Shri Pranjal Bora (PW-6), Smti Baijanti Chubey (PW-7), Smti Subarna Bora (PW-8), Smti Pratima Bora (PW-9), Shri Bikash Kr. Chubey (PW-10) and Shri Deep Rabi Das (PW-11), who were duly cross-examined by the respondent No. 2/returned candidate. None of these witnesses, however, were cross-examined by the respondent No. 1. The election petitioner also examined the Returning Officer of No. 116 Dibrugarh Legislative Assembly Constituency, namely Shri Ashutosh Agnihotri (PW-12), who was also cross-examined by the respondent No. 2/retumed candidate. Since the election petitioner did not examine any other person as his witness, the evidence of the election petitioner was closed vide order dated 22.02.2007. Consequently, the evidence-in-affidavit of the remaining 9 (nine) persons filed by the election petitioner, cannot be treated as evidence, in view of their non-production for cross-examination. After closure of the evidences of the election petitioner, the evidence on affidavit of 3 (three) witnesses of the respondent No. 2/returned candidate, including himself, were filed and they were duly cross-examined. The respondent No. 2 in support of his case as reflected in the written statement examined 7 (seven) witnesses, which includes the non-official witnesses, who have filed their evidence-on-affidavit, namely the respondent No. 2 himself (RW-1), Smti Sabitri Das (RW-2), who was the polling agent of the respondent No. 2 in No. 124 polling station and Shri Mantu Das (RW-3), a BJP worker, as well as four official witnesses namely, Sri Durga Prasad Gogoi, the Presiding Officer of Polling Station No. 124, (RW-4), Sri Partha Pratim Bairagi, the Constituency Magistrate, (RW-5), and Sri Neihu C. Thur, the Observer appointed by the Election Commission (in short, "the Central Observer") (RW-6), who were duly cross-examined by the election petitioner. No witness was examined by the respondent No. 1, who, however, was examined by the election petitioner as PW-12.
7. During the course of the trial the following documents were exhibited:
Ext. 1 : Election petition filed by the election petitioner.
Ext. 2: Challan depositing a sum of Rs. 2,000/- (Rupees two thousand) by the election petitioner.
Ext. 3 : Carbon copy of the complaint dated 3.4.2006 of Dugdha Chandra Gogoi, PW 2, Election Agent of the election petitioner (under objection from respondent No. 2) Ext. 4: Application filed by the election petitioner before the Deputy Commissioner-cum-Returning Officer, 116 Dibrugarh Legislative Assembly Constituency, dated 12.5.2006.
Ext. 5 : Reply of the Deputy Commissioner-cum-District Election Officer, Dibrugarh dated 20.5.2006 address to the election petitioner in reply to his complaint-dated 12.5.2006.
Ext. A: Certificate issued by Central Observer, Shir Neihu C. Thur, IAS, for No. 116 Dibrugarh Legislative Assembly Constituency, R.W. 6.
Ext. B: Written Statement (affidavit-in-opposition) filed by respondent No. 1, the Returning Officer.
Ext. C: List of Returning Officer, Assistant Returning Officers, in respect of No. 116 Dibrugarh Legislative Assembly Constituency.
Ext. D: List of PollingAgents of Polling Station No. 124 under No. 11-6 Dibrugarh Legislative Assembly Constituency.
Ext. E: Application in Form 10 submitted by the Election Agent of the respondent No. 2 for appointment of Smti Sabitri Das as Polling Agent in respect of No. 124 Polling Station.
Ext. F: Application in Form 10 submitted by the Election Agent of respondent No. 2 for appointment of Shri Rakesh Singh as Polling Agent in respect of No. 124 Polling Station.
Ext. G : Voters list of 2005 in respect of No. 116 Dibrugarh Legislative Assembly Constituency.
Ext. H: List of Polling Stations of 2006 in respect of No. 116 Dibrugarh Legislative Assembly Constituency.
Ext. I: Writing given by the Polling Agents dated 3.4.06 of the election petitioner, the respondent No. 2 and of the candidate of Assam Gana Parishad consenting to shifting of Polling Station.
Ext. J: Diary dated 3.4.2006 of Presiding Officer in respect of No. 124 Polling Station of No. 116 Dibrugarh Legislative Assembly Constituency.
Ext. K: Marked copy of the voters list in respect of Polling Station No. 124.
Ext. L: Final result sheet dated 11/5/06 in respect of No. 116 Dibrugarh Legislative Assembly Constituency.
Ext. M: Account of votes recorded in Form No. 17 C, in respect of Polling Station No. 124.
Ext. N: Application dated 8/8/06 filed by respondent No. 2 before the Circle Officer, East Circle Dibrugarh, for measurement of distance between Manik Dutta L.P. School and Chiringgaon Railway Colony L.P. School and to furnish a lay out of the area.
Ext. O: Lay out of area showing the boundary of Manik Dutta L.P. School as well as Chiringgaon Railway Colony L.P. School and the distance between in two schools.
Ext. P: List of persons appointed for conducting election in No. 116 Dibrugarh Legislative Assembly Constituency.
Ext. Q: Appointment letter of Shri Santosh Das as Polling Agent of the election petitioner in respect of No. 124 Polling Station.
Ext R: Appointment letter of Shri Sidha Nanda Sensua as Polling Agent of the election petitioner in respect of No. 124 Polling Station.
8. Heard Mr. A. Mazumdar, the learned senior Counsel for the election petitioner as well as Mr. A.K. Bhattacharyya, the learned senior Counsel for the respondent No. 2/returned candidate. None appears to argue the case on behalf of the respondent No. 1. Perused the pleadings of the parties and the evidences on record, both oral and documentary.
Submissions of the Learned Counsel for the Parties:
9. Mr. Mazumdar, learned senior Counsel for the election petitioner has contended that the main issues in the present election petition are the issue nos. 3 and 4. According to the learned senior Counsel it is evident from the pleadings of the parties and also the deposition of the witnesses, more particularly the evidence of the Returning Officer (PW-12), Presiding Officer (RW-4), Constituency Magistrate (RW-5) and the Central Observer (RW-6) that the Polling Station No. 124 was not set up in the notified place i.e. Manik Dutta L.P. School (Madhya) notified under Section 25 of the Act. Referring to the deposition of those witnesses Mr. Mazumdar has further submitted that the said official witnesses have in their deposition admitted that no notification or order was issued before setting up the polling station in the non-notified place as well as prior to shifting to the notified place, subsequently and without informing the voters. Mr. Mazumdar referring to the provision of Section 25 of the Act further submits that as the Polling stations are to be notified as per direction of the Election Commission, no poll can he held in a place other than the notified place and in the instant case according the learned senior Counsel, it is an admitted position of fact that No. 124 Polling Station was not set up in the notified place but was set up in another school where polling started at 7.00 a.m. and continued at least up to 9.45 p.m. on 03.04.2006. Such action, according to the learned senior Counsel amounts to change in the location of polling station without the approval of the Election Commission, thereby violates the provision of Section 25 of the Act as well as the guidelines issued by the Election Commission to the returning officer, not to change the location of the polling station. The learned senior Counsel further contends that such polling in the non-notified place cannot be the valid poll and therefore the entire polling in respect of No. 124 Polling Station is vitiated. It is, therefore, submitted that the infraction of provision of Section 25 of the Act has been established. It has further been submitted by Mr. Mazumdar that after shifting of the Polling Station in question to the notified place i.e. Manik Dutta L.P. School (Madhya), the polling re-started in that place i.e. in the notified place, and since there is no separate account maintained about the vote polls in the non-notified place, the entire polling in respect of 124 Polling Station has to be declared illegal and the re-poll in respect of the said Polling Station is to be ordered.
10. Referring to the provision of Section 57 of the Act, it has further been submitted by Mr. Mazumdar that since the Polling Station was initially set up in a non-notified place, which itself is the infraction of the provision of the Act, the Presiding Officer of Polling Station No. 124 or the Returning Officer had no alternative but to adjourn the poll to a date to be notified later and thereafter to re-commence the poll after the date is fixed with previous approval of the Election Officer, which having not been done in the instant case, violates the provisions of Section 57 of the Act.
11. Mr. Mazumdar, referring to the provision of Section 58(1)(b) of the Act has further submitted that as the error in setting up of the Polling Station has been committed, the Returning Officer ought to have informed the Election Commission about such error/irregularities in procedure, so that the Election Com-mission in exercise of power conferred by Section 58(2) of the said Act could have pass appropriate order. According to the learned senior Counsel, the Presiding Officer as well as the Returning Officer, therefore, have violated the provisions of Section 58 of the Act.
12. Mr. Mazumdar has further contended that even if the version of the respondents that the polling re-started in the notified place at 9.55 a.m., after shifting, is taken to be correct, then also the polling in that Polling Station is vitiated, because of non-starting of the poll at the time fixed by the Election Commission in the notified Polling Station i.e. at 7.00 a.m. as the same violates the provision of Section 56 of the Act and Rule 15 of the 1961 Rules.
13. Mr. Mazumdar, learned senior Counsel referring to Rule 31 of the 1961 Rules submits that the presiding officer of a polling station is required to make certain arrangements as stipulated in the said Rule before conducting the poll in a particular polling station and in the instant case in the Polling Station No. 124, after it was shifted to the notified place i.e. Manik Dutta LP School (Madhya), no such arrangement was made and thereby violating the provision of Rule 31 of the 1961 Rules. It has further been submitted that as the poll conducted in the non notified place i.e. Chiringaon Railway LP school cannot held to be valid poll and as the polling in notified place after the polling station was shifted having been conducted without making any arrangement as required under Rule 31 of the 1961 Rules, there was no poll at all in the Polling Station No. 124 in the eye of law and as such, it becomes an incomplete election. It has further been submitted that since the number of voters registered in the said polling station is 1005 and the overall percentage of polling in the constituency is 67.23% and the difference of votes polled by the returned candidate and the election petitioner being only 175, such violation of the provisions of the Act and the 1961 Rules has materially affected the result of the election. Mr. Mazumdar further submits that as there was no voting in the eye of law, in respect of polling station No. 124, presumption is to be drawn that it has materially affected the result of the election. Referring to the decision of the Apex Court in Santosh Yaclav v. Narender Singh reported , the learned senior Counsel submits that such presumption can be drawn in the case in hand also.
14. Placing reliance on the evidences of the witnesses examined by the election petitioner, it has further been submitted that it is evident from the deposition of the witnesses that a large number of persons could not cast their votes because of such setting up of the Polling Station in a wrong place i.e. in non-notified place and subsequent shifting to the notified place, thereby materially affecting the result of the election of the returned candidate. It has further been submitted that there being no separate accounts of vote polled maintained, while the Polling Station was set up in Chiringgaon Railway Colony L.P. School, having regard to the fact that only 572 numbers of votes were polled in the Polling Station, against the total registered voters of 1005, both when it was in the non-notified place as well as in the notified place and also keeping in view the difference of votes polled by the election petitioner as well as the returned candidate (Respondent No. 2), which was 175, the result of the election of the returned candidate must has been materially affected. Mr. Mazumdar referring to the complaint dated 03.04.2006 (Ext. 3) has contended that infraction of the provision of the Act was immediately brought to the notice of the Returning Officer.
15. The learned senior Counsel, therefore, submits that election of the returned candidate maybe set aside by declaring the polling in respect of No. 124 Polling Station void and the Election Commission may be directed to conduct re-poll in respect of the said Polling Station and to declare result of the election in respect of No. 116 Dibrugarh Legislative Assembly Constituency after taking into account the votes polled in such Polling Station after re-poll. Mr. Mazumdar in support of his submission has placed reliance on the judgment passed in Tazuddin Ahmed v. Dhaniram Talukdar AIR 1959 Assam 128, Bulia Ram v. Choudhury Multan Singh AIR 1960 Pun. 45 and on an Apex Court judgment in Hari Bishnu Kamath v. Ahmed Ishaque and Ors. .
16. The learned Senior Counsel for the respondent No. 2/returned candidate, Mr. Bhattacharyya, has at the outset submitted that the issue No. 1 and 2 are not pressed by the returned candidate.
17. Refuting the arguments of the learned Senior Counsel for the Election petitioner, Mr. Bhattacharyya, learned Senior Counsel appearing for the respondent No. 2/returned candidate has submitted that the High Court under Section 100 (1)(d)(iv) of the Act can declare the election of a returned candidate void must prove non-compliance of the provision of the Constitution or the Act or any rule or orders made thereunder and that such non-compliance has materially affected the result of the election of the returned candidate. According to the learned Senior Counsel, the election petitioner, though in the election petition has pleaded that there is non-compliance/violation of the provisions of the Act and the 1961 Rules, has failed to substantiate such plea and hence the election petition is liable to be dismissed. Referring to Section 25 of the Act and Ext. J document, being list of notified polling station, Mr. Bhattacharyya has further submitted that there is no violation of Section 25 of the Act as admittedly Manik Dutta LP School (Madhya) was notified for setting up of the Polling Station No. 124 in respect of No. 116 Legislative Assembly Constituency, election of which was held in the year 2006. The learned senior Counsel has further submitted that since it is not the case of the election petitioner that the polling station, as required to be notified under Section 25 has not been notified, there is no infraction of Section 25 of the said Act.
18. Referring to Clause 9.4 of the Handbook on which the learned Senior Counsel has placed reliance to drive home the plea that there was infraction of the provisions of the Act because of setting up of the polling station in a non notified place, Mr. Bhattacharyya has submitted that under Clause 9.4 of the said guidelines the district election officer/returning officer has been asked not to make any change in the location of the polling station already approved by the Commission, without its prior approval. According to Mr. Bhattacharyya in the present case, the district election officer or the returning officer did not make any change in the location of the polling station already approved by the Election Commission but the polling station was wrongly set up in a non notified place, by mistake, which was rectified on detection by shifting the polling station to the notified place as instructed by the Central Observer. Therefore, according to Mr. Bhattacharyya there is even no violation of Clause 9.4 of such guidelines issued by the Election Commission.
19. Referring to the pleadings in the election petition, it has further been submitted by the learned Senior Counsel that there is absolutely no pleadings in the election petition regarding the violation of the provisions of Sec-tion 57 of the Act. In any case, Mr. Bhattacharyya submits that the pleadings in the election petition does not disclose "any other sufficient cause" for adjournment of the poll by the Presiding Officer in exercise of the power conferred by Section 57 of the Act, as setting up of the polling station in a non notified place cannot constitute 'sufficient cause' within the meaning of Section 57 of the said Act. Relying on the decision of the Madras High Court in P.S. Chellathurai v. K.P. Gopal and Anr. reported in 1949 ELR 379, it has further been submitted by the learned senior Counsel that the provisions of Section 57 being directory and the terminology 'any other sufficient cause' being relatable to riot, open violence or natural calamity, there is no question of exercising such power by the presiding officer or by the returning officer concerned to adjourned the poll on the grounds of setting up of the polling station in a non notified place or the subsequent shifting to the notified place.
20. Mr. Bhattacharyya has further submitted that Section 58 of the Act being in respect of the steps required to be taken by the returning officer in case of destruction etc., of the ballot boxes or Electronic Voting Machine (EVM), Clause (b) of Sub Section (1) of Section 58 is also not attracted in the present case, as it is not the case of the election petitioner that there is any error or irregularity in the EVM. Mr. Bhattacharyya has further submitted that even assuming that any error or irregularity in conducting the election, even if it is not relating to the ballot boxes or the EVM, comes within the purview of Section 58(1)(b) of the Act, the returning officer is not bound to report any error or irregularity to the Election Commission, unless such error or irregularity is likely to vitiate the poll. According to Mr. Bhattacharyya the election petitioner has miserably failed to prove that the setting up of the polling station in a wrong place and subsequently shifting to the notified place, likely to vitiate the poll, so as to report the matter to the Election Commission by the returning officer, in exercise of power conferred by Section 58(1)(b). Mr. Bhattacharyya submits that in the instant case the polling station was set up by mistake in a non notified place where polling took place for about two and a half hour in the morning and thereafter between 9.30 to 9.45 A.M. the polling station was shifted to the notified place i.e. Manik Dutta LP School (Madhya) as instructed by the Central Observer and such mistake being bonafide mistake does not amount to no-compliance or violation of any of the provisions of the Act or the Rules or the orders made thereunder.
21. Countering the arguments of the learned Senior Counsel for the election petitioner that as the polling in the notified polling station was not held for the hours fixed by Election Commission, it amounts to infraction of Section 56 of the Act and Rule 15 of the 1961 Rules, and, therefore, constitutes the ground for setting aside the election of the returned candidate under Section 100(1)(d)(iv), Mr. Bhattacharyya has submitted that there is no infraction of Section 56 as well as Rule 15, as, admittedly the polling in respect of the polling station No. 124 started at 7 AM and concluded at 4 PM i.e. for the hours fixed by the Election Commission, may be part of it in a non notified place and the major part in the notified place. According to the learned Senior Counsel Section 56 of the Act does not provide that the hours fixed by the Election Commission for polling is to be in a particular place. It has further been submitted by the learned Senior Counsel that the hours fixed has to be reckoned from the time of starting till the conclusion of the poll and, therefore, the polling having been started in a non notified place at 7 AM, which was subsequently shifted to the notified place, where it concluded at 4 PM, there is no infraction of Section 56 of the Act, that too, when such mistake in setting up of the polling station and subsequent shifting was not objected to by any of the parties at the relevant time.
22. Mr. Bhattacharyya further submits that it is evident from the diary of the presiding officer, which has been exhibited as Ext. J, that between 7 AM to 9 AM on the date of polling i.e. 3.4.2006, when the polling station was in the non notified place, only 76 votes were polled and hence, in any case, even if there is infraction of provisions of the Act or the Rules framed thereunder, it has not materially affected the result of the returned candidate, the difference of votes polled by the election petitioner and the returned candidate being 175. It has further been submitted that though it is not required to examine as many voters as the difference of votes polled, the election petitioner, however, by adducing cogent and reliable evidence has to prove that significant number of voters could not cast their vote because of setting up of the polling station in a non-notified place, so as to materially affect the result of the election, which according to Mr. Bhattacharjee, the election petitioner has failed to do.
23. Referring to the evidence on affidavit filed by the witnesses of the election petitioner, namely, PW-2 to PW-11, Mr. Bhattacharjee has further submitted that as the oath on the said affidavits were administered by the Additional Deputy Commissioner and not by the Oath Commissioner of the High Court, before which the election petition has been filed, such affidavits are not admissible in evidence. That apart, according to the learned senior Counsel, the evidence of PW 5 to PW 11 cannot be accepted as during cross-examination it has been admitted that they do not know what has been written in the affidavit and also admitted the discrepancies in such affidavits. Therefore, such evidence cannot be taken into consideration to arrive at a finding regarding infraction of the provision of the Act and the Rules framed thereunder as well as regarding materially affecting the result of the election. Mr. Bhattacharjee in support of his contention has placed reliance on the decision of the Apex Court in Chhotan Prasad Singh v. Hari Dusadh and Ors. .
24. Mr. Bhattacharjee further argues that even assuming the affidavit of those witnesses are admissible in evidence than also there is absolutely no evidence to prove that the infraction of any of the provision of the Act or the Rules framed thereunder has materially affected the result of the election. Referring to the deposition of the witnesses of the election petitioner, Mr. Bhattacharjee has further submitted that though the election petitioner has admitted setting up of the booth by Congress Party and manning the same by 10 to 15 persons near the polling station being Manik Dutta L.P. School (Madhya), he did not examine any person, who was present in the booth on the date of poll, to prove that many persons have left the place without casting their votes, on the other hand, the returned candidate/respondent No. 2 by examining RW-3, Sri Mantu Das, who was present in the booth set up by BJP near Manik Dutta L.P School (Madhya) and was present all along, has proved that in fact the persons manning the booth belonging to the Congress Party knew about the setting up of the polling station in Chirring Gaon Railway Colony L.P. School and such Congress worker manning such booth in fact led the voters, who came to cast their votes in Manik Dutta L.P. School (Madhya), to Chirring Gaon Railway Colony L.P. School for casting their votes. According to the learned Sr. Counsel, it has come out in the evidence of the Returning Officer (PW-12), Presiding Officer (RW -4) as well as the Circle Officer (RW-5) that both the schools are visible from each other and within the distance of about 100 mtrs. Mr. Bhattacharjee, in that regard, has placed reliance on Exhibit-O proved by RW-5. Therefore, according to the learned Sr. Counsel, there is no question of any voters leaving the place without casting their votes because of setting up of polling station in a non-notified place.
25. Regarding the complaint dated 03.04.2006 (Exhibit-3) allegedly filed by Dugdha Ch. Gogoi (PW-2), it has been argued by Mr. Bhattacharjee that Dugdha Ch. Gogoi (PW-2) in his evidence, has admitted that the said document was not filed by him personally but was filed by another person namely, Prasanta Konwar, who has not been examined by the election petitioner. The Returning Officer, who has been examined by the election petitioner as one of his witnesses has also denied filing of any such complaint by Dugdha Ch. Gogoi on 03.04.2006. According to the learned senior Counsel, the said document has been manufactured for the purpose of this case. In any case, according to the learned Sr. Counsel, the said document, i.e. Exhibit-3, being the carbon copy is not admissible in evidence, the original having not been called by the election petitioner from the custody of the Returning Officer before whom it was alleged to have been filed. Mr. Bhattacharjee has further submitted that the election petitioner has also failed to prove the signature of the person who has allegedly received such complaint.
26. Mr. Bhattacharjee has further submitted that the election petitioner has failed to adduce any evidence to substantiate the plea that the EVM and other election materials were not duly sealed before it was shifted to the notified place and, on the other hand, the Returning Officer, the Presiding Officer, the Constituency Magistrate as well as the Observer appointed by the Election Commission, who have been examined as witnesses in the present proceeding have proved that those were properly sealed before shifting and no irregularity has been committed and no voters left the place without casting their vote because of setting up of polling station in a wrong place and subsequent shifting.
27. It has further been contended that the Court, while scrutinizing as to whether the alleged violation of the provision of the Act/Rules has materially affected the result of the election, is required to take into consideration the percentage of poll, the number of registered voters in the polling station in question, the number of candidates contested in the election as well as the percentage of votes polled by the election petitioner in such election. It has further been submitted that Court should also bear in mind the fact that the persons who alleged to have been deprived from casting of their votes because of non setting up of the polling station in the notified place may not cast their votes in favour of the election petitioner alone. Drawing the attention of the final result sheet (Exhibit L) as well as the presiding officer's diary (Ext. J), Mr. Bhattacharyya has further submitted that taking into account the percentage of votes polled, number of contestants in the field, the percentage of votes secured by the election petitioner in other polling station, it cannot be said that setting up of the polling station in a non notified place and its subsequent shifting to the notified place has materially affected the result of the election so as to declare the election of the respondent No. 2 void. According to the learned senior Counsel the Court cannot presume that the violation of the law materially affected the result of an election unless the same is specifically proved by the election petitioner. It has been submitted by Mr. Bhattacharyya that as because the polling station was set up in a non notified place, which is only 100 ft. away from the notified place, it is not possible to conceive that any voter could have any difficulty in finding the polling station and consequently would have been deprived from casting their votes.
28. Referring to the pleadings in the election petition, Mr. Bhattacharyya has contended that the petitioner has not pleaded the material facts as to how the election of the returned candidate has been materially affected because of the infraction of the provision of the Act and the 1961 Rules, though Section 83 of the Act requires that the election petition shall contain a concise statement of the material facts on which the petitioner relies. Mr. Bhattacharyya, therefore, submits that in the absence of pleading of material facts relating to materially affecting the result of the election, this Court shall not declare the election of the respondent No. 2 void, as any amount of evidence, which has no basis on the pleading cannot be read. Mr. Bhattacharyya in support of his contention has placed reliance on the decision of the Apex Court in Santosh Yadav (supra) as well as in Gursewak Singh v. Avtar Singh and Ors. .
29. Mr. Bhattacharyya in support of his contentions has placed reliance on the decision of the Mysore High Court in Sangappa Andanappa v. Shivamurthi Swamy Siddppalyaswamy AIR 1961 Mysore 106, the decision of the Madhya Pradesh High Court in Saved Ahmed v. Brijendra Nath Pathak and Ors. , and the Apex Court's judgment in Vashist Narain Sharma v. Dev Chandra and Ors. , in Ram Singh, Kidar Singh v. Ghasi Ram Sheo Nath and Ors. AIR 1955 NUC 5801, in Mahadeo v. Baku Udai Partap Singh and Ors. , in Paokai Haokip v. Rishangand Ors. , in Uma Ballav Rath v. Maheshwar Mohanty and Ors. , in Shri Beli Ram v. Shri Nand Kumar and Ors. , and in Santosh Yadav v. Narendra Singh .
30. Referring to the decisions cited by the learned senior Counsel for the election petitioner it has been contended by Mr. Bhattacharyya that the decision in Tazuddin Ahmed (Supra) cannot be held to be a good law because of the subsequent pronouncements of the Apex Court in various decisions cited by him including in Paokai Haokip (supra). Regarding the decision of the Punjab High Court in Bulia Ram (supra), and the decision of the Apex Court in Hari Bhisnu Kamath (Supra) on which the learned senior Counsel for the election petitioner has placed reliance, it has been submitted that the said decisions instead of supporting the case of the election petitioner supports his contention that mere infraction of the provision of the Constitution or the Act or the 1961 Rules would not ipso facto render the election of the returned candidate void unless such infraction has materially affected the result of the election and the burden of establishing the same is on the person who seeks the election to be set aside i.e. the election petitioner. Mr. Bhattacharyya, therefore submits the election petition deserves to be dismissed with cost.
31. Mr. Mazumdar, in reply to the arguments of the learned Senior Counsel for the respondent No. 2/returned candidate, has submitted that defect in the evidence on affidavit filed by the witnesses of the election petitioner cannot be a ground for rejection of such affidavit, as, such defect is curable. In support of such submission, Mr. Mazundar has referred to the decision of Apex Court in G. Mallikarjunappa and Anr. v. Shamanur Shivashankarappa and Ors. . It has further been submitted by Mr. Mazumdar that Section 83 of the Act requires the election petitioner to make a concise statement of material facts and not the evidence. According to Mr. Mazumdar, the election petition contains concise statements of material fact on which the petitioner relies, therefore, it cannot be said that there is no pleading relating to materially affecting the result of the election because of the infraction of the provision of the Act and the 1961 Rules. Mr. Mazumdar referring to Ext. J i.e. the presiding officer's diary has submitted that such document is fabricated one as the sentence in the second page of the said document 'but after proper discussion it is shifted to Manik Dutta LP school (Madhya) on 3.4.3006 at 9.45 AM" has been inserted subsequently to show the shifting of the polling station to the notified place at 9.45 AM and, therefore, such documents cannot be relied upon at all for any purpose. In any case, according to Mr. Mazumdar the election petitioner by adducing the evidence of PW 2 to 11 could prove that a large number of voters could not cast their votes because of non-setting up of the polling station in the notified place and its subsequent shifting. It has further been submitted that as the poll conducted in respect of the polling station No. 124 is no poll in the eye of law it is to be presumed that the same has materially affected the result of the election. Decision and Reasons Thereof:
32. Issue No. 1:
(i) Whether election petition is maintainable in the present form and whether it has been filed, presented and verified in accordance with law.
Issue No. 2:
Whether the Election Petition is liable to be dismissed for mis-joinder of the parties. i.e. respondent No. 1?
33. Both the issues having not been pressed into service, by the learned Senior Counsel for the respondent No. 2, have not been discussed on merit. The issues are, therefore, decided against the respondents and in favour of the election petitioner.
34. Issue Nos. 3 and 4:
3. Whether there is non compliance of provision of Section 25 and 58 of the Representation of People Act, 1951 and the Rules framed thereunder relating to shifting of polling station from one place to another and, if so, whether it has vitiated and materially affected the result of the election so far as it concerns the returned candidate?
4. Whether due to the sudden change and shifting of polling stations a large number of voters were deprived of their right to cast their votes, which has materially affected the result of the election of the returned candidate/respondent No. 2
(i) Both these issues being interrelated, are required to be discussed together and accordingly those are taken up for discussion and decision together.
(ii) The election petitioner, in the present election petition has challenged the election of respondent No. 2/returned candidate on the ground enumerated in Sub-Clause (iv) of Clause (d) of Sub-Section (1) of Section 100 of the Act by contending that the provisions of Section 25 and 58 of the said Act have been violated. During the course of argument it has further been contended by the learned Senior Counsel for the election petitioner that there has been violation of the provisions of Section 56 and Section 57 of the Act and Rule 15 of the 1961 Rules.
(iii) Section 100 of the Act provides the grounds on which an election can be declared void. Sub-Section (1)(d) of the said Section provides that the High Court shall declare the election of the returned candidate void, if the result of the election, in so far as it concerned the returned candidate, has been materially affected:
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interest of the returned candidate, by an Agent other than his Election Agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made under the Act.
(iv) Reading of Section 100 (1)(d), reveals that the High Court cannot declare election of a returned candidate void, on any of the ground enumerated in Sub-clause (i), (ii), (iii) or (iv) of Clause (d) of Sub-Section (1) of Section 100 unless, result of the election in so far as the returned candidate is concerned, has been materially affected. The election petitioner, in an election petition filed on such ground, is, therefore, first required to prove the existence of any of the aforesaid grounds, then that it has materially affected the result of the returned candidate. In the instant case, as discussed above, since the election petition has been filed challenging the result of the returned candidate on the ground of noncompliance of the provisions of the Act and the 1961 Rules framed thereunder, the election petitioner has to prove such non-compliance and also that the same has materially affected the result of the election. The mere noncompliance of any of the provision of the Act or the Rules framed thereunder without materially affecting the result of the election of the returned candidate would, therefore, not be sufficient to declare the result of the returned candidate void, by the High Court under Section 100(1)(d)(iv) of the Act, which view has taken by this Court in Tazuddin Ahmed, by Mysore High Court, in Sangappa Andanappa, by Punjab High Court, in Bulla Ram, by M.P. High Court, in Sayed Ahmed, by the Apex Court in Vashist Narain Sharma, in Hari Bishnu Kamath, in Mahadeo, in Paokai Haokip, in Shri Beli Ram, in Uma Ballav Rath & in Santosh Yadev (Supra).
(v) Keeping in view the aforesaid legal position, I shall now discuss the evidences on record as adduced by the parties in the present election petition.
(vi) The issue Nos.3 and 4 have two parts, the first part relating to non compliance of the provision of the Act and the 1961 Rules framed thereunder alleging setting up of polling station in a non-notified place and its subsequent shifting to the notified place and the second part relates to whether such non-compliance of the provision of the Act and the Rules has materially affected the result of the election so far it concerned the returned candidate. I shall now first discus the evidences relating to the first part.
(vii) As discussed above, the pleaded case of the election petitioner is that Manik Dutta L.P. School (Madhya) was the notified place for setting up of No. 124 polling station but the same was not set up in such notified place but was set up in another school namely, Chiring Gaon Railway Colony L.P. School, which according to the petitioner is 1½ Km. away. It is the further case of the election petitioner in the election petition that during the course of the poll on 03.04.2006, the said polling station was shifted from the said school namely, Chiring Gaon Railway Colony L.P. School, to the notified place, namely Manik Dutta L.P. School (Madhya), at about 12.30 PM. The Returned Candidate/respondent No. 2 in the written statement has also admitted that the said polling station was not initially set up in the notified place, i.e. Manik Dutta L.P. School (Madhya), but was set up in Chiring Gaon Railway Colony L.P. School, however, during the course of the poll when it was detected by the central observer, the same was shifted to the notified place at around 9.45 AM after observing all formalities and the poll re-started in that place at about 9.55 AM. The respondent No. 2/Re-turned Candidate, disputing the distance between the two schools, has stated in the written statement that it is only about 100 meter. The respondent No. 1, the Returning Officer in the written statement has also admitted the setting up of the said polling station in a non-notified area and subsequent shifting to the notified place, which according to the said respondent, was about 9.30 to 9.45, AM. Therefore, the respondents have in their pleadings, admitted that Polling Station No. 124 was not set up in the notified place initially but was subsequently shifted to the notified place. The evidence of the election petitioner (PW1) as well as his election agent (PW 2), have been supported by the Returning Officer (PW 12), the respondent No. 1 (R.W. 1), Presiding Officer (R.W. 4), Constituency Magistrate (R.W. 5) as well as the Central Observer (R.W.6) in that regard. However, there is dispute relating to time of such shifting as well as the distance between the said school, which will be dealt with later in this judgment.
(viii) Section 25 of the Act requires the District Election Officer to provide a sufficient number of polling station for every constituency and for publication of a list showing the polling stations so provided and the polling areas and groups of voters for which they have respectively being provided, with the previous approval of the Election Commission. It is not the case of any of the parties that Exhibit-H, i.e. the list of the notified place for setting up of different polling stations were not published with the previous approval of the Election Commission. Exhibit-H reveals that Manik Dutta L.P. School (Madhya) was the place notified for setting up of the polling station in question namely, No. 124 polling station, however, such polling station was not set up in the notified place initially but was set up in Chiring Gaon Railway Colony L.P. School, which was, however, subsequently been shifted to the notified place during the continuance of the poll on 03.04.2006.
(ix) The requirement of notifying the polling stations under Section 25 of the Act is not for nothing. It has definite purpose. By notifying the polling stations, with the previous approval of the Election Commissioner, the voters are intimated the areas false in each of such Polling Stations and also about the place in which they are to cast their votes. Therefore, Polling Station has to be set up at the place notified under Section 25 of the Act and nowhere else. The contention of the respondent No. 2/returned candidate that as it is not the case of the election petitioner that no place for setting up of No. 124 Polling Station was notified, the setting up of the Polling Station in a place other than the notified place would not amount to violation or non-compliance of the provisions of Section 25 of the Act, cannot, therefore, be accepted, as, such setting up of a Polling Station in a non-notified place is not permissible under the Act. Hence, there is non-compliance of provision of Section 25 of the Act.
(x) The further case of the election petitioner is that Section 56 of the Act having provided the fixation of time for poll and Rule 15 of 1961 Rules having provide that the hours fixed for poll under Section 56 shall be published by a notification in the official gazette and such time for poll having been notified by the authority as required under the provisions of law, such poll has to be in the place notified under Section 25 of the Act and for the said notified hours, which in the case in hand has been violated. On the other hand, the contention of the respondent No. 2/returned candidate is that the polling hours having admittedly been commenced at 7 am and continued till 4 pm, part of which may be in a non-notified place, there is no violation of the provisions of Section 56 of the Act.
(xi) In the instant case, it is evident from the deposition of the parties and also not disputed by the learned senior Counsel appearing on behalf of the election petitioner as well as the respondent No. 2 that the polling started in Chiringgaon Railway Colony L.R School i.e. non-notified place at 7 am and continued, at least till 9.45 am. Though there is dispute relating to time of shifting of the Polling Station, it is admitted by the respondent No. 2 that the place of poll was shifted to the notified place around 9.45 am on the date of poll i.e. on 3.4.2006 and polling restarted in the notified place around 9.55 am, even if his stand on the time of shifting of Polling station is accepted. It is also admitted by the respondent No. 2 that polling in the notified place did not commence at 7 am till at least 9.55 am, though the time of poll was notified to be 7 am to 4 pm. Such hours for poll fixed by the authority under Section 56 of the Act as notified under Rule 15 of 1961 Rules has to be in relation to notified polling station. The time spent for poll in the non-notified place cannot be treated as time for poll in a notified place. Therefore, the provisions Section 56 of the Act has also been violated by not conducting the poll for the hours in the notified polling station, as fixed by the Election Commission and notified under the Rule 15 of 1961 Rules.
(xii) The next contention of the election petitioner is that the Presiding Officer having found that the Polling Station No. 124 was set up in a non-notified place is duty bound to adjourn the poll in the said Polling Station, in exercise of power conferred by Section 57(1) of the Act and having not done so, the said provisions has been violated, as setting up of polling station in such non-notified place amounts to 'sufficient cause' within the meaning of Section 57 of the Act. The respondent No. 2/returned candidate has contended that the terminology 'any other sufficient cause' is relatable to riot or open violence or natural calamities as provided in Sub-section (1) of Section 57 of the Act and setting up of Polling Station in a non-notified place cannot be a ground for exercising power under Section 57 of the Act. It has further been contended that the said provision being directory in nature, violation of it would not give rise to the ground to set aside the result of the election of the returned candidate. It has further been contended that there being no pleadings in the election petition relating to the violation of the provisions of Section 57 of the Act and also in the absence of any evidence adduced by the election petitioner, his contention relating to the violation of such provision of law cannot be accepted.
(xiii) Perusal of the pleading in the election petition, reveals that the electioneer has not pleaded any violation of the provision of Section 57 of the Act or that the setting up of the polling station in a non-notified place and it subsequent shifting to the notified place, amounts to 'sufficient cause' within the meaning of the said provision of law. The election petitioner has also not led any evidence to that effect and no issue was also framed.
(xiv) Sub-section (1) of Section 57 of the Act empowers the Presiding Officer to adjourned the poll to a date to be notified later on, in the event the proceedings at any polling station provided under Section 25 or at the place fixed under Section 29(1) for the poll are interrupted or obstructed by any riot or open violence or if at an election is not possible to take the poll in any polling station or such place on account of any natural calamity, or any other sufficient cause. Before exercising the power under the said provision of law, the presiding officer, therefore, must satisfy that the poll in any polling station as notified under Section 25 is interrupted or obstructed by any riot or open violence or it is not possible to take the poll at any polling Station on account of any natural calamity or on 'any other sufficient cause', such 'sufficient cause' has to the related to the riot or open violence or any natural calamity as the 'any other sufficient cause' has to be read ejusdem jeaneries with the word preceding in Section 57(1). In the instant case, it is not the case of the election petitioner that poll in Polling Station No. 124 was interrupted or obstructed on account of riot or open violence or it was not possible to take the poll on account of any natural calamity. Hence, the contention of the election petitioner in that regard cannot be accepted and hence rejected. My said view has the support in the judgment passed by the Madras High Court in P.S. Chellathurai (Supra). Having held so, I do not consider it necessary to decide as to whether the provision of Section 57 is directory or mandatory.
(xv) The next contention of the election petitioner is relating to the violation of Section 58 of the Act. It has been pleaded in the election petition that by setting up of Polling Station No. 124 in a non notified place and its subsequent shifting to the notified place, the error or irregularities in the procedure in setting up of the polling station and in conducting election has been committed and therefore the Returning Officer was required to report forthwith to the Election Commission, such error or irregularities to the Election Commission, as required under Section 58(1)(b) of the Act, so that the Election Commission could take the proper decision as require under Sub-section (2) of that section. Such argument has been countered by the respondent No. 2 by contending that the provisions of Section 58 can be exercised only when there is destruction of ballot boxes, EVM and in any case, there being no pleading or evidence led by the election petitioner that such error or irregularities likely vitiate the poll, the Returning Officer has not committed any illegality in not reporting the matter to the Election Commission.
(xvi) Section 58(1) of the Act cast a duty on the Returning Officer to report the Election Commission in case (a) any ballot box used at the Polling Station or at a place for the poll is unlawfully taken out of the custody of the Presiding Officer or the Returning Officer or is accidentally or intentionally destroyed or lost or is damaged or tampered with, to such an extent, that the result of the poll at that polling station cannot be ascertained; or (aa) any voting machine develops mechanical failure during the course of recording of votes or (b) any such error or irregularities in procedure as is likely to vitiate the poll is committed at the polling station or at a place fixed for that purpose. It is not the case of the election petitioner that any ballot box used in the polling station has been taken out of the custody of the Presiding Officer or Returning Officer or destroyed or lost or damaged or tempered with or any voting machine developed any mechanical failure during the course of recording of votes. The contention, as discussed above, is that there has been an error or irregularity in procedure in conducting the poll as the polling station was set up in a non-notified place and such action amounts to error or irregularity in procedure, within the meaning of Section 58(1)(b) of the Act. Such contention of the election petitioner also cannot be accepted for the reason that Clause (b) of Sub-section (1) cannot be read in isolation, which has to be read in the context of Clause (a) or (aa). Therefore, the error or irregularity in procedure must be related to the ballot box or the voting machine. Hence, the contention of the election petitioner in that regard cannot be accepted.
(xvii) The election petitioner has further contended that the provisions of Rule 31 of 1961 Rules has been violated by not making necessary arrangement as required to be made after shifting of the Polling Station to the notified place at Manik Dutta L.P. School (Madhya). The said contention of the election petitioner cannot be accepted on the ground that there in no pleading to that effect in the election petition and no issue was framed in that regard and even no evidence is led. Only during the course of argument it has been contended that the provisions of Rule 31 has been violated. Moreover, though the election petitioner has examined the Returning Officer (PW 12) and also thoroughly cross-examined the Presiding Officer (R.W. 4), the Constituency Magistrate (R.W. 5) and the Central Observer (R.W. 6) he did not even put any suggestion to that effect. Therefore, the said contention of the election petitioner also cannot be accepted.
(xviii) The further the contention of the election petitioner that as the poll in Polling Station No. 124 was not conducted in accordance with law, the same is vitiated, amounting to incomplete election and hence election of the returned candidate is to be declared void, also cannot be accepted, as the result of election of the returned candidate cannot be declared void by this Court, unless the election petitioner proves, by adducing cogent and reliable evidence, that the non-compliance of the provisions of the Constitution or of the Act or of the Rules or orders made under the Act has materially affected the result of the returned candidate.
(xix) The case of the election petitioner that such shifting was made to the notified place without sealing of the EVM and other election materials cannot be accepted, as, except the election petitioner, no other persons present in Chiring Gaon Railway Colony L.P. School at that point of time stated anything about the non-sealing of the EVM and other election materials. The petitioner admittedly was not present in the said school as he has stated in his deposition that on the date of poll, he could not visit either of the schools where No. 124 polling station was set up. PW-2, PW-3 and PW-4, who were stated to be present, also did not state anything regarding non-sealing of the EVM and other election materials. The election petitioner even did not produce the Polling Agents appointed by him in respect of polling station No. 124 to prove that EVM and other election materials were not sealed. On the other hand, the respondent No. 2/returned candidate by producing the RW-2, Smti Sabitri Das as well as RWs-4, 5, 6 and 7, namely the Presiding Officer, Polling Officer, Constituency Magistrate and Central observer have proved that before shifting of the polling station from Chiring Gaon Railway Colony L.P. School to Manik Dutta L.P. School (Madhya), the EVM and other election materials were duly sealed as required under the law. RW-4 has also proved the consent in writing given by the Polling Agents of the election petitioner and Polling Agents of other candidates including the respondent No. 2 in shifting the said polling station to the notified place after sealing of the EVM and other election materials.
(xx) Having held that there is non-compliance of the provision of Sections 25 and 56 of the Act, the next question, which requires consideration is whether such non-compliance has materially affected the result of the election. The question as to whether the infraction of law has materially affected the result of the election or not, is purely a question of fact. Relying on the decision of the Apex Court in Santosh Yadev (supra), though it has been contended by the learned Counsel for the election petitioner that the presumption can be drawn that the result of the election of the returned candidate has been materially affected because of the setting of the polling station in a wrong place and subsequent shifting, no such presumption, in my opinion, can be drawn, as Section 100(1)(d) of the Act in clear terms provide that the election of the returned candidate can be declared void on any of the ground enumerated therein, provided such ground materially affected the result of the election. Presumption is an inference of certain facts drawn from other proved facts. Therefore, the fact that such infraction has materially affected the result of the election must be proved. There must be positive proof of the fact that significant numbers of voters could not cast their votes because of change in the place of setting up the polling station, which burden is on the election petitioner. The Apex Court in Santosh Yadav (Supra) referring to Section 100(1)(c) and (d) has observed that that there is clear distinction between improper rejection of nomination and in proper acceptance of nomination and to void an election on the ground of improper rejection of nomination, the law does not require proof that the result of the election has been materially affected. The fact that one of the several candidates for an election was kept out of the arena is by itself a very material condition. But in case of improper acceptance of nomination, it is required to prove by adducing evidence demonstrating that coming into the arena of additional candidate has had the effect on the election in such a manner that the best choice of the electorate was excluded. Therefore, the decision in Santosh Yadav (Supra) does not support the contention of the election petitioner. The apex Court in Uma Ballav Rath (Supra) also observed that unless the election petitioner by adducing cogent and reliable evidence proves that infraction of law has materially affected the result of the election of the returned candidate, the election of the returned candidate cannot be declared void. It has further been observed that an election cannot be set aside on presumption, surmises or conjecture.
(xxi) I shall now discuss the evidence on record as adduced by the parties, relating to time of shifting of polling station from the non-notified place to the notified place as well as the distance between the aforesaid two places (schools), as the same have bearing on the question as to whether the non-compliance of the provisions of the Act has materially affected the result of the election of the returned candidate.
(xxii) PW-1, the election petitioner in his examination-in-chief has stated that such shifting from Chiring Gaon Railway Colony L.R School to the notified place was done at about 12.45 PM. It has further been stated by the PW1 in his examination-in-chief that the distance between the two aforesaid schools is about 1½ Km. During cross-examination by the respondent No. 2, PW-1 has however, stated that he got the information relating to the setting up of the polling station in Chiring Gaon Railway Colony L.P. School and subsequent shifting from his election agents Shri Puspa Nath Sharma (PW-3) and Shri Durlabh Kalita (PW-4) and did not visit the polling station personally. It, therefore, appears that the statement of this wetness relating to the time of shifting is based on the information furnished to him by PW-3 and PW-4.
(xxiii) Shri Dugdha Ch. Gogoi (PW-2), the election agent of the election petitioner, in his examination-in-chief has stated that the polling station was shifted from Chiring Gaon Railway Colony L.P. School to the notified place at around 12.30 PM, which information he got from the PW-3 and PW-4 namely, Shri Puspa Nath Sharma and Shri Durlabh Kalita over his mobile phone. Therefore, this witness namely, PW-2, derived the information of such setting up and subsequent shifting of the polling station from PW-3 and PW-4. This witness has further admitted that he was not there in Chiring Gaon Railway Colony L.P. School at the time when the polling station was shifted from that school to Manik Dutta L.P. School (Madhya), i.e. the notified place.
(xxiv) PW-3, Shri Puspa Nath Sharma, in his examination-in-chief has stated that about 9.30 AM on the date of poll he went to caste the vote in Manik Dutta L.P. School, i.e. the notified place, but having not found the same he made an enquiry and on coming to know about the setting up of the said polling station in Chiring Gaon Railway Colony L.P. School, he went to the said school and cast his vote. He has further stated that he waited there till around 12 noon when some polling officials came and stopped the polling in Chiring Gaon Railway Colony L.P. School and, therefore, shifted to Manik Dutta L.P. School, i.e. the notified place. This witness has made a categorical statement that he does not know about shifting of the polling station from Chiring Gaon Railway Colony L.P. School to Manik Dutta L.P. School (Madhya), i.e. to the notified place. This witness, during cross-examination has further stated that he did not discus the shifting of the polling station from one school to another with anybody including the election petitioner. The evidence of this witness, in view of the above, in that regard, cannot be believed.
(xxv) PW-4, Shri Durlabh Kalita, the other person, who according to the election petitioner, has informed him about such setting up and subsequent shifting of polling station has not stated anything relating to the shifting of polling station from Chiring Gaon Railway Colony L.P. School to Manik Dutta L.P. School (Madhya). That apart, the evidence of this witness does not inspire the confidence of the Court, as he has admitted that he does not know what has been written in the evidence-on-affidavit filed, which has been treated as examination-in-chief. During cross-examination, he has stated that the evidence-on-affidavit filed by him does not contain any date though it contains the month and the year and he does not know even the Advocate who has identified him.
(xxvi) PW-5 to PW-11 have not stated anything relating to the shifting of the polling station from Chiring Gaon Railway Colony L.P. School to Manik Dutta L.P. School (Madhya), i.e. the notified place. PW-12, the Returning Officer in his examination-in-chief has stated that the polling station No. 124, which was wrongly set up in Chiring Gaon Railway Colony L.P. School, because of the wrong committed by the Sector Officer, who was transferred to Dibrugarh district just before the election, was shifted to the notified place, at the instance of the Central Observer at around 9.40 AM. PW-12, however, has admitted that no notification was issued regarding such change of place and he did not personally visit the polling station though he was informed by the Central Observer. He has further stated that his statement relating to the time of shifting of polling station to the notified place is based on the information gathered from the Central Observer, Presiding Officer of the polling station as well as the Assistant Returning Officer and Additional District Magistrate. The respondent No. 2 has not cross-examined this witness on his statement relating to the time of shifting of polling station.
(xxvii) The Returned Candidate/respondent No. 2 (R.W. 1), in his examination-in-chief has stated that on the date of poll, i.e. 03.04.2006, he got the information from his polling agent namely, Smti Sabitri Das (RW-2), that the No. 124 polling station instead of setting up in the notified place was set up in Chiring Gaon Railway Colony L.P. School, where poll commenced at 7 AM and, thereafter, at about 9 to 9.30 AM while the polling was going on smoothly some election officials came and pointed out to the Presiding Officer that the said polling station was set up in a non notified place and accordingly though she initially verbally raised objection, she subsequently consented in writing to such shifting of polling station to the notified place and accordingly after observing necessary formalities the EVMs and other poll materials were taken in a vehicle at around 9.40 AM to the notified place, i.e. Manik Dutta L.P. School (Madhya), where the voting resumed at about 9.45 AM and continued till 4.30 PM. It appears from the deposition of the RW-1 that he was not present at the time of such shifting and his information is based on the information furnished to him by his election agent Smti Sabitri Das (RW-2). The Returned Candidate (RW-1) has also proved the appointment of Smti Sabitri Das as well as of Shri Rakesh Sing as his polling agent, by exhibiting the orders of appointment being Exhibits-E and F respectively. RW-1 has also proved the consent letter dated 03.04.2006 given by the polling agents of different candidates for shifting of the polling station as Exhibit-I. This witness though was cross-examined thoroughly by the election petitioner, no material contradiction could be brought out relating to the time of shifting of polling station to the notified place. However, as his information is based on the information supplied to him by his polling agent Smti Sabitri Das (RW-2), her evidence assumes importance in that respect.
(xxviii) RW-2 in her examination-in-chief has stated that on the date of poll, i.e. on 03.04.2006, she being the polling agent appointed by the Returned Candidate/respondent No. 2, reached Manik Dutta L.P. School, i.e. the notified place, at 6.45 AM and on being informed by the election officials present there, which school has two more polling stations apart from polling station No. 124, she went to Chiring Gaon Railway Colony L.P. School and found that polling station No. 124 was established in the said school. She has stated that the poll started in the said school from 7 AM and, thereafter, at around 9 to 9.30 AM an election official having a tribal look along with another officer came inside the polling station and informed the Presiding Officer that the said polling station ought to have been in Manik Dutta L.P. School (Madhya) and, thereafter, as per instruction, the same was shifted to the said notified place, which was at the close proximity of Chiring Gaon Railway Colony L.P. School, by carrying election materials and EVMs after observing all necessary formalities, in a vehicle at about 9.40 AM and the polling started in Manik Dutta L.P. School (Madhya) at around 9.45 AM. This witness though was thoroughly cross-examined by the election petitioner, no contradiction whatsoever relating to the time of shifting after observing all necessary formalities could be brought out. Rather during cross-examination, she has reiterated her statement made in the examination-in-chief. This witness, however, has denied the suggestion that such shifting was done at about 12.30 PM. This witness has also proved the consent in writing (Exhibit-I) given by her as well as by the polling agents of the election petitioner namely, Shri Santosh Das and Shri Sidananda Sensowa.
(xxix) RW-3, Shri Mantu Das in his deposition has not stated anything relating to the shifting of the polling station from Chiring Gaon Railway Colony L.P. School to Manik Dutta L.P. School (Madhya). RW-4, Shri Durga Prasad Gogoi, the Presiding Officer of No. 124 polling station, in his examination-in-chief has stated that while the polling was in progress in Chiring Gaon Railway Colony L.P. School, just after 9 AM Shri Neihu C. Thur, the Central Observer came and informed him that the polling station ought to have been established in Manik Dutta L.P. School (Madhya) being the notified place and accordingly he instructed the polling officials including him to establish the same to the notified place. Accordingly, after informing the voters present in the queue, the process of shifting was initiated at around 9.45 AM and the EVMs and other election materials were carried in a vehicle accompanied by two polling officials and some polling agents of candidates and on completion of such shifting the polling in Manik Dutta L.P. School (Madhya) was started at 9.55 AM. This witness has also stated that Exhibit-I, consent letter was given by the polling agents of different candidates consenting to such shifting. RW-4 has also proved the diary maintained by him, which has been exhibited as Exhibit-J and also proved the remark at serial Nos.23 and 25 of the said diary relating to shifting of such polling station and also the time at which such shifting was done, i.e. at 9.45 AM.
(xxx) The contention of the learned senior Counsel for the election petitioner that the Ext. J is a fabricated document and therefore cannot be relied upon for any purpose, cannot at all be accepted as election petitioner though thoroughly cross-examined this witness has not even put any suggestion that the document is fabricated. It appears from the said document that the space in the format to report the mistake and irregularities, if any, committed at the Polling Station, was very little. The Presiding Officer has to record the mistake and irregularities in that limited space. Hence, the writing as it appears in Ext. J cannot be the ground for holding that the document was fabricated one. This witness has also, on the other hand, during cross-examination, reiterated his statement relating to the time of shifting of the Polling Station to the notified place. PW-2, the election agent of the election petitioner, during cross-examination has admitted that Shri Santosh Das and Shri Sidananta Sensowa were appointed by him as polling agents of the election petitioner in respect of polling station No. 124. The election petitioner did not examine these polling agents though they were admittedly present all through out on the date of poll in the polling station, initially in Chiring Gaon Railway Colony L.P. School and, thereafter, in Manik Dutta L.P. School (Madhya). As discussed above in Exhibit-J, i.e. the Presiding Officer's diary, proved by the Presiding Officer (RW-4), the time of shifting of the polling station to Manik Dutta L.P. School (Madhya) has been clearly recorded as 9.45 AM and about, which this witness was not cross-examined by the election petitioner. RW-5, Shri Partha Pratim Bairagi, the Constituency Magistrate, who was also present at the time of shifting, has also deposed before this Court that the polling was re-started at around 9.45 AM after shifting to the notified place. This witness was also not cross-examined by the election petitioner about the time of shifting of such polling station.
(xxxi) From the aforesaid discussion, it is, therefore, evident that poll in Chiringgaon Railway Colony L.P. School started at 7 AM but subsequently as per instruction of the Central Observer (RW-6) and in presence of the Constituency Magistrate (RW-5), the process for shifting of polling station was started at 9.45 AM and polling re-started in Manik Dutta L.R School (Madhya), i.e. in the notified place at around 9.55 AM. The version of the election petitioner that such shifting was done at about 12.30 PM cannot therefore, be accept as the election petitioner has failed to prove the same.
(xxxii) The further case of the election petitioner as it appears from the pleading in the election petition as well as the depositions of witnesses that the distance between the aforesaid two schools is about 1½ Km.. The election petitioncr/PW-1, the election agent/PW-2 as well as PW-3 in their evidence have supported such version. However, the Returning Officer, who has been examined as PW-12 by the election petitioner in categorical term, has stated that the distance between the two schools is about 100 meters. RW-5, Shri Partha Pratim Bairagi, the Constituency Magistrate and who is the Circle Officer of Dibrugarh East Circle has also deposed that he took the measurement personally with the help of the Lot Mandal Shri Matiur Rahman and Supervisory Kanoongo Shri Uma Barua and found it to be 440 Ft. for which he furnished the lay out (Exhibit O) bearing the signatures of all the three persons. His signature as well as of the Lot Mandal and Supervisory Kannongo have been proved. RW-5 has stated that such lay out was prepared on the basis of the application filed by the Returned Candidate on 08.08.2006 (Exhibit-N). The election petitioner did not at all cross-examine this witness, on Exhibit-O, wherein, it has been recorded that the distance between the two schools is 440 Ft. Therefore, the version of the election petitioner that the distance between the two schools is 1½ Km. cannot be accepted. On the other hand, there is ample evidence on record to show that the distance between the two schools is 440 Ft., i.e. about 100 meters. The distance being the short distance it supports the case of the returned candidates that the shifting of the polling station from Chiring Gaon Railway Colony L.P. School to Manik Dutta L.P. School (Madhya) completed within about 10 minutes. The distance has also relevance relating to the claim of the election petitioner that a large number of voters could not cast their votes because of such wrong setting up and subsequent shifting of polling station, which I shall discuss later.
(xxxiii) The next question requires to be decided in the present case is whether such initial setting up of the polling station No. 124 at anon notified place, i.e. Chiring Gaon Railway Colony L.P. School, and its subsequent shifting to Manik Dutta L.P. School (Madhya), i.e. the notified place, results in depriving the voters from casting their votes and whether it has materially affected the result of the returned candidate, which is the second part of the issue Nos. 3 and 4.
(xxxiv) The election petitioner (PW-1) in his deposition has stated that because of such setting up of polling station in a wrong place and subsequent shifting a large number of voters were deprived from casting their votes, thereby materially affecting the result of the election of returned candidate. In his examination-in-chief, PW-1 has further stated that he came to know about such wrong setting up and subsequent shifting of polling station from PW-3 and PW-4, namely Shri Puspa Nath Sharma and Shri Durlabh Kalita at around 10-30 in the morning on the date of the poll. It has further been stated that no publicity was given about such setting up of polling station in Chiring Gaon Railway Colony L.P. School and subsequent shifting to Manik Dutta L.P. School (Madhya). During cross-examination by the respondent No. 2, the returned candidate, PW 1 (Dr. Kalyan Chandra Gogoi), however, has stated that in spite of receipt of the information, he did not visit the said place, i.e. either Chiringgaon Railway Colony L.P. School or Manik Dutta L.P. School (Madhya). His information in that respect is based on the information given to him by PW-3 (Shri Puspa Nath Sharma) and PW-4 (Shri Durlabh Kalita) as well as PW-2 (Shri Dugdha Chandra Gogoi), his Election Agent and not based his personal knowledge. As discussed above, the election petitioner has not examined any PollingAgent appointed by him in respect of Polling Station No. 124 or any person engaged in the polling booth set up by the Congress Party in front of the Polling Station No. 124, though according to the election petitioner, the Polling Agents were present in the polling station and such booths were set up. During cross-examination this witness has further stated that in the application dated 03.04.2006 (Exhibit-3), there is no mention that 200/300 voters could not cast their votes because of shifting of such polling station.
(xxxv) PW-2 (Shri Dugdha Chandra Gogoi), the Election Agent of the election petitioner, in his examination-in-chief, by way of affidavit, has stated that he came to know about such setting up of polling station in wrong place and subsequent shifting from Shri Pushpa Nath Sarma (PW-3) and Shri Durlab Kalita (PW-4) and, thereafter, he went to Chiring Gaon Railway Colony L.P. School and found that Polling Station No. 124 has been set up in the said school. He has further stated that he then lodged a written complaint on 03.04.2006 (Exhibit-3) to the Returning Officer drawing his attention about the shifting of said polling station without informing the concerned voters. PW-2 during cross-examination has further stated that Shri Santosh Das and Shri Sidananda Sensowa were appointed as Polling Agents by him, being the Election Agent, in respect of the said polling station and the party has set up their own booths outside the polling station, which was manned for helping the voters to find out their names in the electoral roll and in casting their votes. Shri Dugdha Chandra Gogoi (PW-2) during cross-examination has stated that PW-3 and PW-4, namely, Shri Puspa Nath Sharma and Shri Durlab Kalita were not present in Manik Dutta L.P. School (Madhya) but were present in Chiring Gaon Railway Colony L.P. School. This witness though in his evidence-on-affidavit (examination-in-chief) has stated that because of setting up of the polling station in a wrong place, i.e. Chiring Gaon Railway Colony L.P. School, many voters could not locate the polling station and left the place without casting their votes, about which he came to know from PW-3 and PW-4, admittedly the same has not been mentioned in the application dated 03.04.2006 (Exthibit-3), which according to him was filed before the Deputy Commissioner-cum-Returning Officer through one Shri Prasanta Konwar. The entire information regarding deprivation of many voters from casting their votes is, therefore, not based on his personal knowledge but on the basis of the information given to him by PW-3 and PW-4, who according to this witness were not present in Manik Dutta L.P. School. The version of this witness as well as of the election petitioner, that a large number of voters could not cast their votes, because of such setting up of polling station in a wrong place and subsequent shifting, cannot be relied upon for the purpose of recording the finding in favour of the election petitioner.
(xxxvi) PW-3 (Shri Pushpa Nath Sarma) in his examination-in-chief has stated about his going to Manik Dutta L.P. School (Madhya) for casting his vote at around 9-30 A.M. on 03.04.2006, about not finding the polling station in the said school. According to him, a large number of voters have left the place without casting their votes, as they could not find out the polling station. This witness has, however, stated that he could find out the polling station in Chiring Gaon Railway Colony L.P. School and cast his vote. During cross-examination by the returned candidate this witness has stated that he went to cast his vote in Manik Dutta L.P. School (Madhya) and was there in that school for about 5 (five) minutes and then went to Chiring Gaon Railway Colony L.P. School for casting his vote. He has further stated that he never asked any person present in Manik Dutta L.P. School to go to Chiring Gaon Railway Colony L.P. School for casting their votes. He also does not remember the names of persons with whom he discussed about the setting up of the polling station in Chiring Gaon Railway Colony L.P. School. During cross-examination he has further stated that he found persons present in Chiring Gaon Railway Colony L.P. School also. Shri Pushpa Nath Sarma, during cross-examination further deposed that he does not know about shifting of the polling station from Chiring Gaon Railway Colony L.P. School to Manik Dutta L.P. School (Madhya) as he was there in Chiring Gaon Railway Colony L.P. School up to 12 noon. It is, therefore, evident from his deposition that this witness was in Manik Dutta L.P. School (Madhya) at about 9-30 A.M. and within 5 (five) minutes he could locate the place where the polling station was wrongly set up and went there to cast his vote. From the deposition of this witness, it also appears that after going to Manik Dutta L.P. School (Madhya) for casting the vote at about 9 A.M. and on not finding the Polling Station No. 124 in the said place, he discussed about the same with the persons present there, who were the voters and within five minutes he came to know the setting up of the Polling Station in Chiring Gaon Railway Colony L.P. School. From the deposition of this witness, therefore, it is evident that the voters present in the place at that point of time knew about the setting up of the Polling Station in Chiring Gaon Railway Colony L.P. School. This witness has further deposed that the voters were also present in Chiring Gaon Railway Colony L.P. School when he went there to cast his vote. His deposition before the Court that though he came to know about the setting up of the Polling Station, he did not disclose the same to the others though he discussed with the persons present there, is also not believable as it is most unnatural that during such discussion, the place of setting up of the Polling Station would not find place, when all of them were present in that place to cast their votes, more so, when this witness has admitted that within five minutes of reaching Manik Dutta L.P. School, he could know that Polling Station No. 124 was set up in Chiringgaon Railway Colony L.P. School.
(xxxvii) Further this witness, during cross-examination, has stated that he cannot explain in Assamese what has been written in the evidence-on-affidavit as he does not know English properly and he went to the Court for swearing the affidavit as asked by Advocate, Mr. P.K. Dey, whom he does not know personally. He has also admitted during the cross-examination that the evidence-on-affidavit filed by him does not contain any date though it contains months and the year. From the said affidavit, it appears that even the declaration portion of the affidavit does not have any date though it has the month and the year mentioned. From the aforesaid discussion of evidence of this witness, it appears that he does not even know the contents of the affidavit filed by him as evidence. It is also not clear on which date such affidavit was sworn by this witness. Such evidence, therefore, does not at all inspire the confidence of the Court.
(xxxviii) PW-4, Shri Durlabh Kalita, in his examination-in-chief has stated that on the date of poll at about 9 A.M. he went to Manik Dutta L.P. School (Madhya) to enquire about the Polling Station as Congress Worker and came to know that the said Polling Station instead of setting up in the said notified place was set up in Chiring Gaon Railway Colony L.P. School, however, without any notification. This witness further deposed that he then informed the election petitioner (PW-1) as well as the Election Agent (PW-2). The evidence of this witness do not inspire the confidence of the Court for the reason that he even does not know what has been written in the evidence on affidavit filed by him as his examination-in-chief and there is no evidence to the effect that the contents of the said affidavit which is in English has, ever been read over and explained to him as he does not know English properly.
(xxxix) Shri Prasanta Dutta (PW-5) in his examination-in--chief has also stated that at around 9 A.M. on 03.04.2006 he went to cast his vote in Manik Dutta L.P. School (Madhya) but could not find the polling station there. He has further stated that after waiting for some time he enquired from persons present there about such polling station but nobody could give any reply, for which he could not cast the vote. During cross-examination, this witness, however, has stated that when he did not find the polling station in Manik Dutta L.P. School (Madhya) he did not discuss the same with the persons present in different booths set up by different parties including Congress Party outside the Polling Station No. 124, though a number of persons were present there. This witness further during cross-examination, has stated that his father Hira Nath Dutta, who is a voter in respect of Polling Station No. 124, went to cast his vote on the date of poll and in fact he cast his vote. His statement during cross-examination about not discussing about setting up of polling station in a place other than Manik Dutta L.P. School (Madhya) though a number of persons were present there, renders his evidence doubtful, as in the affidavit filed by him, he has stated that he discussed the matter with some other persons but nobody could give any answer. It is not likely that this witness having been to Manik Dutta L.P. School (Madhya) for casting vote and having not found the polling station there, would not ask the persons present there about the place where the polling station has been set up. It is being in evidence that his father on that day cast his vote also make his version about his inability to cast his vote doubtful as both of them are admittedly staying together. No reliance, therefore, can be placed on the evidence of this witness, to record a finding in favour of the election petitioner.
(xl) PW-6 (Shri Pranjal Bora) in his examination-in-chief has also stated whatever has been stated by PW-5 in his evidence-on-affidavit, except the time when he went to Manik Dutta L.P. School (Madhya) to cast his vote, which, according to this witness was at 11.30 A.M. This witness during cross-examination by respondent No. 2 has, however, stated that on being discussed with the persons present about the matter, he could learn about setting up of such polling station in another school. This witness has also stated that though his father initially informed him that he could not cast his vote but subsequently he went out again to cast his vote. The evidence of this witness is also not believable as it is not likely that he would not know the place where the polling station was set up when he came to know about such shifting and his father, in fact, who could cast his vote though initially he could not, having stayed together.
(xli) Smti Baijanti Cubey has been examined as PW-7 by the election petitioner in support of his case that a large number of persons could not cast their votes. The evidence-on-affidavit filed by this witness is also same as that of PW-5 and PW-6, except the time when she went to cast her vote, which according to her was at about 9 A.M. This witness, during cross-examination has stated that she does not know what has been written in the affidavit though it was read over to her by the Advocate. This witness has further stated during cross-examination that after going to Manik Dutta L.P. School (Madhya) she didn't discuss the matter with anybody relating to setting up of the polling station. She has further deposed during cross-examination that her husband, who is a voter of Polling Station No. 124, however, cast his vote in the evening. The evidence of this witness also cannot be believed in view of the fact that she has admitted that she does not know what has been written in her evidence in affidavit and also it is not likely that she would not discuss about setting up of polling station with the persons present there and also with her husband, who, according to her, cast the vote.
(xlii) Smti Subarna Bora (PW-8) in her examination-in-Chief has also stated that on the date of poll at about 11 A.M. she went to cast her vote in Manik Dutta L.P. School (Madhya) and having not found the polling station there, she waited for some time, asked people standing there about the polling station and having not getting any answer as to where the polling station has gone, she could not cast the vote. During cross-examination by the respondent No. 2 this witness has stated that she does not know what has been written in the affidavit, which has been treated as examination-in-chief, but the content of the affidavit was read over to her and she put her signature thereafter. She has further stated that she signed the affidavit without knowing the contents thereof. This witness during cross-examination has also stated that there are certain discrepancies in the date given in the affidavit though the affidavit has been sworn on 13.12.1996, the identifying advocate put his signature on 14.12.2006 so also the magistrate, before whom the affidavit was sworn. She further deposed that she never made any enquiry about the shifting of polling station, though in her affidavit she has stated that she asked persons waiting there about the polling station. PW-8 has further stated that her husband cast his vote in the election. No reliance can be placed on the testimony of this witness. This witness even does not know what has been written in the evidence on affidavit and she put her signature without knowing the contents thereof. Her evidence, therefore, is not believable and hence cannot be relied upon.
(xliii) Smti Pratima Bora (PW-9) in her evidence-on-affidavit has also stated what PW-8 has stated in her evidence. The contents of both the affidavits are exactly same. This witness also during cross-examination has specifically stated that she did not make any enquiry where the polling station has been shifted, though in her evidence on affidavit she has stated otherwise. The discrepancy relating to the date when this witness has signed the affidavit as well as the dates of identification by the identifying Advocate as well the date of declarations and signatures by the Magistrate, have also been admitted by this witness during her cross-examination, as has been admitted by PW-8 in her evidence. Had this witness been to the polling station, she would definitely have asked the persons present there, as during the time when this witness stated to has in the polling station, other persons were there, which is evident from the statements of other PWs as discussed above. Therefore her testimony does not inspire the confidence of the Court and not found to be reliable and trustworthy.
(xliv) Shri Bikash Chubey (PW-10) has also filed the evidence-on-affidavit, the contents of which is also exactly the same as that of PW-8 and PW-9, except the time of visiting the polling station. This witness also during cross-examination has admitted that at 8.30 AM when he went to Manik Dutta L.P. School (Madhya) there were about 200/300 persons present there and when he enquired about the polling station they could not say anything. This witness has further deposed that his father cast his vote in the said election in Manik Dutta L.P. School (Madhya). However, he did not discuss with anybody about his inability to cast his vote. PW-10 has further admitted that he supports Congress Party in the said election and went to the election petitioner and told him that whatever help is necessary, in the election petition, he will extend. Same discrepancy about the date of swearing of affidavit as well as the date when the identifying advocate has also put his signature so also the date of affirmation, as has been admitted by PW-8 and PW-9 during cross-examination, has also been admitted by this witness. The evidence of such person, whose the evidence-on-affidavit, creates doubt in the mind of the Court about its due execution because of the aforesaid discrepancies, cannot be accepted. The story put forward by this witness about his going to Manik Dutta L.P. School (Madhya) to cast the vote and because of not setting up of polling station in Manik Dutta L.P. School he could not cast his vote, is not at all believable, as it is not likely that he would not enquire with the persons present there about the non-existence of the Polling Station. The version of this witness cannot be believable in view of the statement of PW-4 to the effect that on reaching Manik Dutta L.P. School (Madhya) at about 9 A.M. he came to know about the setting up of the Polling Station in Chiring Gaon Railway Colony L.P. School.
(xlv) Shri Deep Rabi Das (PW-11), a voter has also filed his evidence-on-affidavit, which is exactly the same with that of the PW-8, PW-9 and PW-10 except the time. According to him, he went to Manik Dutta L.P. School (Madhya), at about 7 A.M. This witness was also thoroughly cross-examined by the respondent No. 2, during which he has admitted that he does not know what has been written in the affidavit. He has further stated that he even does not know the signature of other persons contained in the said affidavit, i.e. the signature of the identifying Advocate as well as the Magistrate, before whom the affidavit was sworn. But subsequently, he has stated that the contents of the affidavit was read over and explained to him by the Advocate. However, he has stated that he did not discuss anything before preparing the affidavit. This witness has also admitted the discrepancy relating to the date appearing in the affidavit, i.e. though he put his signature on 13.12.2006, the identifying Advocate put his signature on 14.12.2006 so also the Magistrate. Such evidence-on-affidavit does not inspire the confidence of the Court, because of such discrepancies and also the admission of this witness that he does not know what has been written in the affidavit and also that before the preparation of the affidavit he did not discuss anything with the person, who prepared it.
(xlvi) As discussed above, it appears from the evidences-on-affidavits of PW-5, PW-6, PW-7, PW-8, PW-9, PW-10 and PW-11 that the contents of the affidavit are exactly same except the time when they stated to have visited Manik Dutta L.P. School (Madhya) for casting vote. All these witnesses have stated that they put their signatures on 13.12.2006 but the identifying Advocate put his signature on 14.12.2006 so also the learned Magistrate before whom the affidavits are sworn. It, therefore, appears that they were never present before the learned Magistrate when the learned advocate identified them and when the learned Magistrate put his signature. Such evidence-on-affidavit, therefore, cannot be accepted, as they were not present when oaths on the affidavits were administered. There was no solemn affirmation before the Magistrate. The evidence of these witnesses namely, PWs- 5 to PW-11 for this reason, apart from the discussion made above, cannot therefore be relied upon for the purpose of holding that they went to the polling station for casting their vote on the date of poll but could not do so because of non-availability of polling station at Manik Dutta L.P. School (Madhya). That apart, none of the witnesses has stated that persons numbering about 200/300 also could not cast their vote because of non-availability of the polling station in Manik Dutta L.P. School. The difference of votes polled by the returned candidate and the election petitioner being 175, the burden lies on the election petitioner to prove that significant numbers of voters could not cast their votes because of setting up of polling station in a wrong place and subsequent shifting, thereby materially affecting the result of the election petitioner, which burden the election petitioner could not discharge by adducing any cogent and reliable evidence.
(xlvii) The Exhibit-3, complaint dated 03.04.2006, on which the election petitioner has placed reliance to prove that a large number of voters were deprived from casting their votes because of the setting up of the polling station in a wrong place, cannot also be relied upon, as there is even no whisper in the said document about deprivation of any voters from casting their votes because of such setting up of polling station in a wrong place. The said document has absolutely no mention about subsequent shifting of polling station to the notified place and also do not have any allegation that because of subsequent shifting any voters were deprived from casting votes. Filing of such document is also doubtful as the P.W. 2 during cross-examination has stated that he did not personally filed the same, though in examination-in-chief he claimed to do so and the person, who allegedly filed the same has not been examined. The Returning Officer (P.W. 12) has also deposed about non-filing of the said document. The said document (Exhibity-3) is also not admissible in evidence, being the carbon copy, as the election petitioner did not take any steps to call for its original from the custody of the returning officer in whose office, the same was allegedly filed. Admittedly, the election petitioner prior to 12.05.2006 (Exhibit-4) did not raise any objection relating to such initial setting up of polling station and subsequent shifting. Even the said document (Exhibit-4) filed by the election petitioner before the Returning Officer has no mention that any voter was deprived from casting their votes because of such setting up of the polling station in a wrong place and subsequent shifting. The allegation of the deprivation of a large number of voters from casting their votes has therefore, not been supported by the said document, as had there been such deprivation, the said fact would have definitely been reflected in Exhibit-4, which was filed after the declaration of the result of the election. Hence, the allegation of such deprivation is nothing but after thought. It also unlikely that when the distance between the two schools is about 440 feet and visible from each other, the voters who came to cast the vote in Manik Dutta L.P. School (Madhya) would go back without casting their votes in Chiringgaon Railway Colony L.P. School, before it was shifted from the said school to Manik Dutta L.P. School (Madhya) and also after its shifting to the said notified place, i.e. Manik Dutta L.P. School (Madhya). The election petitioner has also not examined any of the persons who were present in the booth set up by the Congress Party in front of Manik Dutta L.P. School (Madhya) to prove that the voters left the place without casting their votes having not found the polling station in Manik Dutta L.P. School (Madhya). On the other hand, it is in the evidence that the voters were present and cast their vote in Chiringgaon Railway Colony L.P. School and at the time of shifting to Manik Dutta L.P. School (Madhya), i.e. the notified place, the voters were in queue and they were informed by the election officials about shifting and requested them to go to Manik Dutta L.P. School (Madhya) and cast their votes.
(xlviii) On the other hand, the respondent No. 2/returned candidate has adduced evidence to prove that no voters were deprived from casting their votes. According to R.W. 1, no voters were deprived from casting their votes because of the initial setting up of the polling station in a wrong place and subsequent shifting to the notified place. During cross-examination by the election petitioner, no material contradiction could be brought out. This witness, however, during such cross-examination has admitted that he never visited the said polling station No. 124 on the date of poll and his statement is based on the information supplied by Smti Sabitri Das.
(xlix) Smti Sabitri Das (RW-2), one of the Polling Agents appointed by the Election Agent of the respondent No. 2 in respect of the polling station No. 124 has stated that no voters, because of initial setting up of the polling station in a wrong place and subsequent shifting to the notified place, were deprived from casting their votes. She has further stated that at the time of closing the poll in the notified place, no voters were waiting. The election petitioner, though thoroughly cross-examined this witness no contradiction could be brought out. During cross-examination, she has re-iterated her statement made in the examination-in-chief but has stated that to her knowledge before setting up of the polling station in Chiringgaon Railway Colony L.P. School no notice was give. This witness, during cross-examination has further stated that about 100-150 voters cast their votes prior to shifting of the polling station to the notified place, i.e. between 7 A.M. to 9.30 A.M. and around 50-60 voters who were in Chiring Gaon Railway Colony L.P. School at the time of shifting were asked to go to Manik Dutta L.P. School (Madhya).
(l) RW-3, Shri Mantu Das, in his evidence-on-affidavit has stated that on the date of poll, he being a BJP worker set up the booth out side Manik Dutta L.P. School (Madhya) and similar booths were also set up by Congress Party as well as the AGP party and after a little while, he came to know from the discussion amongst the Congress workers that the polling station No. 124 has been set up at Chiring Gaon Railway Colony L.P. School instead of Manik Dutta L.P. School (Madhya). He being the person present in the booth set up by the party assisted the voters to find out their serial numbers in the voters list and informed the voters about setting up of the polling station in Chiring Gaon Railway Colony L.P. School, as has been done by the workers of the other parties including the Congress Party. He has further stated that after shifting of the polling station to Manik Dutta L.P. School (Madhya), he and also the workers of the Congress Party present in their respective booths set up in front of Manik Dutta L.P. School (Madhya), informed the voters about such shifting and requested to go to the said school for casting their votes. The election petitioner, though has cross-examined this witness also, no material contradiction could be brought out. During cross-examination, he has stated that he was seating in the booth set up by BJP near Manik Dutta L.P. School (Madhya) from 7 A.M. to 4 A.M. and was issuing slips to the voters indicating their serial numbers in the voters list. This witness, however, could not say how many persons cast their votes between 7 A.M. to 10 A.M. The election petitioner, however, did not cross-examined this witness relating to his statement about assisting the voters by him and by workers of Congress Party present in the respective booths and informing them about the initial setting up of the polling station in Chiring Gaon Railway Colony L.P. School and also after its shifting to Manik Dutta L.P. School. Such statements of this witness, therefore, remain unrebutted.
(li) The Presiding Officer of No. 124 polling station, Shri Durga Prasad Gogoi (RW-4) has supported the version of the Returned Candidate/respondent No. 2 that because of such initial setting up and the subsequent shifting of the polling station, no voters left the place without casting their votes. In his examination-in-chief he has deposed that after the decision was taken to shift the polling station to the notified place, he and the polling officials informed the voters, who were in queue to cast their votes, about the shifting of such polling station and requested them to go to Manik Dutta L.P. School (Madhya) to cast their votes, which is a little distance away. During cross-examination he has further stated that the poll in Chiring Gaon Railway Colony L.P. School started at 7 AM and nobody raised any objection relating to the setting up of the Polling Station in the said school. During cross-examination he has however, stated that no notice was given about such shifting of the polling station to that effect. During cross-examination, this witness has further deposed that the pick hour of the polling as per his knowledge is between 10 AM to 1 PM. This witness, however, has not been cross-examined at all regarding his statement relating to the request made to the voters present in Chiring Gaon Railway Colony L.P. School to go to Manik Dutta L.P. School (Madhya) for casting votes.
(lii) Further it has come out in evidence that over all the percentage of poll in respect of No. 116 Dibrugarh Legislative Assembly Constituency was 67.23% and in polling station No. 124 out of 1050 registered voters 557 voters cast their votes, which constituted, about 53.8% of votes. From the above, it transpires that the difference of percentage of votes polled between polling station No. 124 and in the constituency as a whole is less than 14%. Therefore, even if it is taken that had the pooling station not been set up in the non-notified place initially, 160 more voters would have cast their votes (taking into account the difference of percentage of poll as stated above as well as the total number of registered voters in polling station No. 124, i.e. 1050). There is, however, no guarantee and even there is no pleading in the election petition that all these 160 voters would have cast their votes in favour of the election petitioner, though Section 83 of the Act requires pleadings of material facts and such pleadings play a significant in case of a challenge to an election (Gursewak Singh case (supra). Admittedly, there were 7 (seven) candidates in the fray, out of which 3 (three) candidates including the election petitioner, the respondent No. 2/returned candidate and another Dr. Kamini Ranjan Barua secured sizable number of votes in the said Polling Station. It appears from the final result sheet (Exhibit-L) that out of 557 valid votes polled in polling station No. 124 the election petitioner received 173 votes, the respondent No. 2/returned candidate received 190 votes and Dr. Kamini Ranjan Barua (AGP nominee) received 172 votes and other 4 (four) contesting candidates in all received 22 numbers of votes. Such 160 votes naturally would have distributed amongst the contesting candidates and would not have cast in favour of the election petitioner alone. Even if those were cast in his favour, the difference of votes polled by the election petitioner and the returned candidate being 175, the non-compliance of the provisions of Section 25 and 56 of the Act would not materially affect the result of the election of the returned candidate. The contention of the learned Sr. Counsel for the election petitioner that following the judgment passed in Tazuddin Ahmed (supra) the election of the returned candidate may be set aside, could not be accepted as in that case also the Court has held that the infraction of law would not automatically render the election of the returned candidate void but the election petitioner has to prove that such infraction of law has materially affected the result of the election. In that case, the Court upon consideration of the facts proved has held that the infraction of law materially affected the result of the election. The mere fact that No. 124 polling station was set up in a non notified place, which is about 100 Mtrs. away from the notified place, it is not possible to conceive that any voter could have any difficulty in finding the polling station to cast their votes. On the other hand, as discussed above, there is evidence on record (deposition of RW-3) that the Congress workers manning the booth near Manik Dutta L.P. School (Madhya), i.e. the notified place led the voters, came to that place to cast their votes, to the place in which the polling station in fact was set up initially.
(liii) For the aforesaid reasons, the questions as to whether the evidence on affidavit filed by the PWs-5 to 11 are admissible or not because of the oath administered by the Additional Deputy Commissioner and not by the Oath Commissioner of the High Court and such defects whether can be cured subsequently, have not been gone into in the present case. Hence, the decision cited by the learned Counsel for the parties in Chhotan Prasad Singh and G. Mallikarjunappa (supra) have not been discussed.
(liv) In view of the aforesaid discussion, it is not possible to hold that any voters left the place without casting their votes because of such setting up of polling station in question at a non-notified place, i.e. Chiring Gaon Railway Colony L.P. School, and its subsequent shifting to the notified place, i.e. Manik Dutta L.P. School. The election petitioner has failed to prove that the non-compliance of the provision of Section 25 and 56 of the Act has materially affected the result of the returned candidate.
35. ISSUE NO. 5 : Whether the election petitioner is entitled to the relief claimed in the election petition.
In view of the aforesaid discussion and the findings recorded, I am of the view that the election petitioner is not entitled to the relief as claimed in the election petition. Hence, the election petition is dismissed with cost of Rs.2000/- to be paid to the respondent No. 2/Returned Candidate.