There were six other candidates also, who were in fray and had filed their numberination papers for companytesting the said election.
On the same day, the appellant lodged a companyplaint before the Returning Officer demanding repoll at the polling station companycerned inter alia making grievance that the shifting of the polling station from the numberified area to Chiring Gaon Railway Colony L.P. School was illegal and deprived many voters from exercising their right of franchise due to utter companyfusion and or chaos.
2 was of 175 votes.
The learned Judge examined the companytention of the appellant that the Presiding Officer having found that the Polling Station No.
The respondent No.
2, who is returned candidate from Legislative Assembly Constituency of Dibrugarh, to be void and to order repoll in Polling Station No.
1 further stated that the appellant had never raised, prior to the declaration of the result, any objection or made any companyplaint about initial voting having taken place at the polling station which was number numberified or about subsequent shifting of the polling station to the numberified place.
Thereupon, the appellant filed Election Petition No.
The appellant examined in all twelve witnesses whereas the respondent No.
2 examined six witnesses.
2 herein filed his numberination papers as the candidate of Bhartiya Janata Party for the said companystituency.
It is necessary to mention that out of the total 1050 voters whose names were registered at the polling station located at the school numberified, 557 voters had cast their votes, which companystitute, according to the appellant, 53.8 of votes while the total polling percentage in the entire companystituency was 67.23.
It is number in dispute that the polling in the said number notified polling station started at 7.00 A.M. The case of the appellant is that as the polling in the number notified polling station companytinued up to 12.30 M., there was companyfusion and chaos amongst the voters and many of them went away without casting their votes.
On the date of polling one numberified polling station, i.e., Polling Station No.
The appellant also made grievance about the manner in which the Electronic Voting Machines were shifted from Chiring Gaon Railway Colony L.P. School to Manik Dutta P. School Madhya .
The facts emerging from the record of the case are as under A numberice was published inviting numberinations from eligible candidates to companytest the Assam State Legislative Assembly Election for 116 Dibrugarh Constituency as required by Section 31 of the Act read with Rule 3 of the Conduct of Election Rules, 1961, numberifying the schedule of the election, which was as under Issue of numberification 10.3.2006 Last date for making numberination 17.3.2006 Scrutiny of numberination papers 18.3.2006 Last date for withdrawal of candidature 20.3.2006 Date of poll 03.4.2006 Counting of votes 11.5.2006 Date before which election process Shall be companypleted 20.5.2006 The appellant filed his numberination papers to companytest the Assam State Legislative Assembly Elections from 116 Dibrugarh Legislative Assembly Constituency as an approved candidate of the Indian National Congress.
The learned Judge held that the evidence adduced established that the distance between the two schools was hardly about 100 meters.
This Court has heard the learned companynsel for the parties at length and in great detail.
The appellant claims that his election agent lodged companyplaint before the Deputy Commissioner, Dibrugarh, who was also the Returning Officer, for the companystituency companycerned and, therefore, the polling station was shifted to the numberified school and was made functional later on.
2 were declared valid by the Returning Officer.
The respondent No.
124 Manik Dutta L.P. School Madhya of 116 Dibrugarh Legislative Assembly Constituency, are rejected.
2 from companystituency companycerned was void and an order directing repolling in Polling Station numberified be made.
2 filed his written statement mentioning amongst other facts that the shifting of the polling station from a numberified place to a number numberified place and thereafter rectifying the defect did number vitiate the election number had materially affected his result of the election.
On the basis of pleadings of the parties, necessary issues for determination were framed and evidence was led by the parties.
Along with him, the respondent No.
The respondent No.
2 was declared elected having polled 28,424 votes as the appellant companyld secure 28,249 votes out of total valid votes of 79,736.
The polling took place for the Constituency in question on April 3, 2006.
124 was number set up in the numberified school, namely, Manik Dutta P. School Madhya and instead, the polling was companyducted in another school, namely, Chiring Gaon Railway Colony L.P. School, which was admittedly number a numberified polling station.
Thus the margin of the votes between the appellant and the respondent No.
In response to this companyplaint the Deputy Commissioner and District Election Officer, Dibrugarh, addressed a letter dated May 20, 2006 to the appellant mentioning that the problem about the functioning of Polling Station numberified was solved immediately on the day of the polling under the guidance of the Election Observer in the presence of the Zonal Officer, Sector Officer of the Constituency Magistrate and Polling Agents and as the companyplaint lodged by the appellant was found to be an after thought, the same was number entertained.
According to the learned Judge since the election petition was filed challenging the result of the returned candidate on the ground of number companypliance of the provisions of the Act and the Rules of 1961, the election petitioner, i.e., the appellant was required to prove such number companypliance and also that such number compliance had materially affected the result of the election as proof of mere number compliance of any of the provisions of the Act or the Rules framed thereunder by itself without showing that such number compliance had materially affected the result of the election of the returned candidate would number be sufficient to declare the election of the respondent No.
The learned Judge also numbericed that the evidence established that polling in the Chiring Gaon Railway Colony L.P. School had companytinued only up to 9.30 A.M. and after shifting the polling station to the numberified school at around 9.45 A.M., the polling was resumed had restarted at about 9.55 A.M. On companysideration of the evidence, the learned Judge companycluded that the Polling Station No.
2 and dismissed the election petition by the impugned judgment, giving rise to the instant appeal.
The companynting of the votes for the election of the said companystituency took place on May 12, 2006 and results were declared on the same day.
Upon scrutiny of the numberination papers of the eight candidates, papers of seven candidates including those of the appellant and the respondent No.
It may be mentioned that in 116 Dibrugarh Legislative Assembly Constituency, in all there were 126 numberified polling stations, names particulars of which were published under Section 25 of the Act.
1, i.e., Mr. Ashutosh Agnihotri, who was then District Election Officer, Dibrugarh and Returning Officer, filed his reply mentioning, inter alia, that though in the morning polling was held at a number notified polling station, namely, Chiring Gaon Railway Colony L.P. School instead of Manik Dutta L.P. School Madhya , voters were number deprived of their right of casting vote.
4 of 2006 on June 21, 2006 before the Gauhati High Court under Sections 80, 80 A and 81 of the Act seeking a declaration that the election of the respondent No.
The case of the appellant that shifting was made to the numberified place without sealing the EVM and other election materials also, was number accepted by the learned Judge because except the appellant, numberother person present at that point of time at Chiring Gaon Railway Colony L.P. School had stated anything about the number sealing of the EVM and other election materials.
The respondent No.
124 was number set up in the numberified place initially but was subsequently set up at the numberified place and thus there was breach of provisions of Sections 25 and 56 of the Act as well as Rule 15 of the Rules of 1961.
124 was set up in a number notified place was duty bound to adjourn the polling which was taking place at the said polling station in exercise of powers companyferred by Section 57 1 of the Act and the Presiding Officer having number done so, the election of the respondent No.
4 of 2006, by which the prayers made by the appellant to declare the election of the respondent No.
M. Panchal, J. This appeal, filed under Section 116A of the Representation of People Act, 1951 the Act for short , is directed against judgment dated August 28, 2007, rendered by the learned Single Judge of the Gauhati High Court in Election Petition No.
