EP 4/2006 BEFORE HON’BLE JUSTICE B P KATAKEY A public notice of intended election was published on 04.03.2006 by the Returning Officer of No.116 Dibrugarh Legislative Assembly Constituency, invitin g nominations of candidates for such election as required under Section 31 of th e 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 deliv ered, 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 candidature : 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 Nation al Congress; the respondent No.2, the approved candidate of Bharatiya Janata Par ty as well as 6 other persons filed their nomination papers to contest from the said constituency. Upon scrutiny, the nomination papers submitted by one candida te Sri Banikanta Gogoi was rejected declaring his nomination as invalid, the sam e being not in order and the nomination papers submitted by the remaining 7 cand idates were found to be in order and declared valid by the Returning Officer. Po lling was thus held on 03.04.2006 and after counting of votes on 11.05.2006, res ult was declared declaring the respondent No.2 elected from the said No.116 Dibr ugarh Legislative Assembly Constituency, he having secured highest number of val id votes polled. The respondent No.2/returned candidate secured 28,424 and the e lection 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 el ection, by presenting this election petition under Section 80, 80 A and 81 of th e 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 Legislativ e Assembly Constituency, on the ground that on the day of poll, i.e. on 03.04.20 06, one notified polling station being No.124 was not set up in the notified sch ool, namely Manik Dutta L.P. School (Madhya) and instead was set up in another s chool, namely Chiring Gaon Railway Colony L.P. School, without notifying the sam e and, thereafter, shifted to the notified school, namely Manik Dutta L.P. Schoo l (Madhya), without issuing any notification and without even intimating the ele ction 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 f rom 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 c andidate 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 t he 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 a lso filed his written statement. In the said written statements filed by the Ret urning 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 Ra ilway Colony L.P. School, are situated in close proximity, the election official s on the day prior to the date of poll wrongly set up the polling station in Chi ring 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 obs erver ), the polling station was restored to its notified location at Manik Dutt a L.P. School (Madhya) at about 9.45 A.M. after observing all formalities and po lling started in the said polling station at 9.55 A.M. It has further been conte nded 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 cast ing their votes in the said polling station and that the election petitioner nev er prior to the declaration of the result, i.e. on 11.05.2006, raised any object ion 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 p olling station was wrongly set up in Chiring Gaon Railway Colony L.P. School whe re the voters casted their votes from 7 A.M. to 12.45 P.M. and, thereafter, it w as shifted to the notified school, namely Manik Dutta L.P. School (Madhya), with out observing the required formality such as sealing of Electronic Voting Machin e (EVM) and other materials. 5. On the basis of the pleadings of the parties and upon hearing th e learned counsel, the following issues were framed:- 1. Whether the Election Petition is maintainable in present form and whethe r 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 concer ns the returned candidate? 4. Whether due to the sudden change and shifting of polling stations a larg e number of voters were deprived of their right to cast their votes, which has m aterially affected the result of the election of the returned candidate/responde nt 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 call ed 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 Ret urning Officer pursuant to the order passed by this Court. The election petition er 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 Pu spa 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 candidat e. 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/returned candidate. Since the ele ction petitioner did not examine any other person as his witness, the evidence o f 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 electio n 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 ex amined 7 (seven) witnesses, which includes the non-official witnesses, who have filed their evidence-on-affidavit, namely the respondent No.2 himself (RW-1), Sm ti Sabitri Das (RW-2), who was the polling agent of the respondent No.2 in No.12 4 polling station and Shri Mantu Das (RW-3), a BJP worker, as well as four offic ial witnesses namely, Sri Durga Prasad Gogoi, the Presiding Officer of Polling S tation 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 e lection 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 exhi bited: Ext. 1: Election petition filed by the election petitioner. Ext. 2: Challan depositing a sum of Rs. 2,000/- (Rupees two thousand) by the ele ction petitioner. Ext. 3: Carbon copy of the complaint dated 3.4.2006 of Dugdha Chandra Go goi, PW 2, Election Agent of the election petitioner (under objection from respo ndent No. 2) Ext. 4: Application filed by the election petitioner before the Deputy C ommissioner- cum- Returning Officer, 116 Dibrugarh Legislative Assembly Constitu ency, dated 12.5.2006. Ext. 5: Reply of the Deputy Commissioner-cum- District Election Officer, Dibruga rh 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 N o. 116 Dibrugarh Legislative Assembly Constituency. Ext. D: List of Polling Agents of Polling Station No. 124 under No. 116 Dibrugarh Legislative Assembly Constituency. Ext. E: Application in Form 10 submitted by the Election Agent of the re spondent No. 2 for appointment of Smti Sabitri Das as Polling Agent in respect o f No. 124 Polling Station. Ext. F: Application in Form 10 submitted by the Election Agent of respon dent No. 2 for appointment of Shri Rakesh Singh as Polling Agent in respect of N o. 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 co nsenting 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 Pollin g Station No. 124. Ext. N: Application dated 8/8/06 filed by respondent No. 2 before the Ci rcle Officer, East Circle Dibrugarh, for measurement of distance between Manik D utta 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 tw o 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 el ection petitioner in respect of No. 124 Polling Station. 8. Heard Mr. A. Mazumdar, the learned senior counsel for the electi on 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 behal f of the respondent No.1. Perused the pleadings of the parties and the evidence s 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 iss ue 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 particul arly the evidence of the Returning Officer (PW-12), Presiding Officer (RW-4), Co nstituency Magistrate (RW-5) and the Central Observer (RW-6) that the Polling St ation 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 t hose witnesses Mr. Mazumdar has further submitted that the said official witness es have in their deposition admitted that no notification or order was issued be fore setting up the polling station in the non-notified place as well as prior t o shifting to the notified place, subsequently and without informing the voters. Mr. Mazumdar referring to the provision of section 25 of the Act further submit s that as the Polling stations are to be notified as per direction of the Electi on 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 posi tion of fact that No. 124 Polling Station was not set up in the notified place b ut 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 2 5 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 learne d senior counsel further contends that such polling in the non-notified place ca nnot be the valid poll and therefore the entire polling in respect of No.124 Pol ling Station is vitiated. It is, therefore, submitted that the infraction of pro vision of Section 25 of the Act has been established. It has further been submit ted by Mr. Mazumdar that after shifting of the Polling Station in question to th e notified place i.e. Manik Dutta L.P. School (Madhya), the polling re-started i n 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 re spect of the said Polling Station is to be ordered. 10. Referring to the provision of Section 57 of the Act, it has furt her 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 Of ficer 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 app roval of the Election Officer, which having not been done in the instant case, v iolates 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 Sta tion has been committed, the Returning Officer ought to have informed the Electi on Commission about such error/irregularities in procedure, so that the Election Commission in exercise of power conferred by Section 58(2) of the said Act coul d have pass appropriate order. According to the learned senior counsel, the Pres iding Officer as well as the Returning Officer, therefore, have violated the pro visions of Section 58 of the Act. 12. Mr. Mazumdar has further contended that even if the version of t he respondents that the polling re-started in the notified place at 9.55 a.m., a fter shifting, is taken to be correct, then also the polling in that Polling Sta tion is vitiated, because of non-starting of the poll at the time fixed by the E lection 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 th e poll in a particular polling station and in the instant case in the Polling St ation No. 124, after it was shifted to the notified place i.e. Manik Dutta LP Sc hool (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 con ducted in the non notified place i.e. Chiringaon Railway LP school cannot held t o be valid poll and as the polling in notified place after the polling station w as shifted having been conducted without making any arrangement as required unde r 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 fu rther been submitted that since the number of voters registered in the said poll ing 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 ele ction 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. Mazumda r further submits that as there was no voting in the eye of law, in respect of p olling station No. 124, presumption is to be drawn that it has materially affect ed the result of the election. Referring to the decision of the Apex Court in Sa ntosh Yadav vs Narender Singh reported (2002) 1 SCC 160, the learned senior coun sel submits that such presumption can be drawn in the case in hand also. 14. Placing reliance on the evidences of the witnesses examined by t he election petitioner, it has further been submitted that it is evident from th e deposition of the witnesses that a large number of persons could not cast thei r 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 mat erially affecting the result of the election of the returned candidate. It has f urther been submitted that there being no separate accounts of vote polled maint ained, while the Polling Station was set up in Chiringgaon Railway Colony L.P. S chool, having regard to the fact that only 572 numbers of votes were polled in t he Polling Station, against the total registered voters of 1005, both when it wa s 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 r eturned candidate (Respondent No. 2), which was 175, the result of the election of the returned candidate must has been materially affected. Mr. Mazumdar referr ing 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 may be set aside by declaring the polling in respect of No.124 Polling Station void and the Election Commission may be directed to condu ct re-poll in respect of the said Polling Station and to declare result of the e lection 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 Vs. Dhaniram Talukdar, (AIR 1959 Assam 128), Bulia Ram Vs. Ch oudhury Multan Singh, (AIR 1960 Punjab 45) and on an Apex Court judgment in Hari Bishnu Kamath Vs. Ahmed Ishaque & ors (AIR 1955 SC 233). 16. The learned Senior counsel for the respondent No.2/returned cand idate, 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 Ele ction petitioner, Mr. Bhattacharyya, learned Senior counsel appearing for the re spondent 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 an y rule or orders made thereunder and that such non-compliance has materially aff ected the result of the election of the returned candidate. According to the lea rned Senior counsel, the election petitioner, though in the election petition ha s pleaded that there is non-compliance/violation of the provisions of the Act an d the 1961 Rules, has failed to substantiate such plea and hence the election pe tition 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 Mani k 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 tha t 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 i nfraction of Section 25 of the said Act. 18. Referring to clause 9.4 of the Handbook on which the learned Sen ior 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 b y 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 sta tion to the notified place as instructed by the Central Observer. Therefore, acc ording to Mr. Bhattacharyya there is even no violation of clause 9.4 of such gui delines issued by the Election Commission. 19. Referring to the pleadings in the election petition, it has furt her been submitted by the learned Senior counsel that there is absolutely no ple adings in the election petition regarding the violation of the provisions of Sec