Kalyan Kumar Gogoi vs Ashutosh Agnihotri & Anr

2. The facts emerging from the record of the case are as under: -

7. Date before which election process Shall be completed 20.5.2006 The appellant filed his nomination papers to contest the Assam State Legislative Assembly Elections from 116 Dibrugarh Legislative Assembly Constituency as an approved candidate of the Indian National Congress. Along with him, the respondent No. 2 herein filed his nomination papers as the candidate of Bhartiya Janata Party for the said constituency. There were six other candidates also, who were in fray and had filed their nomination papers for contesting the said election. Upon scrutiny of the nomination papers of the eight candidates, papers of seven candidates including those of the appellant and the respondent No. 2 were declared valid by the Returning Officer. The polling took place for the Constituency in question on April 3, 2006. It may be mentioned that in 116 Dibrugarh Legislative Assembly 4 Constituency, in all there were 126 notified polling stations, names/particulars of which were published under Section 25 of the Act. On the date of polling one notified polling station, i.e., Polling Station No. 124 was not set up in the notified school, namely, Manik Dutta L.P. School (Madhya) and instead, the polling was conducted in another school, namely, Chiring Gaon Railway Colony L.P. School, which was admittedly not a notified polling station. It is not in dispute that the polling in the said non-notified polling station started at 7.00 A.M. The case of the appellant is that as the polling in the non-notified polling station continued up to 12.30 P.M., there was confusion and chaos amongst the voters and many of them went away without casting their votes. The appellant claims that his election agent lodged complaint before the Deputy Commissioner, Dibrugarh, who was also the Returning Officer, for the constituency concerned and, therefore, the polling station was shifted to the notified school and was made functional later on. It is necessary to mention that out of the total 1050 5 voters whose names were registered at the polling station located at the school notified, 557 voters had cast their votes, which constitute, according to the appellant, 53.8% of votes while the total polling percentage in the entire constituency was 67.23%. The counting of the votes for the election of the said constituency took place on May 12, 2006 and results were declared on the same day. The respondent No. 2 was declared elected having polled 28,424 votes as the appellant could secure 28,249 votes out of total valid votes of 79,736. Thus the margin of the votes between the appellant and the respondent No. 2 was of 175 votes.

On the same day, the appellant lodged a complaint before the Returning Officer demanding repoll at the polling station concerned inter alia making grievance that the shifting of the polling station from the notified area to Chiring Gaon Railway Colony L.P. School was illegal and deprived many voters from exercising their right of franchise due to utter confusion and/or chaos. The 6 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 L.P. School (Madhya). In response to this complaint 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 notified 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 complaint lodged by the appellant was found to be an after thought, the same was not entertained.

3. Thereupon, the appellant filed Election Petition No. 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. 2 from constituency concerned was 7 void and an order directing repolling in Polling Station notified be made.

4. The respondent No. 2 filed his written statement mentioning amongst other facts that the shifting of the polling station from a notified place to a non- notified place and thereafter rectifying the defect did not vitiate the election nor had materially affected his result of the election. The respondent No. 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 non-notified polling station, namely, Chiring Gaon Railway Colony L.P. School instead of Manik Dutta L.P. School (Madhya), voters were not deprived of their right of casting vote. The respondent No. 1 further stated that the appellant had never raised, prior to the declaration of the result, any objection or made any complaint about initial voting having taken 8 place at the polling station which was not notified or about subsequent shifting of the polling station to the notified place.

5. On the basis of pleadings of the parties, necessary issues for determination were framed and evidence was led by the parties. The appellant examined in all twelve witnesses whereas the respondent No. 2 examined six witnesses.

The candidate, who had secured the second largest number of votes, had filed election petition. The main ground of attack, which had succeeded in the Judicial Commissioner's Court, was that polling was disturbed because of numerous circumstances. These were that the polling centres were, in some cases, changed from the original buildings to other buildings of which due notification was not issued earlier, with the result that many of the voters who had gone to vote at the old polling booths had found no arrangement for voting and rather than going to the new polling station, had gone away without casting their votes. The second ground was that owing to firing by the Naga Hostiles, the voting at some of the polling stations was disturbed and almost no votes were cast. The third ground was that the polling hours, at some stations, were reduced with the result that some 26 of the voters, who had gone to the polling station, were unable to cast their votes.

7. Having held that there was non-compliance of the provisions of Sections 25 and 56 of the Act and Rule 15 of 1961 Rules, the learned Judge further examined the question whether such non- compliance had materially affected the result of the election. After noticing that 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, it was held that no presumption or any inference of fact can be raised that the result of the election of the returned candidate must have been materially affected and the fact that such infraction had materially affected the result of the election, must be proved by adducing cogent and reliable evidence. The learned Judge thereafter discussed the evidence on record and concluded that none of the witnesses had stated that a large number of voters had left the notified place without casting their votes because of non-availability of the polling facility at the notified place. In view of the above 13 mentioned conclusions, the learned Judge held that initially voting, which had taken place at the non- notified place, had not materially affected the election result of the respondent No. 2 and dismissed the election petition by the impugned judgment, giving rise to the instant appeal.

23.In the light of the above stated principles of law, this Court will have to decide the question whether it is proved by the appellant, beyond reasonable doubt that the result of the election, insofar as the respondent No. 2 is concerned, was materially affected because of change of venue of the polling station. The first attempt made by the appellant is to establish that about 200 to 300 voters had gone away without casting their votes when they found that no arrangements were made for casting votes at the notified place.

26.On the facts and in the circumstances of the case this Court is of the firm opinion that the learned Single Judge of the High Court did not commit any error in dismissing the petition filed by the appellant challenging the election of the respondent No. 2. Therefore, the appeal, which lacks merits, deserves to be dismissed.

27.For the foregoing reasons, the appeal fails and is dismissed. There shall be no order as to costs.

January 18, 2011.