Case: Kalyan Kumar Gogoi Vs Ashutosh Agnihotri and Anr.. Guwahati High Court
| Judges | B.P. Katakey, J. |
| Issue | Representation of the People Act, 1951 - Sections 25, 31, 56, 57, 58, 80, 80(A), 81, 100; Conduct of Election Rules 1961 - Rules 3, 15, 31 |
| Citation | 2007 (4) GLT 374 |
| Judgement Date | April 12, 2007 |
| Court | Guwahati High Court |
Judgment:
B.P. Katakey, J.
-
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.
-
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.
-
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.
-
On the basis of the pleadings of the parties and upon hearing the learned Counsel, the following issues were framed:
-
Whether the Election Petition is maintainable in present form and whether it has been filed, presented and verified in accordance with law?
-
Whether the Election Petition is liable to be dismissed for mis-joinder of the parties, i.e. respondent No. 1?
-
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?
-
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?
-
Whether the election petitioner is entitled to the relief claimed in the Election Petition?
-
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.
-
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...
To continue reading
Request your trial