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 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 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, 80A 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, na