1. The election petitioner, Atul Bora, challenges, with the help of this election petition made under section 80 read with section 80A of the Representation of the People Act, 1951 ('the HOP Act'), the declaration of the returned candidate, Akon Bora, from No. 52 Dispur Legislative Assembly Constituency ('the LAC'), as void under the mandates of the ROP Act and seeks order for fresh poll in Polling Station Nos.164 and 196 of the said LAC.

2. The material facts, leading to this election petition, may be set out as under:

(i) Altogether 12 candidates contested the said election, which was held on 3rd April, 2006. While the election petitioner, Atul Bora, was the nominee of Trinamool Gana Parishad, the respondent, Akon Bora, was the nominee of the Indian National Congress. The counting of votes took place on 11.5.2006 and after the counting, result was declared on 11.5.2006 itself and, in terms of the declaration so made, the petitioner had secured 51,648 valid votes as against 52,461 votes, which the respondent had secured. The respondent was declared to have been elected as the returned candidate from the said LAC having secured 813 more votes than the election petitioner, the election petitioner being the candidate, who had secured next highest number of votes. '

Case of the election petitioner

3. (i)Counting began, on 11.5.2006, at 8 a.m., at two halls of Cotton College, namely, Hall Nos.3 and 4. After completion of 13 rounds of counting, the control unit, used in Polling Station No. 164, was brought to table No.9 of Hall No. 3, where Jiban Bora was the counting agent of the election petitioner, the seal of the control unit was opened and, thereafter, when result button was pressed by perforating the paper seal fixed under rule 49E of the Conduct of Election Rules, 1961, ('the Rules of 1961'), the control unit showed the number of candidates as 12. Thereafter, the control unit malfunctioned and could not show any further result. The Returning Officer was informed and as per his direction, counting of votes, in respect of the remaining EVMs, continued. At about 3.30 p.m., after finishing 21st round, when the counting was about to end, the counting agent of the election petitioner enquired about the control unit of Polling Station No. 164. To his shock and surprise, Jiban Bora did not find the said control units inside the Hall No. 3. It was only at that stage that Jiban Bora was told by the polling officials that the said control units had been taken away outside the counting hall to an undisclosed location. The control units were taken out without informing the election petitioner or his election agent, Dharmeswar Bora, or his counting agent, Jiban Bora, who were present at the place of counting and that too, without resealing the said control units. Later on, the officials posted, in the counting hall, started to say that the said control units had been taken to the District Election Officer's room.

(ii) Coupled with the above, after completion of 16th round of counting, while counting process was on in Hall No.4, the control unit of Polling Station No. 196, which was brought to table No.3, also started malfunctioning. This control unit too, after showing the number of candidates as 12, failed to show result and the Returning Officer was informed about the malfunctioning of the said control unit too and the Returning Officer said that after completion of 20th round of counting, the control unit of Polling Station No. 196 would be opened. While 18th round of counting was going on, the Returning Officer brought two engineers, but the engineers could not fix the control unit of Polling Station No. 196 and the control unit was kept at the Returning Officer's table and, subsequently, without even informing the election petitioner, his election agent or his counting agent, the control unit of Polling Station No. 196 was taken outside the counting hall No.4 without resealing the control unit. Thus, both the control units of Poll Station

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