IMPORTANT POINTS
Election of a returned candidate should not normally be set aside unless there are cogent and convincing reasons. The success of a winning candidate at an election cannot be lightly interfered with.
2. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible.

JUDGMENT

J.M. Panchal, J. —

This appeal, filed under Section 116A of the Representation of People Act, 1951 (“the Act” for short), is directed against judgment dated August 28, 2007, rendered by the learned Single Judge of the Gauhati High Court in Election Petition No. 4 of 2006, by which the prayers made by the appellant to declare the election of the respondent No. 2, who is returned candidate from Legislative Assembly Constituency of Dibrugarh, to be void and to order repoll in Polling Station No. 124 Manik Dutta L.P. School (Madhya) of 116 Dibrugarh Legislative Assembly Constituency, are rejected.

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

A notice was published inviting nominations from eligible candidates to contest the Assam State Legislative Assembly Election for 116 Dibrugarh Constituency as required by Section 31 of the Act read with Rule 3 of the Conduct of Election Rules, 1961, notifying the schedule of the election, which was as under: -

1. Issue of notification 10.3.2006

2. Last date for making nomination 17.3.2006

3. Scrutiny of nomination papers 18.3.2006

4. Last date for withdrawal of candidature 20.3.2006

5. Date of poll 03.4.2006

6. Counting of votes 11.5.2006

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 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 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