ATUL BORA Vs. AKAN BORA

JUDGEMENT

(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 (hereinafter referred to as 'the ROP Act'), the declaration of the returned candidate, Akon Bora, from No.52 Dispur Legislative Assembly Constituency (in short, '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:

(3.) ON the basis of the pleadings of the parties, the following issues were framed: "(i) Whether the election petition is maintainable in the light of the specific provisions contained in Sections 80A, 81, 83 and 100 of the Representation of Peoples Act, 1951? (ii) Whether the election petition is maintainable in its present form? (iii) Whether the election petition is barred by limitation? (iv) Whether the election petition falls under any of the grounds mentioned in Section 100 of the Representation of Peoples Act, 1951? (v) Whether the counting of the control unit of the Polling Station No.164 had to be suspended in the course of counting and during such interval, whether the said control unit was kept without resealing the same and was taken out of Hall No.3 without resealing and without informing the election petitioner, his election agent or his counting agent present at Hall No.3 violating thereby Rule 60, 66A read with Rule 56-C and 57-C of the Conduct of Election Rules, 1961? (vi) Whether the counting of control unit of Polling Station No.196 had to be suspended in the course of counting and during such interval, whether the said control unit was kept without resealing the same and was taken out of Hall No.4 without resealing the same and without informing the election petitioner, his election agent or his counting agent present at Hall No.4 violating thereby Rule 60, Rule 66-A read with Rule 55-C, 56-C and 57-C of the Conduct of Election Rules, 1961? (vii) Whether in course of counting, the ECIL engineers interfered with the circuits and wires of the control units of the Polling Station Nos.164 and 196 and whether such interference is in violation of the provisions relating to counting of votes in EVM and sealing of controlling units as provided in the Conduct of Election Rules, 1961? (viii) Whether the result of Form No.52 Dispur LAC, in so far as it concerns the returned candidate, has been vitiated and materially affected due to malfunctioning of the control units of the EVM used at Polling Station No.164 and Polling Station No.196 during the process of counting? (ix) Whether the purported results at Polling Station No196 could have been taken into account for declaration of results of No.52 Dispur LAC? (x) Whether it was necessary for the Election Commission to issue a direction for fresh poll/re-poll in respect of Polling Station No.164 and 196 under Section 58 of the Representation of Peoples Act, 1951, and whether, because of the Election Commission's failure to exercise this statutory powers, the result of the election, in so far as it concerns the returned candidate has been materially affected? (xi) Whether the result of the election from No.52 Dispur LAC, in so far as it concerns the returned candidate, has been vitiated and materially affected due to non-compliance of the provisions of the Representation of Peoples Act, 1951, and the Conduct of Election Rules, 1961, making the election of the returned candidate liable to be declared void? (xii) Whether the election of the respondent from No.52 Dispur LAC is required to be declared void under the mandates of the Representation of Peoples Act, 1951, and whether the election petitioner is entitled for a declaration of fresh poll at Polling Station Nos.164 and 196 of No.52 Dispur LAC? (xiii) To what other relief/reliefs, if any, the parties are entitled?"