TAZUDDIN AHMED Vs. DHANIRAM TALUKDAR
LAWS(GAU)-1958-8-7
HIGH COURT OF GAUHATI
Decided on August 28,1958

Tazuddin Ahmed Appellant
VERSUS
Dhaniram Talukdar Respondents


Referred Judgements :-

VASHIST NARAIN SHARMA VS. DEV CHANDRA [REFERRED TO]
HARI VISHNU KAMATH VS. AHMAD ISHAQUE [REFERRED TO]


JUDGEMENT

G. Mehrotra, J. - (1.)THIS is an appeal against the decision of the Election Tribunal, setting aside the election of the appellant. The appellant and the respondent stood as candidates for Tarabari - -L. A. 41 constituency in the Kamrup district in the last general election to the Assam Legislative Assembly held on 6 -3 -1957. The respondent was a nominee of the Congress party and the appellant was the nominee of the Proja Socialist Party. The results were admittedly declared on 9 -3 -1957 and the appellant was declared to have secured 12759 votes and the respondent got 12535 votes. The appellant therefore leads by a majority of 224 votes. The results were duly published in the Assam Gazette Extra Ordinary dated 29 -3 -1957.
The respondent also claimed to be an elector of the Barpeta constituency from Barpeta town. The respondent thereafter brought the present petition challenging the election of the appellant inter alia on the ground that due to corrupt and irregular practice committed by the opposite party and his agents extensively throughout the constituency, the results of the election were materially affected and that there were some irregularities committed due to the non -compliance of the mandatory provisions of law which materially affected the results of the election. The election of the returned candidate was thus liable to be set aside. It was also claimed by the respondent that he should be duly declared elected. A number of irregularities and non -compliances with the mandatory provisions were alleged by the respondent in his petition and corrupt practice was asserted to the effect that the appellant made extensive communal propaganda.

(2.)THE Tribunal gave a finding against the respondent on the allegation of corrupt practices. He found that the respondent failed to establish that the appellant carried out extensive communal propaganda. As regards the alleged non -compliance of the mandatory provisions, the Tribunal held many of the irregularities alleged not to have been proved. The ground on which the election of the appellant has been set aside is mainly that in spite of the notified polling centre at Tangaliapara Lower Primary School in Tangaliapara village the votes were recorded at a different centre known as Chakabausi Lower Primary School of Chakabausi village which is in the Barpeta constituency.
This non -compliance, according to the finding of the Tribunal, resulted in materially affecting the results of the election. The Tribunal also refused to grant relief to the respondent that he should be declared as duly elected. The decision of the Tribunal is therefore mainly based upon the findings on issues Nos. 1, 2 and 7, which are as follows, in favour of the respondent:

"(1) Whether Tangaliapara Lower Primary School which was notified as the venue of polling station No. 27 was shifted from its original place to a place outside the Tarabari Constituency between the dates of such notification and the actual polling, and as such voting of the voters notified to be taken under that polling station was taken at Chakabausi Lower Primary School in the Barpeta constituency?

(2) Whether polling station No. 27 Tangaliapara Lower Primary School was shifted to another site without the previous sanction and approval of the Election Commission?

(7) Whether there were illegalities and irregularities in the conduct of the election? If so, was the result of the election materially affected thereby -

Issue No. 7 was partly found in favour of the respondent and partly against him. Cross -objection has also been filed on behalf of the respondent on the ground that the corrupt practices alleged by him have been established and that he was entitled under Section 101 of the Representation of the People Act to a declaration that he had been duly elected. Apart from filing the cross -objection the respondent has also tried to support the decision of the court below on the ground that the irregularities, other than those found in favour of him have also been established by evidence on record. We would however first deal with the appeal filed on behalf of the returned candidate. Mr. H. Goswami, who appears for the appellant has vigorously challenged the findings of the Tribunal, both on questions of fact and law. His first contention is that in the circumstances of the case, there is no non -compliance with the mandatory provisions of the Representation of the People Act or rules framed thereunder. The election was held at the polling station which was notified and there was no change of the polling station.

The parties knew that Tangaliapara Lower Primary School had been shifted to Chakabausi Lower Primary School at Chakabausi village. Secondly he contended that the respondent failed to prove that the results of the election have been materially affected by the change of the venue, if at all, of the polling. It is not disputed that the polling took place in a Lower Primary School in village Chakabausi. It is also not disputed that there was once a Lower Primary School in village Tangalianara. It is also admitted that the election for the Barpeta constituency was held in this very school earlier on 25 -2 -1957.

(3.)THE extracts of the list of polling stations which was published have been filed as Exhibits 4 (1) and 4 (2). In the polling centre list of L. A. 41 Tarabari, constituency - -in the column showing the site for polling centre Tangaliapara venture lower primary school has been mentioned and the serial number of this polling centre was shown as 27, the area comprising the polling centre as shown in Col. 5 of the list consists of villages Dihi, Lehi, Salmarapathar, Niz -poura and Tangaliapara.
In this list, the distance from the polling centre of the various villages comprising the polling centre are mentioned and the distance of Tangaliapara village is described as within polling centre. The description clearly points out that the Tangaliapara venture lower primary school mentioned as the polling centre for the constituency is the Tangaliapara lower primary school situate in the village Tangaliapara. This is also clear from the fact that the distances of the various other villages comprising this polling centre tally with the actual distance of these villages from the lower primary school in village Tangaliapara.

As we have already pointed out, it is not disputed that there was a lower primary school in village Tangaliapara, Another circumstance which points to the conclusion that in the notification publishing the list of the various centres, Tangaliapara lower primary school building situate in village Tangaliapara was different from Chakabausi lower primary school in village Chakabausi is the fact that in the list of the polling centres for Barpeta constituency, Chakabausi lower primary school is shown as the polling centre for that constituency and is described to be situated in village Chakabausi.

It is therefore clear that the notification contemplated two different primary schools as the polling centres for the two different constituencies. In the circumstances, when the polling admittedly took place in the lower primary school in village Chakabausi, it took place at a place different from the one mentioned in the list of the polling centres published under Section 25 of the Representation of the People Act.

One of the arguments contended for was that the election of Tarabari constituency was rightly held in the village primary school Chakabausi as in fact the Tangaliapara lower primary school was located in that building and may be that the mistake was committed in describing this very school in the list of the polling centres in Barpeta constituency as Chakabausi lower primary school and not as Tangaliapara lower primary school, though located in the building in the village of Chakabausi. We do not think that there is any force in this contention.

That the two notifications referred to two separate buildings is quite clear from the distances given in the list of the various villages comprising this polling station from the polling centre. The serial number of the polling centre has also been separately numbered. It cannot therefore be said that there was only a mistake of description in the polling centre list of Barpeta constituency and identity of the two polling centres was not different.



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