MARY RASUL Vs. ISAHAK ALI

JUDGEMENT

(1.) By means of the present election petition, the petitioner has called into question the election of the respondent No.1 to the Assam Legislative Assembly from the No. 44. Jania Legislative Assembly Constituency held on 10-5-2001.

(2.) The case of the election petitioner as pleaded in the petition, in short, is that by notification dated 31-3-2001, election to the Legislative Assembly of the State of Assam including No. 44 Jania Legislative Assembly Constituency was called with the following schedule :

(3.) According to the petitioner she was set up as a candidate from the No. 44 Jania L.A.C. by the Assam Gana Parasid (hereinafter referred to as AGP), a registered and recognised Political Party of Assam. To the said effect a latter dated 16-4-2001 was issued in favour of the petitioner. The further case of the petitioner is that thereafter Form A prescribed under the Election Symbols (Reservation and Allotment) Order 1968 (hereinafter referred to as the Symbols Order) was issued by the AGP showing the Party President Shri Prafulla Kumar Mahanta as the authorised person and the said form A was duly communicated to the Chief Electoral Officer, Assam as required under the provisions of the Symbols Order. Thereafter, according to the petitioner, the authorised person namely, Shri Prafulla Kumar Mahanta issued a Form B under the Symbols Order notifying the name of the petitioner as the approved candidate of the AGP in respect of the No. 44 Jania L.A.C. The petitioner has averred that in the aforesaid Form B issued in her favour there was no substitute candidate nominated by the party. As such the entries made in column 2 of the aforesaid form B were so inserted by mistake. The petitioner, it is claimed, on the basis of the Form B issued in her favour by the authorised person, submitted her nomination papers signed by one Rafiur Rahman as a proposer. The aforesaid nomination of the petitioner was submitted on 20-4-2001. The petitioner's further case is that on 23-4-2001 at about 2-15 p.m. one Newajul Haque also filed his nomination papers as a candidate set up by the AGP. It is stated that another Form B Notice was issued on 17-4-2001 setting up the aforesaid Nawajul Haque as the approved candidate of the AGP rescinding the earlier Form B issued in the name of the petitioner. Further by the subsequent Form B notice, the petitioner was set up as a substitute candidate. The aforesaid developments, according to the petitioner, were not communicated to her and she was not given any prior information about the changes made. The petitioner has further averred in the election petition that the nomination papers in respect of the No. 44 Jania L.A.C. were taken up for scrutiny and in the said scrutiny the nomination paper submitted by the election petitioner was rejected by the Returning Officer. According to the petitioner, the aforesaid rejection was made on the ground that the earlier Form B issued in favour of the election petitioner was rescinded by a subsequent Form B issued in the name of Shri Newajul Haque in which subsequent Form B, the petitioner was shown as the substitute candidate on the aforesaid basis, the Returning Officer took the view that as the nomination paper submitted by Shri Nawajul Haque was valid the same had to be accepted and these submitted by the election petitioner had to suffer rejection. The petitioner has alleged that the nomination papers submitted by her were improperly rejected and, therefore, the election of the respondent No. 1 is void under the provisions of S. 100(1)(c) of the Representation of people Act 1951 (hereinafter referred to Act of 1951). In the election petition, the legality and validity of paragraph 13-A of the Symbols Order inserted by the amendment made in the year 1999 has also been assailed as illegal, void and unconstitutional.