SMT JIBONTARA GHATOWAR Vs. SRI SUNIL RAJKONWAR

JUDGEMENT

(1.) THE applicant, who is elected as Member of Assam Legislative Assembly Constituency from No. 115 Legislative Assembly Constituency, Moran, and whose election has been put to challenge in Election Petition No. 4/2011, has filed these applications under Order 6 Rule 16 and Order VII, Rule 11 of the of Code of Civil Procedure, 1908 (in short, "CPC) for striking out the pleadings in the election petition and for dismissal of the same for want of cause of action. The opposite party (hereinafter referred to as the election petitioner) filed the election petition under Sections 80 and 80 -A read with Section 81 of the Representation of People Act, 1951 (in short, "1951 Act") challenging the election of the present applicant (hereinafter referred to as the returned candidate) to the Legislative Assembly of Assam from No. 115 Moran Legislative Assembly Constituency, result of which was declared on 13th May, 2011, on the ground of improper acceptance of nomination paper and also alleging violation of the provisions of the 1951 Act, the Conduct of Election Rules, 1961 (in short, "1961 Rules) and the orders issued by the Election Commission of India, within the meaning of Section 100(1)(d)(i) and (iv) of the Act, respectively. It has been alleged by the election petitioner in the election petition that the returned candidate alongwith the nomination paper did not submit legally valid affidavits, as required under Section 33 -A of the 1951 Act and also under the order of the Election Commission dated 27th March, 2003, as the affidavits submitted by him were not duly sworn affidavits, thereby violating the provisions of the 1951 Act as well as the Election Commission's order.

(2.) THE returned candidate upon receipt of the notice entered appearance and filed these applications, as noticed above, for striking out the pleadings under Order 6, Rule 16 and for dismissal of the election petition under Order 7, Rule 11, CPC. The written statement has also been filed by the returned candidate.

(3.) MR . Dey, learned counsel for the returned candidate referring to the pleadings in the election petition has submitted that even assuming that there was non compliance of Section 33 -A of the 1951 Act by the returned candidate in not filing the affidavits as required under Section 33 -A of the 1951 Act and under the order of the Election Commission of India dated 27th March, 2003, as pleaded by the election petitioner in the election petition, since Section 36(2) of the said Act does not contemplate rejection of nomination paper for non firing of such affidavits, the Returning Officer cannot reject the nomination paper on that ground and hence the pleadings in the election petition to the effect that there was improper acceptance of the nomination paper of the returned candidate is unnecessary, scandalous, frivolous and vexatious and the election petition is nothing but the abuse of the process of the Court. It has also been submitted that the order of the Election Commission dated 27th March, 2003, which according to the election petitioner, has been violated, being not the order made under the provisions of the 1951 Act, violation of such order cannot be a ground for declaring the election of the returned candidate void under Section 100 of the 1951 Act. Hence, according to the learned counsel, the pleadings to that effect in the election petition also need to be strike out. The learned counsel further submits that since that is the only allegation in the election petition, on which the election of the returned candidate is called in question, the election petition deserves to be dismissed for non disclosure of cause of action. It has also been submitted by Mr. Dey that the election of the returned candidate can be declared void by the High Court under Section 100(1)(d)(i) to (iv) of the 1951 Act only if the result of the election, in so far as it concerns the returned candidate, has been materially affected, the same being condition precedent. In the instant case, according to the learned counsel, the election petitioner in the election petition has not pleaded and even not made a whisper that because of the improper acceptance of the nomination paper of the returned candidate and for non compliance of the provisions of the 1951 Act as well as the order of the Election Commission, the result of the returned candidate has been materially affected and as such, the election petition deserves to the dismissed at the threshold for want of pleadings to that effect in the election petition.