NIJAM UDDIN CHOUDHURY Vs. MOON SWARNAKAR

JUDGEMENT

(1.) Heard Mr. D. Saikia, learned senior counsel, assisted by Mr. P. Nayak, learned counsel for the opposite party/ petitioner as well as Mr. K.P. Pathak, learned senior counsel, assisted by Mr. A. Baruah, learned counsel for the applicant/ respondent.

(2.) The Opposite Party herein, as the election petitioner, has assailed the election of the applicant, who is the returned candidate from 8 No. Algapur Legislative Assembly Constitution of Assam Legislative Assembly and arrayed as the respondent in the election petition. In this order, for the sake of convenience, the parties are arrayed as per their position in the election petition.

(3.) The respondent (i.e. the returned candidate) has filed an interlocutory application for rejection of election petition, which has been registered and numbered as I.A.(C) 1609/2021. In the written objection filed the petitioner, amongst others, has taken a plea that the interlocutory application is not maintainable. Hence, the learned senior counsel for the respondent had submitted that the issue of maintainability be heard first. However, vide order dtd. 25/1/2022 in I.A.(C) 1609/ 2021, the Court ordered that the maintainability of the application shall be taken up along with the merit of the application and not as a preliminary issue. The said order led to filing of an interlocutory application, being I.A. (C) 190/2022, by which the respondent had, inter alia, prayed that the preliminary issue be decided first. Thereupon, by order dtd. 27/1/2022, the Court had proposed to hear the preliminary issue of maintainability first. Thus, as the preliminary objection was from the petitioner, the learned counsel for the petitioner was asked to open his argument first.