SUNIL RAJKONWAR Vs. JIBONTARA GHATOWAR

JUDGEMENT

(1.) The petitioner, who was a candidate of Assam Gana Parishad and contested the last General Election held in 2012 to the Assam Legislative Assembly Constituency from No. 115 Moran Legislative Assembly Constituency (in short 'the Constituency'), has filed this election petition under Section 80, 80A read with Section 81 of the Representative of People Act, 1951 (in short the 1951 Act), calling in question the result of the said election declaring the respondent elected from the said Constituency, on the ground of improper acceptance of nomination paper and also on the ground of non-compliance with the provision of the 1951 Act and the orders made by the Election Commission of India, within the meaning of Section 100(1)(d)(i) & (iv) of the 1951 Act, contending inter alia that the respondent/returned candidate, along with the nomination paper, did not submit legally valid affidavits, as required under Section 33A of the 1951 Act and also under the order of the Election Commission dated 27.03.2003 and the said affidavits having not been duly sworn, the nomination paper of the respondent ought to have been rejected for non-compliance of the provisions of the 1951 Act as well as the order of the Election Commission of India. The facts relevant for the purpose of the election petition may be noticed as under:--

(2.) It has been pleaded by the petitioner in the election petition that two affidavits filed by the respondent/returned candidate, one dated 15.3.2011 and the other dated 16.3.2011, and though in the first affidavit the returned candidate did not disclose the fact of the pendency of the case, where cognizance has been taken by the Court, but in the second affidavit the respondent/returned candidate has disclosed the same, those affidavits are not duly sworn affidavits so as to construe the same as the affidavits required to be filed under Section 33A of the 1951 Act read with the order dated 27.03.2003 issued by the Election Commission, there being inherent defects in such affidavits. The said pleadings, however, has been denied by the respondent/returned candidate in the written statement filed, contending inter alia that she has filed duly sworn affidavits. It has further been pleaded that though in the affidavit dated 15.03.2011, filed along with the nomination paper, the fact of pendency of a criminal proceeding has not been disclosed, because of the bonafide mistake and oversight, she immediately on the next day i.e. on 16.03.2011, sworn another affidavit in the prescribed format disclosing the criminal proceeding pending against her, where the Court has taken cognizance of, which was filed before the last date and the time fixed for filing the nomination paper. The respondent/returned candidate has asserted that those affidavits are duly sworn affidavits within the meaning of Section 33A of the 1951 Act as well as the order dated 27.03.2003 passed by the Election Commission of India.

(3.) Based on the pleadings of the parties, the following issues were framed vide order dated 11.06.2012: