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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
PRASANTA KUMAR DEKA, J.
Naba Kumar Sarania S/O Late Lkhikanta Sarania – Appellant
Versus
Sri Daorao Dekhreb Narzary, S/O Late Maheswar Narzary – Respondent
I.A.(Civil) 165 of 2020, El.Pet. 1 of 2019, I.A.(Civil) 3512 of 2019
Decided on : 26-08-2021
Constitution of India, 1950 - Article 329(b) - Gauhati High Court Rules - Representation of People Act, 1951 - Sections 81, 82, 86 and 117 - Code of Civil Procedure, 1908 - Order XVI Rule 1(3) - SC/ST Orders (Amendment) Act, 1957 - Non compliance of provisions of Act, 1951 - Interlocutory application - Seeking leave for adducing evidence is taken up for disposal in this common order. Let me take note of deficiencies as alleged by the respondent applicant resulting in non-compliance of the relevant provisions.
Finding of the court: There was non compliance of Section 81 of the Act, 1951 as no copy of election petition for sole respondent applicant accompanied election petition inasmuch as the only copy accompanied with election petition was only for office use i.e. in compliance of Rule 1 sub-rule (a) of Chapter VIII-A only but not provision of Section 81(1) of the Act, 1951 - After amendment, Part VI Chapter II Section 80A of the Act, 1951 gives the jurisdiction to High Court to try the election petition and on the basis of the said authority, Gauhati High Court introduced Chapter VIII-A in Gauhati High Court Rules consequent to amendment of the Act, 1951 by Act No. XL, VII of 1966. Said Rules are not ultra vires Article 329(b) of Constitution of India and as such it must be read along with Section 81 (3) of the Act, 1951 and compliance of the Rule 1 sub-rule (a) is mandatory.
Result: Election petition is dismissed
JUDGMENT :
Heard Mr. D Mazumdar, the learned Senior counsel assisted by Mr. M Sarania, learned counsel for the respondent applicant and Mr. BC Das, the learned Senior counsel assisted by Mr. S Chauhan, the learned counsel for the election petitioner opposite party.
2. The IA(C) No. 165/2020 and IA (C) No. 3572/2019 are taken up for disposal by this common order.
3. The election petition is filed by the election petitioner opposite party in IA (C) 3512/2019 wherein the sole respondent in the election petition as the applicant in IA (C) No. 3512/2019 filed the said application under Section 86 of the Representation of People Act, 1951 (hereinafter referred as Act, 1951) challenging the election petition for non compliance of the provisions of Sections 81, 82 and 117 of the Act, 1951 read with Chapter VIII A of the Gauhati High Court Rules. After completion arguments by both the learned Senior counsel in the said IA(C) 3512/2019, the election petitioner opposite party in the interlocutory application filed an application seeking leave to adduce evidence in IA (C) No. 3512/2019. The said application was registered as IA (C) No. 165/2020 and the outcome of the same is relevant for disposal of IA (C) No. 3512/2019 as such both the interlocutory applications are taken up for disposal.
4. The opposite party in IA(C) No. 3512/2019 as the election petitioner filed the election petition under Section 80 read with Sections 80A and 81 of the Act, 1951 calling in question the election of the respondent applicant in IA(C) No. 3512/2019 from No. 5 Kokrajhar (ST) House of People Constituency thereby seeking for a declaration that the election of the respondent/returned candidate to be void by virtue of the provisions of Section 100 (1)(a) & (d) (i) of the Act, 1951. The election petitioner opposite party did not contest the election but he is an elector of No. 5 Kokrajhar (ST) House of People Constituency his name being recorded in the electoral roll of No. 30, Kokrajhar East (ST) Legislature Assembly Constituency which forms a part of No. 5 Kokrajhar (ST) House of the People Constituency.
5. The notice of election for holding the election to the said constituency was issued on 28.03.2019 by the Returning officer of the said constituency with the following schedule:
(b) Sorting of nomination papers-05.04.2019
(c) Last date for withdrawal of nomination papers-08.04.2019.
(d) Date of poll-23.04.2019.
6. Alongwith the respondent applicant eight other candidates submitted their nomination papers which were found valid. The poll of the Constituency was held on 23.04.2019. The result of the election was declared on 24.05.2019 and the respondent applicant contesting as an independent candidate was declared to have been duly elected.
7. The respondent applicant as per the election petitioner submitted his nomination paper before the Returning officer of the Constituency by declaring his name as “Naba Kumar Sarania @ Naba Sarania” alongwith a Tribe certificate issued by the All Assam Tribal Sangha, Tamulpur district unit certifying that the respondent applicant belong to Borokachari community which is recognized as Schedule Tribe (Plains) under the Constitution of India (Schedule Tribe) Order 1950, as amended (modification) Order 1956 SC/ST Orders (Amendment) Act, 1957. But, “Sarania” or “Sarania Kachari” is not a notified/recognized Scheduled Tribe and consequently the respondent applicant, a member of Sarania community is not a member of the Schedule Tribe Community under the Constitution Schedule Tribe Order, 1950. The respondent applicant as such is not a member of any notified Scheduled Tribe Community of the State of Assam and on the date of his election he was not qualified to be choosen to contest from the said constituency and nomination papers of the respondent applicant claiming himself to be a member of Borokachari Community was improperly accepted. The said acceptance of the nomination papers ma
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