ORDER

26.03.2021 Heard Mr. S. N. Sarma, learned Senior counsel assisted by Mr. A. R. Bhuyan learned counsel for the petitioner. Also heard Mr. D. Barua, learned counsel for the Election Commission of India, respondent Nos. 1,2 and 3, Mr. P N Goswami, learned counsel for the respondent No. 4 and Ms. DD Barman, learned Additional Senior Government Advocate.

The petitioner is an elector of LA-10 Sonai Constituency of Assam Legislative Assembly.

The respondent No. 5 is an AIUDF sponsored candidate who filed his nomination for the said Constituency in Assam Legislative Assembly Election held in the year 2016. Therein model affidavit which was submitted with the nomination papers the respondent No. 5 gave false statement regarding his educational qualification. On the said allegation Sonai P.S. case No. 27/2021 was registered against him but no investigation was conducted. In the ensuing Assam Legislative Assembly Election the respondent No. 5 is again the AIUDF sponsored candidate for the said Constituency wherein he submitted his nomination. This time also the respondent No. 5 in his affidavit submitted with the nomination paper gave false statement regarding financial liability arising out of the loan. Although complaint was lodged before the respondents but no action has been forthcoming. In view of the same, the petitioner has filed this writ petition with the following prayer:

“A) Direct/ command the respondent No. 1,2 and 3 to take a decision on the nomination of respondent No. 5 against LA-10 Sonai LAC, B) Direct/ command the respondents to take action against the respondent No. 5 under Section 125 A of Representation of People Act, 1951.

C) Direct/ command the respondent No. 4 to investigate Sonai PS case No. 27/21 registered against the respondent No. 5.”

I have heard the learned counsel wherein the counsel for the respondents raised the issue of maintainability of this writ petition. In this regard Mr. Goswami relies NP Ponnuswami Vs Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. And four Others reported in AIR 1952 SC 64. The matter raised in this writ petition is in respect of the falls information being submitted by filing the model affidavit which is mandatory at the time of filing of nomination by a candidate in the election process initiated under the Representation of People Act, 1951. Article 329 of the Constitution of India is very specific to that effect and the intent of the said Article 329 was specifically mentioned in the Constitutional Bench decision in NP Ponnuswami Vs Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. And four Others (Supra) and the relevant ratio is extracted hereinbelow:

“It may be pointed out that Article 329(b) must be read as complimentary to clause (a) of that article. Clause (a) bars the jurisdiction of the courts with regards to such law as may be under Articles 327 and 328 relating to the delimitation of constituencies or the allotment of seats to such constituencies. It was conceded before us that Article 329(b) ousts the jurisdiction of the courts with regard to matters arising between the commencement of the polling and the final selection. The question which has to be asked is what conceivable reason the legislature could have had to leave only matters connected with nominations subject to the jurisdiction of the High Court under Article 226 of the Constitution. If Part XV of the Constitution is a code by itself i.e., it creates rights and provides for their enforcement by a Special Tribunal to the exclusion of all courts including the High Court, there can be no reason for assuming that the Constitution left one small part of the election process to be made the subject matter of contest before the High Courts and thereby upset the time schedule on the elections. The more reasonable view seems to be that Article 329 covers all “electoral matters”.

The Apex Court in Manda Jaganath Vs K.S.Rathnam and others reported in (2004) 7 SCC

492 held that if by an er