High Court · 2012

vit was filed. Mr. Sharma, learned counsel appearing for the applicant/returned candidate has s ubmitted that though the applicant has prayed for a number of amendments in the pleadings, the applicant has pressed the following amendments only in paragraphs 10 and 13 to the written statement:- (i) That in paragraph 10 of the Written Statement filed by the petitioner as the respondent after the words (cid:28)and the same are being denied herewith (cid:29) all the 4 s ub-paras therein beginning with the words (cid:28)For the first, it is reiterated (cid:29) and ending with the words (cid:28)and the same was properly accepted in accordance with law (cid:29) may be allowed to be deleted and substituted with the following paragraphs:- (cid:28)It the answering respondent while reiterating the facts which has already been stated by her in the forgoing paragraphs, begs to state that upon a conjoint rea ding of the statutory provisions as contained in (i) Section 33-A (1) of the Rep resentation of the People Act, 1951 and (ii) Rule 4-A of the Conduct of Election s Rules, 1961 as well as the various Orders and Notifications as has been issued by the Election Commissioner of India from time to time, especially the one tha t was issued by the Election Commissioner of India vide his (i) Order dated 27.0 3.2003 issued under Memo No.3/ER/2003/ JS-II and (ii) Notification dated 17.01.0 6, it is abundantly clear that a candidate filing his or her nomination shall ha ve to submit. 2(Two) separate affidavits before the returning officer before 3.00 pm o f the last date of filing of the nomination which in the instant case was 17th o f March, 2011. But due to complete oversight and bonafide mistake on her part the answe ring respondent prepared both the 2(two) affidavits in questions on the basis of the same set of information i.e. both the affidavits -- one prepared as per For m 26 and the other prepared as per the prescribed format appended with the Order dated 27.03.2003. That is both the affidavits in question were prepared by the answering respondent by taking the criteria of (cid:28)framing of charge (cid:29) into conside ration and not by taking the criteria of (cid:28)taking of cognizance (cid:29) though she was r equired to prepare the Affidavit prepared as per the format appended to Order da ted 27.03.03 on the basis of the (cid:28)taking of cognizance (cid:29) factor into account. Thus as a result of the said bonafide mistake and oversight on the part of the a nswering respondent, the information as provided by her in the affidavit prepare d and submitted before the Returning Officer as per prescribed format appended t o the Order dated 27.03.2003 was incorrectly given initially. The said fact came to the notice of the answering respondent only on the date wh en she submitted her nomination before the Returning Officer on 15.03.11 and con sequently the respondent immediately on the very next date (i.e. on 16.03.11) su bmitted a freshly prepared affidavit in the prescribed format as appended to the Order dated 27.03.03, by way of taking into account the date of (cid:28)taking cogniza nce (cid:29) and not (cid:28)the date of framing of charge (cid:29) as had earlier been done by her. In the instant case as the answering respondent had admittedly submitted both th e affidavits as required and that too within 3.00 pm of the last date of the fil ing of nomination, the nomination of the answering respondent cannot be said to have been filed under any defect which would entitle the rejection of the same b y the returning officer on account of being substantially defective in nature. Further, it is again reiterated by the answering respondent that as the statemen ts made in the first affidavit submitted by her as per the format appended to th Circular dated 21.03.2009 issued under Memo No.3/ER/2009/SDR. e Order dated 27.03.03, had been incorrectly given due to the consideration of t he wrong set of data, due to a bonafide mistake committed on her part the same w as immediately rectified by the answering respondent by way of filing the second affidavit on 16.03.11 in the same format by preparing the same on the correct s et of data and that too well within the stipulated time frame and date i.e. befo re 3.00 pm of the last date of filing of nomination. Further more, the answering respondent begs to state that the contention of the election petitioner to the effect that as the affidavit submitted by the answeri ng respondent on 16.03.11 contained handwritten entries without authentication, it is submitted by the answering respondent that the various orders and/or instr uctions as has been issued by the office of Election Commissioner of India from time to time with regard filing of the two separate affidavits by a candidate no w where debars the candidates from making handwritten entries in the said affida vits and also stipulates that such handwritten entries needs to be authenticated by the concerned candidate. The answering respondent in support of her aforesa id contentions wished to place her reliance upon the following Circulars issued by the Office of the Election Commissioner of India viz:- i) ii) Circular dated 16.03.11 issued under Memo No.3/ER/2011/SDR. The answering respondent further submits that the alleged complaints (i.e. Annex ure-5 and 5A of the Election Petition) as were filed by the election petitioner before the Returning Officer were not done in the prescribed mode and manner as has been clearly specified by the Election Commissioner of India vide Para 16(5) of the Order dated 27.03.03 issued under Memo No.3/ER/2003/JS-II as because by the said sub para (5) of Para 16 of the Order under reference it has clearly bee n stated as follows: (cid:28)If any rival candidate furnishes information to the contrary, by means of a dul y sworn affidavit, then such affidavit of the rival candidate shall also be diss eminated along with the affidavit of the candidate concerned in the manner direc ted above. (cid:29) It is also stated by the answering respondent that upon a perusal of the entire statements made in the paragraph 11(b) and (c) of the election petition filed by the petitioner is based on hypothetical arguments and surmises on the part of t he election petitioner without having supplied any material facts or particulars essential as per the requirement of the statute and as such, it is abundantly c lear that the said statements have purposefully been made by the petitioner to e nsure that a roving enquiry is conducted by this Hon’ble Court during the course of the trial of this election petition which is impermissible as per law. (ii) That in paragraph 13 of the Written Statement filed by the petitioner as th e respondent the statements made therein after the words (cid:28)are being denied herew ith (cid:29) and before the words (cid:28)It is denied that the (cid:29) i.e. the following: (cid:28)In view of the facts revealed above, it is reiterated herein that there was no occasion for the humble Respondent to file any Second Affidavit as sought to be projected by the Election Petitioner. It is further reiterated that she has not made any false declaration in any affidavit and the so-called second affidavit d ated 16.03.2011 produced by the Election Petitioner at Annexure-4 is a fake one apparently manufactured by/at the instance of the Election Petitioner. (cid:29) may be allowed to be deleted and substituted by the following statements:- (cid:28)That the answering respondent begs to state that the Second Affidavit in questi on [i.e. the one dated 16.03.11] was filed by the answering respondent in order to correct the erroneous statement made by her in her first affidavit which also filed in the prescribed format appended to the Order dated 27.03.2003 issued by the Officer of the Election Commissioner of India, due to a bonafide mistake on her part as has already been explained by her in details in the forgoing paragr aphs of her instant written statement. (cid:29) It has been contended by the learned counsel for the applicant that though it is the pleaded case of the election petitioner in the election petition that the a pplicant/returned candidate has field 2(two) affidavits, one dated 15th March, 2 011 and the other dated 16th March, 2011, in the written statement filed by the applicant/returned candidate inadvertently it has been pleaded that the second a ffidavit dated 16th March, 2011 has not been filed, though in fact the same was filed. It has also been submitted that immediately on detection of the said mis take, the application has been filed seeking amendment of the pleadings. The le arned counsel further submits that if the amendment sought for is allowed, would not change the nature and character of the proceeding as the election petitione r himself has pleaded about filing of the aforesaid 2(two) affidavits though wit h the further pleading that the said affidavits are not valid. The learned counsel appearing for the opposite party/election petitioner submits that if the amendment sought for is allowed, it would change the nature and cha racter of the proceeding and also the stand taken by the applicant/returned cand idate in the written statement filed. The election petitioner has challenged the election of the applicant/returned ca ndidate to the Legislative Assembly of Assam from No.115 Moran Legislative Assem bly 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 pr ovisions of the Representation of the People Act, 1951; Conduct of Election Rule s, 1961 and the orders issued by the Election Commissioner of India within the m eaning of Section 100(d)(i) and (iv) of the said Act. It is also the pleaded ca se of the election petitioner that the retuned candidate had filed 2(two) affida vits, one dated 15th March, 2011 and the other dated 16th March, 2011, both affi davits, however, according to the election petitioner, are not valid and not dul y sworn affidavit, as required by law, thereby violating the Election Commission ’s order dated 27th March, 2003. In the written statement filed, the returned candidate had pleaded that though s he filed the affidavit dated 15th March, 2011, no affidavit dated 16th March, 20 11 has been filed. As noticed above, according to the applicant, such pleading was an inadvertent mistake, on discovery of which the present application has im mediately been filed. Having regard to the pleadings in the election petition, as noticed above, and a lso the averments made in the application seeking amendment of the pleadings in the written statement, I am of the view that the aforesaid amendments as sought for is required to be allowed. The same would not change the nature and charact er of the proceeding and also the stand taken by the election petitioner. The am endment sought for is also necessary for determining the real questions in contr oversy between the parties. Hence, the amendment to the pleadings of the written statement as sought for is allowed. The applicants/returned candidate shall by 16th November, 2012 file the amended written statement incorporating the amendm ent allowed. Misc. Case stands disposed of. No costs.