Page No.# 1/10 GAHC040014982024 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH) Case No. : IA(C)/209/2024 Pesi Jilen Son of Late Gepe Jilen, resident of Ese Kerte, PO and PS Liromoba, West Siang District, Arunachal Pradesh 791101 VERSUS Nyamar Karbak Son of Late Tumnya Karbak, resident of Dego Kamki, PO and PS Kamba, West Siang District, Arunachal Pradesh 791101 Advocate for the Petitioner : Romjir Rakshap, Advocate for the Respondent : Marto Kato, :::BEFORE::: HONOURABLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 28.01.2025 Date of Order : 12.03.2025 ORDER (CAV) Heard Mr. R. Rakshap, learned counsel for the applicant/respondent in Page No.# 2/10 Election Petition No. 06/2024. Also heard Mr. M. Kato, learned counsel for the respondent/petitioner in Election Petition No. 06/2024. 2. This is an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 read with Representation of Peoples Act, 1951 praying for dismissal of the Election Petition No. 06/2024 for non-joinder of necessary parties in the election petition. 3. Mr. Rakshap, learned counsel for the applicant, submitted that in the connected Election Petition No. 06/2024, the respondent herein, i.e. the election petitioner, had produced the document which does not comply with the provision of Section 36 of Representation of Peoples Act, 1951 (in short, ‘RP Act, 1951’) while challenging the defect in nomination paper of the present applicant/returned candidate. The respondent/election petitioner should have raised the objections verbally and through written form during Scrutiny itself and it should be duly acknowledged and signed by the Returning Officer as a proof that he raised objection. But no such objection was raised during Scrutiny by producing documents before the Returning Officer so as to disqualify the applicant under Section 100 of RP Act, 1951. As such, without any objection being raised, the Returning Officer, 27th Liromoba ST Assembly Constituency had accepted the Nomination Paper as there was no defect in the nomination paper of the applicant. Thus, the respondent had exhausted his rights on the day of Scrutiny itself and hence he cannot take the plea of objection after the claim and objection that is already over. He further submitted that the respondent had preferred the connected election petition on the ground that he had filed a representation before the Returning Officer for rejection of Page No.# 3/10 Nomination Paper of the present applicant- Shri Pesi Jilen, but on perusal of the documents, it is seen that there is no whisper as to who received the papers and there is also no acknowledgement or countersign from any Officers of the Election Team not even from the Returning Officer of 27th Liromoba ST Assembly Constituency and as such, the genuinity and authenticity of the said representation is also questionable in the eye of law. Furthermore he submitted that the grounds taken in the election petition is entirely based on improper filing and non-disclosure of facts on Form 26, but the proper time for filing the objection raising those issues should have been on the day of Scrutiny. It is a settled law that the documents of an election petitioner should be reliable and genuine, but in the present case, the documents filed by the election petitioner is questionable and hence, the election petition may be dismissed with heavy cost for production of such manufactured documents. 4. Mr. Raksap further submitted that non-disclosure of Social Media Account by the applicant in Form-26 cannot be the ground for rejection or disqualification of his candidature and the same is also agreed and accepted by the respondent/election petitioner himself in the election petition. Further, non- disclosure of the criminal case pending against the applicant in the Court of Deputy Commissioner, Capital Complex under charge of Arunachal Pradesh Unlawful Activities (Prevention) Act, 2014 (in short ‘APUAPA’) for unauthorized occupation cannot be the ground for disqualifying the present applicant as merely Show Cause Notice was issued against the present applicant and thus, it cannot be held that a criminal case is pending against the applicant. Further, the applicant had already annexed the copy of the Order of Deputy Commissioner, Itanagar Capital Complex which shows that the sanction for allotment of Page No.# 4/10 government land was also done in the proper manner and the said allegation of encroachment was heard and disposed of in the year 2022 while the applicant was serving as Under Secretary, Govt. of Arunachal Pradesh. And, thereafter, on public call for contesting the Election, the applicant, being the government employee, applied for Voluntary Retirement to the Government and after obtaining the Vigilance Clearance from the Vigilance Cell, Government of Arunachal Pradesh since there was no adverse report of unauthorized occupation of public premises available with the applicant, the applicant got the VRS from Secretary, Personnel. More so, the NOC was also issued by the Deputy Commissioner in favour of the applicant. Hence, he submitted that if the respondent/election petitioner finds that the documents which were obtained by the applicant are forged or defective, they could have filed a criminal case against the applicant as well as the Officials instead of instituting the election petition. Further, in the order dated 09.08.2022, passed by the Deputy Commissioner, it is clearly mentioned that the quarter or the government accommodation which the respondent/election petitioner are projecting to be of the applicant has been allotted to Smti Yabom Bomjen Jilen and not the present applicant. More so, the applicant has not been allotted with any government accommodation since last 10 years in his name and as such, he mentioned in the affidavit “Not applicable” and NIL in regards to due of electricity etc. under Form 26 in Government accommodation as the only question was as to whether the applicant was in government accommodation in the last 10 years and the answer was negative. 5. Further Mr. Rakshap submitted that though the respondent/election petitioner has made an averment that the Returning Officer has not acted as per Page No.# 5/10 the law in spite of submission of representation, but the said Returning Officer is not made party in the election petition to clarify as to whether said representation was submitted before him or not and whether they made any protest at the time of Scrutiny. As such, the failure of making important/necessary party suffers from substantial defect in the said election petition. Accordingly, he submitted that this Court in exercise of power under Section 86 of RP Act, 1951 may be pleased to dismiss the Election Petition No. 06(AP)/2024 for non-compliance of Sections 82, 81 & 100 of RP Act, 1951 read with Order I Rule-9(2) of the CPC to secure the ends of justice. 6. Mr. Rakshap also submitted that the respondent has annexed a controversial document, which is obtained through RTI by one Shri Raha Amit Tara, with the allegation that someone had scratched the word ‘Joint Allotted’ obtained from the Housing Department. But the RTI documents obtained by a separate individual cannot be used in election petition unless it is adduced with a copy of authorization and on that count also, the Election Petition No. 06(AP)/2024 suffers from lot of technical and material defects which is liable to be dismissed. 7. On the other hand, Mr. Kato, learned counsel for the respondent/election petitioner, submitted verbally and through their Written Objection that the grounds taken by the election petitioner challenging the election of the applicant/returned candidate as MLA of 27th Liromoba ST Assembly Constituency, held in the year 2024 of Arunachal Pradesh Legislative Assembly Election, are sufficient, just and proper for declaring the said election to be void. It is also submitted by him that the respondent/election petitioner had made Page No.# 6/10 Objection during the Scrutiny of their Nomination Papers and pointed out the defects about non-disclosure of facts and false declaration given by the applicant- Shri Pesi Jilen in his Affidavit (in Form 26) and the respondent/election petitioner had submitted that the representation dated 28.03.2024 to the Returning Officer, 27th Liromoba (ST) Assembly Constituency, West Siang District for rejection of the Nomination Paper of the applicant. More so, the applicant was also charged for offence punishable under Section 2(xi) of APUAPA and as such, the proceeding which has been drawn against the applicant under the above mentioned provision of law, is a criminal case wherein he is an accused. But, despite the criminal case pending against him under the said Act, the applicant had not disclosed the same and thereby made false statement as well as false declaration. 8. Mr. Kato further submitted that as per the proceeding drawn against the applicant- Shri Pesi Jilen in connection with Case No. DC/ICC/JUD-01/2022 (State Vrs. Shri Pesi Jilen) vide order dated 09.08.2022, the Government Quarter No. 29 Type-II at C-Sector, Itanagar, which was jointly allotted in the name of the applicant and his wife, is a government accommodation during his service period and before his resignation from the service on 24.08.2023. More so, in the said order dated 09.08.2022, it is clearly observed by the Deputy Commissioner that “Pesi Jilen has hide some facts that the Housing Department is the nodal department of the Quarter Allotment and thereby misled the Finance Department and got finance concurrence.” But, despite all these facts, the applicant had obtained the No Objection Certificate and Vigilance Clearance by fraudulently hiding the material facts and manipulated the authorities in obtaining his VRS. Thus, the applicant projected himself as a person who has no criminal antecedents by suppressing and not disclosing the pending criminal Page No.# 7/10 case against him and made false statement giving some false declaration in his Affidavit in Form 26, which was submitted along with his Nomination Paper, as a corrupt practice within the meaning of Section 123(4) of the RP Act, 1951 and for which, the election, in question, is liable to be declared void in respect of the applicant/returned candidate- Shri Pesi Jilen. 9. In regards to the issue raised by the applicant for non-joinder of necessary parties, Mr. Kato, learned counsel for the respondent/election petitioner, submitted that the Returning Officer is not a necessary party in the connected election petition inasmuch as no complaint of corrupt practices and no relief was claimed against him in the connected election petition. Further it is submitted that as per Clause (a) of Section 82 of RP Act, 1951, which is headed “Parties to the petition”, it provides that the petitioner shall join as respondents to the petition the returned candidates if relief claimed is confined to a declaration that the election of all or any of the returned candidates is void and all the contesting candidates if a further declaration is sought that he himself or any other candidate has been duly elected. Further, as per Clause (b) of Section 82 of RP Act, 1951, it requires the petitioner to join as respondent any other candidate against whom allegations of any corrupt practice are made in the petition. Thus, Mr. Kato submitted that the Returning Officer is not a necessary party to the election petition. 10. Furthermore, Mr. Kato submitted that the respondent/ election petitioner obtained the RTI documents from the public records and there is no legal bar on using these documents as evidence if they are related to the issues in election petition. Moreover, there is no explicit requirement under Representation of Page No.# 8/10 Peoples Act, 1951 that RTI documents must be accompanied by an authorization from the individual who obtained it especially if the documents pertain to issues related to election petition. Accordingly, Mr. Kato submitted that the applicant could not make out a case for dismissal of the election petition on the issue of maintainability and all the issues raised by the applicant/returned candidate may be heard and decided at the time of final hearing of the election petition, being Election Petition No. 06(AP)/2024. 11. After hearing the submissions made by the learned counsels for both sides, it is seen that the applicant basically raised the issue of maintainability on the ground that the allegation which has been brought in the election petition, being Election Petition No. 06(AP)/2024, was never brought before the Returning Officer at the time of Scrutiny or production of documents so as to disqualify the applicant under Section 100 of RP Act, 1951. It is also the contention of the applicant that he duly obtained the Vigilance Clearance Certificate from the authority concerned before obtaining his VRS as per proper procedure, which also clarified that there was no adverse report against the present applicant. It is also the claim of the applicant that no criminal case is pending against him at the time of filing his Nomination Paper and mere existence of a Show Cause Notice cannot be a ground for any criminal charges alleged against him unless the allegation is proved. Further it is the case of the applicant that the allegation of encroachment of the government land had already been disposed of by the concerned Department in the year 2022 and only after getting the clearance from all the concerned HoDs, he applied for VRS to contest the election and subsequently filed his Nomination Paper for the election. Thus, the applicant contended that he disclosed the detail in the Form 26 at the time of submitting his Nomination Paper and there was no disclosure Page No.# 9/10 of any facts by the present applicant to disqualify him from contesting election and in the same time, there is no evidence that the present respondent/election petitioner raised any objection at the time of Scrutiny of the Nomination Papers by the Returning Officer. It is also the case of the applicant that the ground taken by the respondent/election petitioner regarding the pendency of the criminal case based on order dated 09.08.2022 has already been invalidated with NOC dated 08.03.2023, which was issued certifying that there is no adverse report of unauthorized occupation of public premises against the present applicant. More so, the applicant contended that from the order dated 09.08.2022, it is evident that the allotment was made to Smti Yabom Bomjen Jilen and not in the name of the applicant. So, raising all these issues, the applicant had filed the present interlocutory application challenging the maintainability of the Election Petition No. 06(AP)/2024. 12. On the other hand, it is the case of the respondent/election petitioner that on the basis of some false statement, the applicant herein submitted his Nomination Paper and made false declaration in Form 26 which itself is the ground for rejection of his candidature. It is the further allegation of the respondent/ election petitioner that one criminal case is also pending against the present applicant under the APUAPA, 2014, but there is no disclosure made by the applicant regarding the pendency of the case against him. Further it is the case of the respondent that they have filed the documents genuinely obtained by applying RTI and the documents which were furnished by them can be considered as authentic and genuine as it was issued by the Public Department and hence, it cannot be held that on the basis of some false and manufactured documents, the respondent/ election petitioner had challenged Page No.# 10/10 the legality and validity of the election process. It is also the claim of the respondent/election petitioner that they had already made representation before the Returning Officer at the time of Scrutiny bringing all the documents before him, but the matter was not properly adjudicated by the Returning Officer and the nomination of the present applicant was accepted. 13. Thus, it is seen that both the applicant as well as the respondent/election petitioner brought some allegation against each other, as discussed above, but all these are the points to be decided at the time of hearing the Election Petition No. 06(AP)/2024 and there found no preliminary ground in the present interlocutory application to pass any order on maintainability. As stated above, those issues are to be finally heard and decided after recording the evidences of the parties. However, at this stage, this Court is of the opinion that there cannot be any ground for dismissing the Election Petition No. 06(AP)/2024 on the ground of maintainability. Resultantly, the present interlocutory application stands dismissed being devoid of merit. The parties are directed to proceed with the hearing of Election Petition No. 06(AP)/2024 after completing all the necessary formalities and pleadings etc. 14. In terms of above, this interlocutory application stands disposed of. JUDGE Comparing Assistant