Gauhati High Court
Ratul Bora vs The Union Of India And 4 Ors on 7 April, 2026
Page No.# 1/13
GAHC010071702026
2026:GAU-AS:5101
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2037/2026
RATUL BORA
S/O KHARGESHWAR BORA, R/O GASBARI, WARD NO. 8, PS- MORIGAON,
ASSAM
VERSUS
THE UNION OF INDIA AND 4 ORS
REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY
OF HOME AFFIARS, SHASTRI BHAWAN, TILAK MARG, NEW DELHI- 110001
2:THE ELECTION COMMISSION OF INDIA
REPRESENTED BY THE CHIEF ELECTION COMMISSIONER
NIRVACHAN SADAN
ASHOKA ROAD
NEW DELHI- 110001
3:THE CHIEF ELECTORAL OFFICER
ASSAM
O/O THE CHIEF ELECTORAL OFFICER
DISPUR
GUWAHATI- 781006
4:THE DISTRICT ELECTION OFFICER
MORIGAON
ASSAM- 782015
5:RAMA KANTA DEWRI
S/O LATE SARUFUL DEWRI
VILLAGE- NADALOIBORI
P.S- MIKIRBHETA
DIST- MORIGAON
ASSAM- 78210
Page No.# 2/13
Advocate for the Petitioner : MR S M ABDULLAH P, MS F HUSSAIN,MD S HOQUE,MR. MD
IMDAD
Advocate for the Respondent : DY.S.G.I., SC, ECI,GA, ASSAM,MR. A SARMA (FOR CAVEATOR)
BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA JUDGMENT & ORDER (Oral) Date : 07.04.2026 Heard Mr. S. Hoque, learned counsel appearing for the petitioner. Also heard Ms. S. Kataki, learned Standing Counsel, Election Commission of India, representing the respondent nos. 2 & 3; Mr. P. N. Goswami, learned Addl. Advocate General, representing the respondent no. 4 as well as Mr. D. Mazumdar, learned Senior Counsel, assisted by Mr. K. Kalita, learned counsel for the respondent no. 5 (the Caveator).
2. The instant writ petition, under Article 226 of the Constitution of India, has been filed by the petitioner with the grievance that the application for cancellation of nomination papers of respondent no. 5 dated 25.03.2026, filed by the petitioner before the Returning Officer, 54 No. Morigaon Legislative Assembly Constituency, complaining about the non-disclosure of certain material facts about the second wife of respondent no. 5 in Form-26 affidavit filed by the respondent no. 5, while submitting his nomination papers before the Returning Officer for election to the Legislative Assembly, Assam, from 54 No. Morigaon LAC, has not been considered by the aforesaid Returning Officer.
3. The case of the petitioner is that the respondent no. 5 has submitted his nomination papers to contest the election from 54 No. Morigaon LAC and as required under the Representation of People Act, 1951 (herein after Act of 1951) Page No.# 3/13 and the Conduct of Election Rules, 1961, has sworn an affidavit in Form-26, disclosing his criminal antecedents, assets and liabilities and educational qualification etc. However, the respondent no. 5 has though disclosed various facts, did not disclose about his one spouse and her assets and properties. It is the case of the petitioner that the respondent no. 5, in spite of having two spouses, has disclosed only about one spouse, i.e., Smti Lujemai Dewri but, did not disclose about his second spouse, namely, Smti Sewali Dewri and her assets and liabilities. It is contended that during the last General Assembly Election of 2021, the respondent no. 5 had disclosed about his two aforesaid spouses in Form-26 affidavit. However, in the present election of 2026, he refrained from disclosing about his one spouse and her assets and liabilities. It is contended that having found the aforesaid non-disclosure, which is mandatory in nature, the petitioner, who is an election agent of an independent candidate, namely, Shri Animesh Medhi, has submitted an application for cancellation of the nomination papers of the respondent no. 5 dated 25.03.2026 before the Election Officer, 54 No. Morigaon LAC, pointing the aforesaid anomalies. It is also contended that the names of both the spouses were included in the final voters' list of 54 No. Morigaon LAC, but the respondent no. 5, for reasons best known to him, did not disclose about his second spouse. It is contended that in spite of the aforesaid application for cancellation, the Election Officer has not taken any action for cancellation of the nomination papers of the respondent no. 5, which is in violation of the mandates of the Constitution of India.
4. The instant writ petition has been filed by the petitioner with the following prayers: -
"1. to Issue a writ of mandamus or any other appropriate writ, order, or direction/commanding Respondent No.4 forthwith decide, by a speaking and reasoned order, the objection dated 25-03-2026 submitted by the Petitioner Page No.# 4/13 against the nomination of Respondent No. 5 for 54-Morigaon LAC and/or;
2. Issue an appropriate writ, order, or direction quashing and setting aside the acceptance of the nomination of Respondent No. 5 for the 54-Morigaon Legislative Assembly Constituency, Assam Legislative Assembly Election, 2026, on the ground of filing a false and incomplete affidavit Form-26 by suppressing the existence and assets of one wife and/or;
3. Issue a declaration that the Form-26 affidavit filed by Respondent No. 5 for the 2026 election is invalid and non-est in law on account of deliberate and material non-disclosure of his spouse and her assets and liabilities, in violation of Sections 33 and 33A of the RP Act, 1951 and Rule 4A of the Conduct of Elections Rules, 1961 and/or;
4. Direct Respondent No. 4 to take consequential steps, including rejection of the nomination of Respondent No. 5 and to communicate the same to the Election Commission of India (Respondent No. 2) for further necessary action, so as to ensure free and fair elections in 54-Morigaon LAC and/or;
5. Issue a direction to Respondent No. 4 to consider initiation appropriate of proceedings against Respondent No. 5 under Section 125A of the RP Act, 1951 and other applicable provisions of criminal and electoral law for filing a false affidavit and suppression of material information and/or;
6. Pass such further or other order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
-AND-
Pending disposal of the present writ of petition, pass an interim order staying the operation of the acceptance nomination of Respondent No. 5 and restraining him from contesting the election from 54-Morigaon LAC on the basis of the impugned nomination and affidavit."
5. Mr. S. Hoque, learned counsel for the petitioner submits that under Section 36(2) of the said Act of 1951, the Returning Officer is duty bound to hold a summary enquiry into the objections to nomination and to either accept or reject the nomination by a reasoned order in accordance with law. However, in the instant Page No.# 5/13 case, the respondent no. 4 has neither taken any action nor passed any speaking order on the objection dated 25.03.2026 till date and, in fact, has proceeded to accept the nomination with utter disregard of the mandatory statutory provisions and the binding law laid down by the Hon'ble Supreme Court. He submits that the non-disclosure of the existence of his spouse and her assets and liabilities in Form- 26 is a grave and material suppression, defeating the very object of inserting Section 33-A and 33-B of the said Act of 1951, which ensures transparency and the voter's right to know about the full particulars of a candidate's financial position and the background. He submits that the petitioner has a fundamental right under Article 19(1)(a) to know the criminal antecedents, assets and liabilities of the candidate seeking election, so that, he can make an informed choice of candidates.
6. The learned counsel for the petitioner submits that in the case of Kisan Shankar Kathore Vs. Arun Dattatray Sawant & Ors., reported in (2014) 14 SCC 162, wherein the Hon'ble Supreme Court has considered suppression of the immovable property owned by the candidate's wife in Form-26 affidavit and held that non-disclosure of wife's property, amounted to a material defect and a clear of non-disclosure, emphasizing that the candidate is required to make a complete and truthful disclosure of "spouse's assets", failing which, the election is liable to be set aside. He submits that suppression of material particulars in Form-26, regarding assets, liabilities, criminal antecedents is a serious violation of the Act of 1951 and the conduct of Election Rules, 1961 and the same can be the only ground for declaring the election void and also an offence punishable under Section 125-A of the said Act of 1951.
7. The learned counsel for the petitioner has also referred to the case of S. Rukmini Madegawda Vs. State Election Commissioner and Others, reported in (2022) 18 SCC 1, to support his submission that non-disclosure of assets would be against the spirit of the Constitution and public interest. He specifically referred to Page No.# 6/13 paragraph-73 of the aforesaid case of S. Rukmini Madegawda (supra), which is extracted herein below:-
"73. Purity of election at all levels, be it election to the Union Parliament or a State Legislature or a Municipal Corporation or a Panchayat is a matter of national importance in which a uniform policy is desirable in the interest of all the States. A hypertechnical view of the omission to incorporate any specific provision in the KMC Election Rules, similar to the 1961 Rules, expressly requiring disclosure of assets, to condone dishonesty and corrupt practice would be against the spirit of the Constitution and public interest."
In terms of the aforesaid submissions, the learned counsel for the petitioner has prayed for the reliefs as detailed above.
8. Mr. D. Mazumdar, learned Senior Counsel, appearing for the respondent no. 5 has seriously questioned the maintainability of the instant writ petition. While referring to Article 329(b) of the Constitution of India, he submits that there is a clear bar to interference by courts in election matters. The Article 329(b) of the Constitution, being relevant is extracted herein below: -
"329. Bar to interference by courts in electoral matters.--[Notwithstanding anything in this Constitution]
(a) ........................................................................
(b) No election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature."
9. The learned Senior Counsel has further referred to Section 80 of the said Act of 1951, which provides for provisions for election petitions. He submits that no Page No.# 7/13 election shall be called in question except by an election petition presented in accordance with the provisions of this part. Therefore, he submits that once the process of election starts, the courts shall refrain from interfering on the same and if, anyone is having any grievance about the election, the person can file an election petition under Section 80A of the said Act of 1951.
10. In support of his submissions, the learned Senior Counsel has referred to the case of Vishvanath Agarwal Vs. Election Commission of India & Ors., (WP(C) No. 765/2025) of the Hon'ble High Court of Delhi, decided on 23.01.2025. In this connection, he has referred to paragraph-8 of the aforesaid case of Vishvanath Agarwal (supra), which is extracted herein below: -
"8. Two Co-ordinate Benches of this Court in Vijal Pal Singh (supra) and in Kiran Pal Singh Tyagi and Others Vs. State (NCT of Delhi) and others, 2020 SCC OnLine Del 421, have dismissed the writ petitions under Article 226 of the Constitution relegating the parties to the remedy of filing Election Petition, if so advised. In Vijay Pal Singh (supra), following the dicta of the Supreme Court, it was observed that "election" means all steps and entire proceedings from the date of election till declaration of the results and the only way to challenge any step is by way of an Election Petition. Courts have time and again cautioned that here cannot be two- pronged attack on matters connection with elections, i.e., one during the course of elections by invoking extraordinary jurisdiction of the High Courts under Article 226 of the Constitution and second after elections have concluded, by way of filing an Election Petition. Therefore, the remedy of the petitioner in the present case lies in filing an Election Petition and this writ petition cannot be entertained."
11. The learned Senior Counsel submits that two-pronged attack on anything Page No.# 8/13 done during the election proceedings is to be avoided--one during the course of the proceedings and the other at its termination, for such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of democracy. The learned Senior Counsel has also referred to the case of N. P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, reported in (1952) 1 SCC 94, wherein the Hon'ble Supreme Court has observed that Article 329(b), on the other hand, was primarily intended to exclude or oust the jurisdiction of all courts in regard to electoral matters and to lay down the only mode in which an election could be challenged.
12. The learned Senior Counsel has also referred to the case of Election Commission of India Vs. Ashok Kumar and Others, reported in (2000) 8 SCC 216, wherein, the Hon'ble Supreme Court has held that the term "election" as occurring in Article 329 has been held to mean and include the entire process from the issue of the notification under Section 14 of the Representation of the People Act, 1951 to the declaration of the results under Section 66 of the Act. In view of the aforesaid ratios laid down by the Hon'ble Supreme Court as well as by the Hon'ble Delhi High Court, the learned Senior Counsel submits that this instant petition is not maintainable and this Court shall not invoke its jurisdiction under Article 226 of the Constitution of India due to the fact that once an election process has started, the same cannot be stalled by such objection as raised in the instant case. He submits that the whole purpose of Article 329(b) shall be defeated, if, the process of election is stalled or the nomination of the respondent no. 5 is disturbed at this stage by this Court.
13. Mr. P. N. Goswami, learned Addl. Advocate General, appearing for the respondent no. 4 submits that the instant writ petition is not maintainable on the face of it and the same should be dismissed in limine due to the provisions under Article 329(b) of the Constitution of India and also for the dicta laid down by the Page No.# 9/13 Hon'ble Supreme Court in various cases including the cases referred to by the learned Senior Counsel appearing for the respondent no. 5. In the similar line, the learned AAG has also referred to the case of Manda Jaganath Vs. K. S. Rathnam and Others, reported in (2004) 7 SCC 492, wherein the Hon'ble Supreme Court has held that the word "election" means any and every act taken by the competent authority after the publication of the election notification.
14. While referring to paragraph-25 of N.P. Ponnuswami (supra), the learned AAG submits that the scheme of the election law in this country is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress. Therefore, he submits that once the election process has started, the same cannot be disturbed; however, any person aggrieved by such election process or any incident of election, the same can be challenged before a Special Tribunal by means of an election petition. In view of the aforesaid clear dicta from the Hon'ble Supreme Court, he submits that the instant writ petition is not maintainable and therefore, should be dismissed in limine.
15. Ms. S. Kataki, learned Standing Counsel, ECI, while referring to the case of Kisan Shankar Kathore (supra), submits that if there is any objection to the affidavit filed by a candidate while submitting his nomination, the same requires a detailed enquiry and a summary enquiry shall not suffice. Therefore, it would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector. He submits that in the instant case, the same situation has occurred, wherein, an objection has been raised Page No.# 10/13 against the nomination and disclosure in affidavit by respondent no. 5 by filing an application for cancellation of the nomination. She submits that in view of the ratio laid down by the Hon'ble Supreme Court in the aforesaid case, it would not be possible for the Returning Officer to reject the nomination as the allegations made would require a detailed verification and without such verification, the nomination cannot be cancelled. Therefore, she submits that the instant petition does not have any merit and the same should be dismissed.
16. This Court has heard the submissions made by the learned counsel appearing for the respective parties.
17. It is seen that Article 329(b) of the Constitution, specifically bars any interference by any courts in electoral matters after the election process has started by issuance of a notification for the election. As discussed above, Article 329(b) provides that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature and the same can be done in terms of Section 80 and Section 80A of the Act of 1951 by filing an election petition before the High Court. The instant petition is filed under Article 226 of the Constitution of India and is not an election petition. In this connection, the case of N.P. Ponnuswami (supra) being relevant, the paragraphs-24 & 25 of the aforesaid case is extracted herein below:-
"24. It may be pointed out that Article 329(b) must be read as complementary to clause (a) of that article. Clause (a) bars the jurisdiction of the courts with regard to such law as may be made 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 Page No.# 11/13 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 of the elections. The more reasonable view seems to be that Article 329 covers all "electoral matters".
25. The conclusions which I have arrived at may be summed up briefly as follows:
(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a Special Tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress."
18. The ratio laid down in the case of Election Commission of India (supra) has Page No.# 12/13 clearly held that "election" as occurring in Article 329 has been held to mean and include the entire process from the issue of the notification under Section 14 of the Representation of the People Act, 1951 to the declaration of the result under Section 66 of the Act.
19. A plain reading of the ratios laid down in the aforesaid two cases, i.e., N.P. Ponnuswami (supra) and Election Commission of India (supra), it is crystal clear that no interference by any court can be made to any issues relating to an election, which is under process, can be raised by way of a writ petition before a High Court. If any citizen is aggrieved by any defects that vitiates the election process, the only option remains with such person is to file an election petition under Section 80 and 80A of the said Act of 1951 after the completion of the election, before a High Court.
20. It is also observed that the Hon'ble Supreme Court in the case of Kisan Shankar Kathore (supra) has clearly held that any information given by a candidate in the affidavit filed along with the nomination papers, if any objection is raised due to any facts including an alleged non-disclosure of certain important information, it may not be possible for the Returning Officer at that time to conduct a detailed examination and come to a definite conclusion. In this regard, the relevant extract of paragraph-38 in the case of Kisan Shankar Kathore (supra) is provided herein below: -
"38. ....................................................................................
When the information is given by a candidate in the affidavit filed along with the nomination paper and objections are raised thereto questioning the correctness of the information or alleging that there is non-disclosure of certain important information, it may not be possible for the returning officer at that time to conduct a detailed examination. Summary enquiry may not suffice. Present case is itself an example which loudly demonstrates this. At the same time, it Page No.# 13/13 would not be possible for the Returning Officer to reject the nomination for want of verification about the allegations made by the objector.
...................................................................................."
21. In view of the ratios laid down in the aforesaid cases of N.P. Ponnuswami (supra), Election Commission of India (supra) and Kisan Shankar Kathore (supra), this Court is of an unhesitant conclusion that the reliefs sought for by the petitioner in the instant case cannot be entertained in the instant writ petition.
22. In view of the aforesaid conclusions, the instant writ petition is dismissed at the motion stage itself, being found not maintainable.
JUDGE Comparing Assistant