Iswar Prasanna Hazarika vs Moni Kr. Subba and Others

B.N. Singh Neelam, J.—One Sri Iswar Prasanna Hazarika has filed Election petition No. 3/98 challenging the election of Respondent No. 1 Sri Moni Kr. Subba to the 12th Lok Sabha from 9 Tezpur Parliamentary Constituency challenging its validity on the grounds mentioned in the Election Petition so filed on 18.4.98 and in the said Election Petition an application was filed under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, by the Respondent No. 1 Sri Moni Kr. Subba with a prayer to reject the Election Petition filed by Sri Hazarika as the said petition did not disclose any cause of action. The application under Order VII Rule 11 of the CPC so filed was numbered as Misc. Application 55/98. A reply by way of objection to this Misc. application was so filed on behalf of the Petitioner Sri Hazarika on 18.8.98 which is on the record. On 7.6.1999 when the matter was taken up for hearing of the Misc. Application No. 55/98, on behalf of the Petitioner of the said Election Petition, a petition got so filed for the withdrawal of the Election Petition No. 3/98 under the provisions of Section 109 of the Representation of the People Act, 1951 on the grounds mentioned in the petition and on the same day on behalf of Sri Moni Kr. Subba also a petition was filed along with annexure-A in support of his claims that he is not a citizen/resident of Nepal rather a citizen of India and his such claim is also fortified as detailed in such petition on the basis of a letter so issued on 15.5.98 by the Government of Nepal Ministry of Home Affairs.

Sri Hazarika is represented by the Sr. Advocate Sri N.N. Saikia assisted by the learned Counsel Sri P.K. Khataniar and Ors. whereas the Petitioner of this Misc. Case Sri M. Kr. Subba and Respondent No. 1 of the main Election Petition is represented by learned Sr. Counsel U.N. Bhachawat assisted by the learned Counsel Mr. Pradeep Agarwal and Ors. .

Both sides Lawyers are heard at length. On behalf of both sides written arguments are also filed and they are on the record and shall remain as part of the record.

Mr. Saikia, learned Sr. Counsel has submitted that he has lost interest in pursuing the present Election Petition for 2 reasons as indicated in his petition dated 7.6.99 firstly, because of the fact of his joining Indian National Congress (I) party during the pendency of this Election Petition and becoming the member of the same political party of the Respondent No. 1 Sri Moni Kr. Subba though during the time of election under challenge, he had fought the election being the member of Bharatiya Janata Party. Furthermore, it is submitted that because of 12th Lok Sabha being dissolved by His Excellency the President of India, no triable issues are left to be decided and the prayer so made is that the Election Petition becoming infructuous is not pressed by him. In support of his this contention that the leave be granted as to withdraw the main Election Petition the learned Sr. Counsel Mr. Saikia also claims himself to be fortified with some of the reported cases such as 1985 (4) SCC-621 Kripal Singh v. Uttam Singh and Ors. and has submitted that in an Election Petition so pending before the Apex Court since by flux of time there had been 3 more General Elections, the Apex Court was pleased to dispose of the appeal by declaring the appeal so pending to the infructuous. Anr. reported case so cited on this point is 1984 (Supl) SCC 398 Jasthavenkateswara Rao v. Ogguchinnabasva Reddy and Ors. in this case the Apex Court has held the appeal to be infructuous when though the Appellant was elected in bye-election but the High Court had set aside the election and debarring him for 6 years on charge of corrupt practice and the Supreme Court granted conditional stay of the High Court''s order but the Appellant not contesting in general election but by the time of the next general election his disqualification of 6 years'' debarment could lapse and hence the appeal was so disposed of becoming infructuous.

This will not be out of place to mention that when such petition on 7.6.99 was so filed on behalf of Sri Hazarika Election Petitioner u/s 109 of Representation of the People Act, 1951 as detailed above first of all the matter was heard on this point.

After hearing Sri Saikia, Learned Sr. Counsel that leave be granted accepting the said withdrawal petition said to have been so filed u/s 109 of Representation of the People Act, 1951 the other side Lawyer representing Mr. Moni Kr. Subba is also heard, Mr. U.N. Bhachawat learned Sr. Counsel representing Respondent No. 1 of the Election Petition has submitted that by plain reading of the petition so filed on behalf of Mr. Hazarika on 7.6.99, it will transpire that such petition was so filed in the garb of Section 109 of the Representation of People Act, 1951 but the relief so sought for is something different. At the foot of the petition it is pointed out that on behalf of Sri Hazarika the prayer is that the election petition be declared infructuous as--not pressed on behalf of the Petitioner. It has also been pointed out that a election petition cannot be withdrawn by the Petitioner without the leave of the High Court and the High Court will not allow withdrawal in case the High Court is of the opinion that any bargain or consideration has induced the withdrawal of the application. The process with regard to publish the withdrawal so accepted in the Gazette calling for objections from Ors. would arise if the leave is granted and such application so filed u/s 109 of the Act is accepted. In the instant case it is emphatically argued that in the background of the facts and circumstances and by plain reading of the petition dated 7.6.99 so filed on behalf of Sri Hazarika, it will transpire that as a matter of fact it is not a petition for withdrawal but a petition showing his unwillingness as in any way to press the allegations so put against Respondent No. 1 of the Election Petition so preferred by him and that being the position it may even be treated that Sri Hazarika, whatsoever reason may be. because of good sense prevailing, has rather conceded as not to press the matter and accepting all the contentions so put on behalf of Respondent No. 1 in a petition under Order VII Rule 11 of the CPC and accepting that there was no cause of action available to Sri Hazarika as to file the election petition. That being the position, it is prayed by the learned Counsel appearing for Moni Kr. Subba that the said petition so filed in the garb of Section 109 of the Representation of the People Act, 1951, the prayer portion and the relief so sought for being altogether different, the same be not entertained, the leave be not granted and rather the Misc. application so filed in which even the objection is filed on behalf of Sri Hazarika be taken up for hearing. The reported cases so cited are distinguishable as provisions of Section 109 & 110 of the Act do not apply in Election Appeals.

After hearing both sides Lawyers on this point particularly, keeping in mind that an Election Petition cannot be withdrawn by the Petitioner without the leave of the Court and in the background of the circumstances shown on behalf of Sri Hazarika as to file such petition particularly because of his shifting to the same party of Respondent No. 1, such petition so filed for withdrawal is thus not entertained and the leave is not granted and, therefore, there is no question of thus entering into the procedure as prescribed u/s 110 of the Representation of the People Act, 1951 as to notice entertaining objections.

As both the sides Lawyers then desired as to argue in connection with the Misc. case so filed under Order VII Rule 11 of the CPC on behalf of Sri Hazarika Mr. Saikia learned Sr. Counsel submits that for deciding the matter as to whether there was any cause of action or not so available to the election Petitioner, the evidence is also to be adduced which has been vehemently controverted by the other side Lawyer Mr. Bhachawat who submits that for deciding the preliminary objection so raised by filing this Misc. case, the same can very well be decided by plain reading of the Election Petition and the allegations so put thereunder. In support of his this contention Mr. Bhachawat, learned Sr. Counsel has referred to a reported case Mohinuddin alias Moin Master Vs. District Magistrate, Beed and Others, and by particularly, referring to its paragraph 8 it has been pointed out that if after striking out the pleadings, the court finds that no triable issues remain to be considered, it has power to reject the election petition under Order VII, Rule 11 of the CPC outright even without waiting the Defendant to file written statement. On the same point that when the preliminary objection is so raised under Order VII Rule 11 of the CPC it can well be disposed of by the Court without directing the parties to adduce evidence, Mr. Bhachawat. learned Sr. Counsel has also referred to Anr. reported case Azhar Hussain Vs. Rajiv Gandhi, and has particularly referred to its paragraphs 5, 7, 9 and 11. In support of his this contention it is submitted that the election petition can well be dismissed when there is no cause of action for filing the Election Petition, such petition being vexatious, frivolous and not disclosing any cause of action.

In the light of these two reported cases so cited by Mr. Bhachawat, the learned Sr. Counsel, the matter for deciding the Misc. case arising out of this election petition is taken up for hearing at length.

It is pointed out by Mr. Bhachawat, learned Sr. Counsel representing the Petitioner of this Misc. case and Respondent No. 1 of the main election petition that mainly 3 allegations are so put in the said election petition and they are (a) improper acceptance of the nomination papers of the returned candidate Respondent No. 1 in violation of the instructions issued by the Election Commission which was not so complied with when for his not being a convict of the offences detailed u/s 8 of the Representation of the People Act, 1951 along with the nomination papers he had to file affidavit in support of not being a convict which was not filed on duly stamped paper and before the appropriate magistrate; (b) the returned candidate Respondent No. 1 being also would have been disqualified u/s 9 of the Act which was not so done and (c) the improper acceptance of the nomination paper of Respondent No. 1 because of his being not a citizen in India. The other allegations so put are said to be incidental to these three allegations detailed above. For these three allegations so put, it is pointed out that it will transpire that there was no cause of action before the election Petitioner as to file election petition because the election petition on the very face of it is vexatious having no cause of action. In short, elaborating this point that the election Petitioner has had no cause of action relating to these main three allegations levelled, it is pointed out that as regards affidavit so filed not being duly stamped so called for from the candidates to declare that they are not convict of the offences detailed in Section 8 of the Representation of the People Act, 1951, it is pointed out that any such direction so given by the Election Commission to the Returning Officer is only directory and not mandatory in nature. In this connection, Mr. Bhachawat, learned Sr. Counsel has also referred to a reported case AIR 1985 SC-1233 Lakshmi Charan Sen and Ors. v. Election Commissioner and particularly, emphasis is put on its paragraph 21. The Apex Court it is pointed out has held that direction issued by the Election Commissioner though binding upon the Chief Electoral Officer cannot be treated as if they are law. In the instant case, it is submitted that if there was insufficient stamp, under the provisions of the Stamp Act utmost penalty would have been imposed for affixing insufficient stamps and the affidavit was so sworn before the Deputy Commissioner a competent authority and thus on that score there was no question of not accepting the nomination as challenged and the writ Petitioner has failed to show any cogent cause of action to be raised in the election petition challenging election. In all fairness Mr. Bhachawat however, has submitted that because of the dissolution of 12th Lok Sabha which is so made during the pendency of this election petition so filed, this reported case so cited with the argument so advanced on this point may for the present be a academical discussion but even then it attaches significance. Mr. Bhachawat learned Counsel submits that he would rather fail in duties if the court is not enlightened with the true state of affairs and the proposition of law prevailing which is to be looked in right perspective. Switching over to the second allegation so put that the returned candidate Respondent No. 1 would have been declared disqualified under the provisions of Section 9A of the Representation of the People Act, 1951, it is pointed out that true it is that Respondent No. 1 figuring as Petitioner in this Misc. case is having some business in some of the States like Sikim and Ors. but by the plain reading of Section 9A with that of Section 7 of the Act rather relate to the disqualification for government contract to a candidate having trade or business with the appropriate government for the supply of goods to, or for the execution of any works undertaken by that government and the appropriate government is so defined u/s 7(a) of the Act which means in relation to any disqualification for being chosen or as or for being a member of either House of Parliament, the Central Government and since Respondent No. 1 was returned for 12th Lok Sabha election, the appropriate government in such circumstance was the Central Government and it is emphatically argued that the returned candidate Respondent No. 1 who is the Petitioner of the Misc. Case has had not subsisting trade with the Central Government and in that light there was no question of declaring him disqualified which was so rightly not done by the Returning Officer and thus this allegation so put is also fictitious and the election Petitioner had no cause of action.

Out of the three main allegations so put it is submitted by Mr. Bhachawat, learned Sr. Counsel that the main allegation was that the returned candidate Respondent No. 1''s nomination should not have been accepted because of he being not a citizen of India as claimed by the Petitioner Sri Hazarika detailed in paragraph-22 of the election petition. According to the election Petitioner Sir Moni Kr. Subba was a citizen of Nepal and was a foreigner or an illegal migrant and not entitled to be a voter elector of India and that he got his name enrolled as voter in Lakhimpur district some how in 1979 and when in 1984 Respondent No. 1 applied for inclusion of his name in electoral roll of Pendem Assembly constituency in Sikim and applied for the same, an objection was so filed against such prayer and after enquiry into the claim and objection which was so conducted by the electoral Registration Officer, Gangtok and report was submitted that Sri Moni Kr. Subba did not fulfil the criteria for enumeration as a voter as required u/s 16 of Representation of the People Act, 1951 and prayer for inclusion of his name in the said constituency at Sikim was not entertained. In this connection, on behalf of Respondent No. 1 it is pointed out that the name of Sri Moni Kr. Subba very much finds place in the electoral roll as one of the voters electors in Lakhimpur district in the electoral roll so prepared in 1979 and which is so coming since then undisturbed and thus any objection so raised before the Returning Officer was so rightly overruled after summery enquiry and the nomination paper was rightly accepted. Reference with regard to such enquiry so made and the order so passed, attention is drawn to the order so passed by the Returning Officer, a copy of which is filed and marked as Annexure-5 in the main election petition. In support of his this contention it has also been pointed out that on 7.6.99 on behalf of Respondent No. l who is the Petitioner of this Misc. case, a petition is so filed attaching a certificate so granted by the Government of Nepal (Annexure-A) showing that Shri Moni Kr. Subba was not a citizen of Nepal which also fortifies the stand so taken by him that he happens to be the citizen of India, his name finding place in the Lakhimpur district State of Assam Electoral Roll right from the year 1979 and before the Returning Officer there was no alternative but to presume that Sri Moni Kr. Subba was the citizen of India unless any such order passed by the Central Govt/Tribunal could have been shown otherwise. In all fairness it is pointed out that a citizenship of a person is not to be decided by the Returning Officer or such relief also not been sought for in the election Petitioner for declaring or not declaring a person to be a citizen of India, that is rather to be decided by the competent authority of the Central Government or by the Tribunal under Citizenship Act 1955 or under the Illegal Migrants (Determination by Tribunal) Act 1983 or Foreigner''s Act, 1946 and in such circumstance, is thus emphatically argued that the election petition had thus failed to show any cause of action for the allegation so put in pargaraph 22 of the election petition. In support of this contention that after summary enquiry the Returning Officer was perfectly justified in accepting the nomination taking the returned candidate to be the citizen of India in the background of his name finding place in the electoral roll since 1979. Mr. Bhachawat, learned Sr. Counsel has also referred to some of the reported cases Bhagwati Prasad Dixit ''Ghorewala'' Vs. Rajeev Gandhi, and has particularly referred to its paragraph-11. He has also referred to Anr. reported case Md. Sibar Uddin and Others Vs. Union of India (UOI) and Others, In support of his this contention Mr. Bhachawat has also referred to Anr. reported case Indrajit Barua and Others Vs. Election Commission of India and Others, and particularly its paragraph 3 is referred. It is in the background of the facts and circumstances and also in the background of the reported cases so cited, the submission is that if the election Petitioner wanted to declare the Respondent No. 1 as Illegal Migrant from Nepal in that case the question of citizenship is to be decided not in the election petition and also not by the Election Commission but under the Citizenship Act, 1955 or the Foreigners Act or Illegal Migrants (Determination by Tribunal Act), 1983 for which any person so challenging his citizenship has to do so before the competent authority and any such order coming from the Central Government or Tribunal can only be binding on the Returning Officer or Election Commission and till such order is not produced passed by the competent authority of the Central Govt. or the Tribunal on the point of Citizenship, because of the Respondent No. 1 returned candidate figuring in this Misc. case as Petitioner his name finding place in the electoral roll since 1979 without any interruption it has to be presumed that Sri Moni Kr. Subba is the citizen of India which has thus rightly been accepted. The Respondent No. 1 as citizen of India has thus rightly been recognized and the election Petitioner had thus failed to show any cause of action for the allegations so put also in paragraph 22 of the election petition. In nutshell, it is submitted that all the three allegations so put had no leg to stand as there was no cause of action available thus it can well be said to be vexatious based on fictitious ground and the election petition is liable to be dismissed outright.

On behalf of the election Petitioner who is the O.R in this Misc. case Mr. N.N. Saikia, learned Sr. Counsel has nothing more to add except submitting that to the petition so filed under Order VII, Rule 11 of the CPC an objection has already been filed in writing on behalf of Mr. Hazarika which is on the record. It is once again argued that if the preliminary objection so raised that the election Petitioner has no cause of action that is to be decided only after examining the witnesses, which does not seem tenable.

After hearing both side Lawyers, taking into consideration the facts discussed above, though the dissolution of 12th Lok Sabha was made during the pendency of this election petition, some of the arguments so made may be academical discussion but in my considered opinion, the points so raised particularly showing that the election Petitioner had no cause of action as to file the election petition are convincing and there is much of strength in the argument so advanced by the learned Counsel representing Respondent No. 1 who is the Petitioner of this Misc. case that this election petition is thus liable to be dismissed summarily because of no cause of action being shown relating to the allegations so put which can rather well be said to be vexatious. Coming to the main allegation so put in paragraph 22 of the writ petition challenging the citizenship of Sri Moni Kumar Subba which is the vital allegation out of three, admittedly his name finds place in the electoral roll so prepared in 1979 and is coming since then. Electoral Roll is a list of persons who are entitled to vote at an election. Normally, an entry in the electoral roll is conclusively to prove the elector''s right to vote at that election and thus when the name of a person finds place in the electoral roll, his right to vote cannot be questioned because the electoral rolls are so prepared in accordance with the statutory provisions so contained u/s 16 to 24 of the Representation of the People''s Act, 1951. The Indian Constitution it further transpires has accepted the principle of adult suffrage, the elections to the House of People and to the Legislative Assembly of every State is also on the basis of adult suffrage that is to say, every person who is a citizen of India has a right to vote if he or she comes to the prescribed age group of the Representation of the People Act, 1951 which has laid down the prescribed procedure for the preparation of the electoral roll. The job of preparation of electoral roll is entrusted with the special machinery created for the purpose and thus once the name of a person finds place in the electoral roll duly prepared he or she has to be presumed to be the citizen of India unless in contrary order is so passed by the competent authority i.e. the Central Government or the Tribunal under the Citizenship Act, 1955 or the Foreigners Act, 1946 or the Illegal Migrants (Determinations by Tribunal) Act, 1983. In the notes of argument so also filed which is kept on the record and is to be treated as part of the record, the extracts of relevant paragraphs of the relevant cases so cited are detailed on behalf of the Respondent No. 1 the Petitioner of this Misc. case which are gone through with great care and need not be repeated. The reported cases so cited on behalf of the Respondent No. 1 being represented by Mr. Bhachawat. learned Senior Counsel have thus shown sufficient ground as to come to the conclusion that in connection with the allegations so put in paragraph 22 of the main election petition, the Election Petitioner had no cause of action and in the background of the name of Respondent No. 1 (returned candidate) so continuing in the electoral roll, the presumption was of his being the citizen of India unless contrary order would have been shown before the Election Commissioner or Returning Officer, so passed by the competent authority that is either the Central Government/Tribunal and for passing such order deciding the citizenship under the provisions of Citizenship Act, 1955 and the Illegal Migrants (Determination by Tribunal) Act, 1983. The order of the E.R.O., Gangtok dated 1.2.85 throwing suspicion on the preparation of the electoral roll, 1979 particularly, entering the name of Respondent No. 1 as elector has no significance in the light of the name of Respondent No. 1 continuously coming on the electoral roll of Lakhimpur District from 1979 onward to this date and furthermore by way of abandon caution, the certificate of the Government of Nepal dated 15.5.98 so issued from its Home Department, a copy of which is filed along with tile petition on behalf of the Respondent No. 1 on 7.6.99 also fortifies the stand so taken by the Respondent No. 1 the Petitioner of this Misc. case as to take him to be the citizen of India unless any contrary order to that effect is being issued by the competent authority i.e. the Central Government or Tribunal. It has been discussed at length that when a person challenges the election petition under Order VII, Rule 11 of the CPC that is very much entertainable as also detailed in some of the reported cases of the Apex Court referred to on behalf of the Respondent No. 1 detailed at length in the notes of argument and the High Court has got thus power as to dismiss the election petition after hearing the preliminary objection at the initial stage even at the stage prior to the filing of the written statement. In my considered opinion, this is a fit case in which the Respondent No. 1 -Petitioner of this Misc. case has succeeded to establish that before the election Petitioner there was no cause of action to file the election petition under challenge and is thus liable to be dismissed at the very threshold Judgments so cited of the Apex Court in the notes of argument also lead to conclude the same that after striking out the pleadings so taken in the election petition thus nothing remains as triable issues. The other allegations so put are in my considered opinion incidental to the main allegations so put detailed above for which after scrutiny no cause of action for putting such allegations were so found--As regards the affidavit so filed in the background of the provisions of Section 8 of the Act such direction so coming from the election commission under Article 324 of the Constitution can only be said to directory and not mandatory and the learned Counsel Mr. Bhachawat has rightly claimed himself to be fortified on this point by referring to the reported cases as detailed above.

That being the position the Election Commission of India''s direction dated 28.8.97 for accepting such affidavit at the time of filing of the election petition by the contesting candidate in my considered opinion is directory and if there was insufficient stamping, it may not be a ground for disqualifying the Respondent No. 1 which has thus rightly been not done by the Returning Officer. So is the case when it was challenged that u/s 9A of the Act, Respondent No. 1 would have been declared disqualified. Since the Respondent No. 1 had contested for Lok Sabha seat, the appropriate Govt. was the Central Govt. and the allegations so put of its having trade with some of the State Government, thus by going through the provisions of Section 9A read with Section 7 of the Act had no bearing.

Summing up, the election Petitioners Sri I.P. Hazarika had thus no cause of action as to file the election Petitioner bearing No. 3/98 as had no cause of action relating to main three allegations and incidental allegations raised out of the main three allegations, detailed and analytically discussed above and the Misc. case so filed under Order VII, Rule 11 of the CPC is liable to be allowed which is so allowed in favour of the Petitioner of the Misc. Case 55/98 arising out of Election Petition 3/ 98. Needless to say once against that any dispute so raised for conclusively deciding the matter relating to the citizenship of a person, is not to be decided by the Election Commission or in Election petition but is to be decided under the Citizenship Act 1955, the Foreigners'' Act 1946 or the Illegal Migrants (Determination by Tribunal) Act, 1983 by the competent Authority i.e. the Central Government/Tribunal and the same is thus left open.

Consequently, allowing this Misc. Case finding no cause of action available to the Election Petitioner Sri Iswar Prasanna Hazarika relating to the allegations so detailed in the Election Petition No. 3/98, the same is dismissed in the background of the preliminarily objection so raised under Order VII, Rule 11 of the CPC by the Petitioner of this Misc. case figuring as Respondent No. 1 in the main election petition and the objections in Misc. case so raised any being accepted.

In that light, Election Petition No. 3/98 also stands accordingly disposed of. No separate order as to costs.