Md. Amin Shah vs Nahakpam Indrajit Singh And Others

Kh. Nobin Singh, J

[1] Heard Shri S. Biswajit Meitei, learned counsel appearing for the applicant/ petitioner and Shri M. Devananda, learned counsel appearing for the respondent No.1.

[2] This is an application filed by the applicant /petitioner praying for grant of leave of this Court to file a replication under Order VIII Rule 9 of C.P.C read with Section 87 of the Representation of People Act, 1951 on the inter-alia grounds that after having gone through a copy of the written statement served upon him, it was found that new facts were disclosed therein which are required to be refuted by filing a replication and in the event of the application not being allowed to be filed, an irreparable injury would be caused to the applicant/petitioner which cannot be compensated in terms of money.

[3] A written objection has been filed by the respondent No. 1 wherein it has been stated that he has given only the necessary reply to the election petition filed by the applicant/ petitioner and as such, there is no question of disclosing new facts in the written statement and moreover, in the replication sought to be filed by the applicant/ petitioner, many new facts/ grounds are found which the applicant/ petitioner didn't plead at the time of filing the election petition and therefore, the proposed replication of the applicant/ petitioner is barred by limitation under Section 81 of the Representation of People Act, 1951 and in order to avoid further complication in the matter, the instant application deserves to be dismissed in-limine.

[4] In order to appreciate the rival contentions, the averments made by the parties in their respective election petition and the written statement, are required to be gone into by this Court. According to the applicant/ petitioner, the material facts and particulars have been stated in para 4.5 to 4.9 of the election petition which are relevant for the present and are given as under (without the portion of marking of annexure):

"4.5 That, recently, it is found that one FIR Case being FIR No.77(3) 2013 City PS under section 38, 39, 40 UA (P) Act and 380/ 120-B IPC is pending against the respondent No.1 in City Police Station, Imphal and in connection with the FIR Case, the respondent No. 1 was arrested by the Police of City Police Station and produced before the Ld. Chief Judicial Magistrate/ Imphal West and remanded to police Custody. The respondent No.1 deliberately concealed the pendency of the FIR Case in the affidavit filed along with nomination paper before the Returning Officer of 4-Kshetrigao Assembly Constituency. The respondent No.1 filled up the affidavit in column No.(1) (a) of para No. 5 as "Not Applicable" and further the respondent No.1 filled up the column No. (1) (b), (c), (d), (e) and (f) of para No. 5 as "N.A".

The respondent No.1 has failed to furnish the detail information about the FIR Case being FIR No.77(3) 2013 City PS under section 38, 39, 40 UA(P) Act and 384/120-B IPC but the RO of 4-Kshetrigao AC had accepted the nomination paper of the respondent No.1 improperly. The petitioner has filed an application to the Superintendent of Police, Imphal West District, Manipur for directing the OC/ City PS to issue a certified copy of the said FIR Case. However, the copy of the said FIR Case has not been received by the petitioner till date.

4.6 That, in the affidavit along with nomination paper filed by the respondent No.1 before the RO of 4-Kshetrigao AC for the election of 11th Manipur Legislative Assembly Election, 2017, the respondent No.1 had mentioned in the column No. (3), (4) (5) (Dependent) of para No. 4 as "NA". Whereas, the respondent No.1 has 3(three) children-2(two) daughters and 1(one) son born through his wife namely Nahakpam (O) Rekha Devi and as such he failed to furnish the detail information in the affidavit along with nomination paper filed before RO of 4-Kshetrigao AC.

The respondent no. 1 had filled up in column No.(iv) of para No. 5 in respect of dependent No. 1, 2 and 3 for payment of LIC policy and in respect of dependant No. 3 it was mentioned as "NIL" in the affidavit along with the nomination paper for the election to 10th Manipur Legislative Assembly 2012 from 9-Thangmeiband(Gen) AC filed by the respondent No. 1 before the R.O of 9-Thangmeiband(Gen) AC.

4.7. That, the respondent no. 1 had left the column no. 2 of para no. 7 in respect of the column of dependents as blank in the affidavit filed by him along with the nomination paper before the R.O. of the 4-Kshetrigao.

Further, the respondent no.1 had not filled up the area (total measurement in sq. feet) and also built up area (total measurement in sq. feet) and simply mentioned the same as "N.A" in respect of his column which is not appropriate. The respondent no. 1 had also left the columns viz; date of purchase in case of self acquired property, cost of land (in case of purchase) at the time of purchase and any investment on the land by way of development, construction etc. as blank in respect of his column in column no. (IV) of para no. 7B in the affidavit filed along with nomination paper.

In the affidavit filed by the candidate along with his nomination paper, the candidate is required to fill up all columns therein and no column can be left blank. Therefore, at the time of filing affidavit, the returning officer has to check whether all column of the affidavit filed with nomination paper are filed up. If not, the Returning Officer shall give the reminder to the candidate to furnish information against blank columns. If there is no information to be furnished against any item, appropriate remarks such as "NIL" or "Not Applicable" or "Not Known" as may applicable shall be indicated in such column. The candidate should not leave any column blank. If a candidate fails to fill the blanks even after reminder, the nomination paper will be liable to be rejected by the Returning Officer at the time of Scrutiny of nomination papers. The R.O of 4-Kshetrigao A.C has accepted the said affidavit filed along with the nomination paper improperly.

4.8 That, the respondent no.1 had filled up the value of jewellery, bullion and valuable thing in respect of him and his spouse in column no. (VII) of para no.7 of part-A of the affidavit along with nomination paper filed by him before the R.O of 4-Kshetrigao A.C. However, the value of the one gold chain, 4 rings (40 sans) belonging to the respondent no.1 which mentioned as Rs.3,20,000/-and another one gold chain, one pair of ear ring and 4 rings (40 Sans) filled up in the column of the spouse which also mentioned as Rs.1,20,00/- are found different at the variation of Rs.2,00,000/-thereby creating a confusion upon the mind of innocent voters.

4.9. That, it is submitted that if the R.O. of 4-Kshetrigao A.C. had not accepted the nomination of the Respondent No. 1, the petitioner would have been declared as the Returned Candidate from 4-Kshetrigao A.C. The R.O. of 4-Kshetrigao A.C. improperly accepted the nomination of the Respondent no.1 in as much the respondent no.1 had suppressed or concealed the material facts in his Affidavit under Form 26 in that he failed to disclose his Criminal /FIR Case being FIR No. 77(3)2013 City P.S under Section 38,39,40 UPA Act. 384/120-B IPC in column No. 5(1) (a) of his affidavit dated 13-02-2017 under Form 26, Rule 4 A filed along with his nomination. Not only is that in para No.4 of part A of the same affidavit in column No.3, 4 and 5 the name of dependents also not disclosed. Again, in part A i,e. the details of assets, in column No. (vii) of para no. 7 of the same affidavit, the quantity of gold is mentioned but the value of the same is/ are not mentioned. As such, the respondent no.1 has suppressed the material facts in his affidavit dated 13-02-2017 which are required under the law."

[5] In response thereto, the respondent No.1, in his written statement, has stated as under:

"7. That, with reference to para No. 4.5, the deponent denies the allegation and averment made therein.

7.1 The said FIR case being FIR No. 77(3) 2013 City PS under Section 38, 39, 40 UA (P) Act and 384/120-B IPC case had been closed vide an order dated 19.04.2014 passed in Cril Misc, Case No. 234 of 2014 by the Hon„ble Chief Judicial Magistrate, Imphal West, Manipur. Accordingly, the deponent had already been discharged from the said case and have nothing to do with the same at the time of filing his nomination in connection with the election. The allegation made by the petitioner against the deponent is misconceived, unfounded with wild allegation and he is liable to strict proof of the allegation made therein. As such, the petition is liable to be dismissed as not maintainable and defective.

That, with reference to para No. 4.6, the deponent denies the allegation and averment made therein. It is pertinent to mention here that, para No. 2 of the affidavit filed by the deponent in the 10th of the Manipur Legislative Assembly Election, 2012 from 9-Thangmeiband General Assembly Constituency, the said para No. 2 contents of details of PAN and status of filing of Income Tax return, in the said para No.2 of the affidavit the deponent mention his dependents No. 1 to 3 is hereby reflected as NIL in the column of Permanent Account Number, the financial year for which the last Income Tax Return has been filed, total income shown in the Income Tax Return(in Rupees).Whereas, in para no. 4 of the affidavit filed by the deponent in the 11th Manipur Legislative Assembly Election, 2017 from 4-Kshetrigao Assembly Constituency the said para no. 4 is hereby reproduced as ―Details of Permanent Account Number (PAN) and status of filing of Income Tax return‖. In the said para No. 4 the deponent has written as N.A (Not Applicable) for all his 3 (three) dependents in the column of Permanent Account Number (PAN), the financial year for which the last Income Tax Return has been filed, and total shown in Income Tax Return (in Rupees). Hence, there is no difference in the respective affidavit of the 10th Manipur Legislative Assembly Election, 2012 from 9- Thangmeiband Assembly Constituency and in the 11th Manipur Legislative Assembly Election, 2017 from 4-Kshetrigao Assembly Constituency in connection with the information sought for Permanent Account Number (PAN), the financial year for which the last Income Tax Return has been filed, and total income shown in Income Tax Return (In Rupees) for his 3 (three) dependents. Hence, the allegation made by the petitioner has no basis and is liable to be dismissed.

That, with reference to para No. 4.7, the deponent denies the allegation and averment made therein.

9.1 The deponent begs to submit that he could not find the column no. 2 of para No. 7 in the purported affidavit filed by him along with the nomination paper before the Returning Officer of the 4-Kshetrigao. The question of blank left by the deponent in the column of his dependents would not serve any purpose for cancelling the deponent as the return candidate of the 11th Manipur Legislative Assembly Election, 2017 from 4-Kshetrigao Assembly Constituency.

9.2 That, with reference to the column No. (iv) of para No. 7 B in the affidavit along with nomination paper, the deponent submit the said immovable property is a joint property jointly owned with his spouse. As such, the deponent in order to avoid repetition and confusion furnished the requisite details in the column of his spouse. The column which seems to leave blank appearing at page No. 56 of the petition is the continuation of the column No. (iv) of para No. 7 B appearing at page No. 55 of the petition.

9.3 The omission left in the column in the nomination paper will not serve any purpose for cancelling the return candidate in any manner of the 11th Manipur Legislative Assembly Election, 2017 from 4-Kshetrigao Assembly Constituency. Whereas, the R.O of 4-Kshetrigao Assembly Constituency has accepted the nomination paper of all the candidates in presence of the petitioner along with the other contesting candidates, and the petitioner has not raised any objection during the process of the nomination paper till scrutiny which as held on 16.02.2017. Hence, the allegation made by the petitioner against the deponent after losing the election has no tenable in the eyes of law.

That, with reference to para No. 4.8 of the Election Petition, the deponent denies the allegation and averment made therein. The deponent further submit that the different value of gold filed by the deponent in his affidavit is depend upon the quality and the year purchase by the parties. Hence, there is no question of confusion upon the minds of innocent voters.

[6] At the time of hearing the application, Shri M. Devananda, the learned counsel appearing for the respondent No.1 has submitted that the averments made in para 10, 11 and 12 of the replication, are new facts which read as under:

"10. That, with reference to para No. 12 of the written statement, the answering petitioner submits that the respondent No. 1 simply denies the contentions made in the election petition without giving any appropriate and reasonable explanation. It is held that mere denial of contention does not serve any purpose. As regards the mandates given under the provision of Article 19 of the Constitution of India on freedom of speech and expression certain mandatory instruction are given by the Election Commission of India as directed by the Apex Court one of such mandatory instruction / requirement is "education qualification of the candidate".

In the present case, para No. 10 of the affidavit enclosed with the nomination of the respondent No. 1 provides information about his (Respondent No. 1) educational qualification. According to the said para No. 10 the respondent No. 1 is "XII standard from Council of Higher Secondary Education Manipur from Kumbi College under Roll No. 2138 in the year, 1994".

However, on enquiry of the said particulars of educational qualification given in the affidavit it is found to be of one Shri Nahakpam Indrakumar Singh, S/o N. Moirangningthou Singh of Wangkhei as per the Communication dated 19-07-2017 issued by the Principal, Kumbi College on an application dated 17-07-2017 made by the answering petitioner. The election petitioner applied for the said information about the HSSLC (XII class) of that particular Roll number and Year to the Council of Higher Secondary Education, Manipur. However the Council of Higher Secondary Education, Manipur abruptly denied to furnish the information under RTI made by the petitioner on 03-05-2017 vide letter dated 09-06-2017. Being aggrieved by the said letter bearing No. 3 (v)/1/14-HSC(Pt.II)/2824 issued by the Secretary, Council of Higher Secondary Education, Manipur dated 09-06-2017, the election petitioner filed an appeal before the Manipur Information Commission being Appeal Case no. 113 of 2017 and the same has been allowed vide decision dated 05-08-2017 with direction to give the information sought for.

That, it is submitted that the said information about the particular Roll Number given by the respondent No. 1 in his affidavit has been served by the Council of Higher Secondary Education Manipur vide letter no. 3(v)/1/14-HSC(Pt.II)/2908 dated 11-08-2017 as directed by the Manipur Information Commission, Manipur as stated above.

The election petitioner further submitted that the said Nahakpam Indrakumar Singh, S/o N. Moirangningthou Singh who passed the HSSLC Certificate Examination 1994 under Roll No. 2138 had passed the HSLC Examination 1992 under Roll No. 9499 from Christian English High School, Saikul from the Board of Secondary Education Manipur as per information furnished vide communication dated 17-05-2017 issued by the Board of Secondary Education Manipur under an application under the RTI. The Respondent No. 1 also mentioned the above HSSLC Examination 1994 under Roll No. 2138 in the affidavit filed along with the nomination to the 10th Manipur Legislative Assembly, 2012 from 9-Thangmeiband A/C. Since 2012, the Respondent No. 1 was making this statement that he passed class XII Examination of Council of Higher Secondary Education, Manipur under Roll No. 2138 as NAHAKPAM INDRAJIT SINGH, in the affidavit filed with the nomination. The information provided by the Respondent No. 1 in the affidavit filed in form No. 26 would amount to false declaration.

That, the petitioner also confirmed from the RTI reply vide letter no. G/182/07/58 dated 17-05-2017 issued by the Secretary, Board of Secondary Education Manipur that the details of the candidate who appeared HSLC Examination in 1992 under Roll No. 9499 as per record of Board of Secondary Education, Manipur is Nahakpam Indrakumar Singh (Male), Father Name: Nahakpam Moirangningthou Singh of Thambalkhong Sabal Leikai, School: Christian English High School, Saikul and its is also further replied that no certificate has been issued to one Shri. Nahakpam Indrajit Singh, S/o N. Moirangningthou Singh of Wankhei for passing Class-X Examination.

Further it is also confirmed that the name of the candidate who appeared in the Higher Secondary School Leaving Certificate Examination 1994 under Roll No. 2138 from kumbi Colege is Nahakpam Indrakumar Singh of Wangkhei vide letter No. 3(v)/1/14-HSC(Pt.II)/2908 dated 11-08-2017 issued by the Secretary, Council of Higher Secondary Education, Manipur."

On perusal of the averments in the replication and in particular, para 10, 11 and 12 thereof, it is seen that the submission of the learned counsel appearing for the respondent No.1 is right to that extent. But it has been submitted by Shri S. Biswajit Meitei, the learned counsel appearing for the applicant/ petitioner that in view of the decisions rendered by the Hon‟ble Supreme Court, the Election Commission of India was directed to call for information from each candidate seeking election to a legislature as a necessary part of the nomination paper and in particular, the information on the aspects namely criminal records, assets, liabilities, educational qualifications of the candidates. It has further been submitted that the respondent No.1 has failed to furnish information as regards the educational qualifications and that the averments made in para 10, 11 and 12 are nothing but to show his failure in this regard.

[7] It may be noted that the allegation in the election petition is that the respondent No.1 has failed to furnish information in the affidavit filed along with the nomination paper and in other words, many of the columns have been left blank. Each candidate is required to fill up all columns and if not done so by any of the candidates, the Returning Officer shall give a reminder to the candidate to furnish information against blank columns. If there is no information to be furnished against any item, appropriate remark such "nil" or "not applicable" as may be applicable, shall be indicated against such column. If the candidate fails to fill up the blanks even after the reminder, the nomination paper shall be liable to be rejected by the Returning Officer at the time of scrutiny of the nomination paper. The further allegation is that even though many columns have been left blank, the Returning Officer has accepted the nomination paper of the respondent No.1 and such improper acceptance has materially affected the election of the applicant/ petitioner and that if the Returning officer had rejected the nomination paper of the respondent No.1, the applicant/ petitioner would have been declared as the returned candidate.

[8] On perusal of the affidavit filed by the respondent No.1 along with the nomination paper and annexed herewith as Annexure-A/6, it is evident that certain columns and in particular, column 4 with respect to status of filing income tax, column 7 (ii) with respect to dependents, column 8(iv) as regards the immovable assets, have been prima facie left blank. As regards his educational qualification, the information furnished by the respondent No.1 is as under:

"XII standard from Council of Higher Secondary Education, Manipur from Kumbi College under Roll No. 2138 in the year 1994."

In the replication, what has been sought to be stated by the applicant/ petitioner is that the respondent No.1, in his affidavit filed in respect of the 10th Manipur Legislative Assembly, 2012, has declared that he passed the XII standard examination under the Council of Higher Secondary Education, Manipur under Roll No. 2138 as "Nahakpam Indrajit Singh" while the information furnished by the Principal, Kumbi College and the Secretary, Council of Higher Secondary Education, Manipur have shown that the person who appeared the XII standard examination, 1994 under the Roll No.2138 is the one in the name of Shri "Nahakpam Indrakumar Singh". This allegation, if found to be true, may amount to filing a false affidavit along with the nomination paper by the respondent No.1. But in the election petition, there is no any averment or for that matter, any allegation as regards the educational qualification of the respondent No.1 and therefore, the averments made in the replication and in particular, in para 10, 11 & 12 thereof can be said to be new facts and moreover, it is not the case of the applicant/ petitioner that the respondent has filed a false affidavit. The case of the applicant/ petitioner, in short, is that the respondent No.1 has failed to furnish details as required to be provided against the various columns in the prescribed format. Therefore, this court is of the view that the application can be allowed and consequently, the replication can be taken on record except the averments made in para 10, 11 & 12 thereof.

[9] In view of the above, the application is allowed in part with the direction that the replication filed by the applicant/ petitioner, along with the application, shall be taken on record except the averments made in para 10, 11 & 12 of the replication.