Ningthoujam Mangi vs Sanasam Bira Singh And Others

Kh. Nobin Singh, J

[1] Heard Shri A. Mohendro, learned Advocate appearing for the applicant/petitioner and Shri B.R. Sharma, learned counsel appearing for the respondent No.1.

[2] This is an application filed by the applicant/ petitioner under order VIII Rule 9 CPC read with Section 87(1) of the RP Act, 1951 praying for grant of leave to file the subsequent pleading / rejoinder/ replication in answering to new facts as stated in written statement of the respondent No.1 on the ground that there were certain facts and allegations made by the respondent No.1 in his written statement. According to the applicant/ petitioner, unless the leave is granted by this court, the applicant/ petitioner will suffer injury, while no injury will be caused to the respondent No.1 by granting it. But it is nowhere stated in the application as to what are those new facts alleged to have been stated in the written statement.

[3] A written objection to the said application, has been filed by the respondent No.1, the relevant paragraph of which reads as:

"3. The present answering respondent raise objection to the filing of the replication/ subsequent pleading on the following grounds:-

(i) The answering respondent in his written statement had only answered/ replied to the contents of the election petition and did not bring in any new facts and as such there is no requirement of filing the replication / subsequent pleadings by the election petitioner;

(ii) The replication/ subsequent pleadings sought to be filed by the election petitioner contains new facts and if allowed would amount to allowing the amendment of the election petition which should not be allowed after the limitation i.e. within 45 days from the election of the returned candidates u/s 81 of the R.P. Act 1951. The election petitioner is trying to bring-in more cause of action which cannot be allowed after the said limitation.

(iii) The election petitioner has sought to file many documents through the filing of the replication which cannot be allowed."

In his written objection also, the respondent No.1 has not specified the new facts alleged to have been stated by the applicant/ petitioner in the replication.

[4] The allegations made in the election petition can be divided into two- firstly, from the election expenditure account submitted by the respondent No.1 on 10.04.2017 to the District Election Officer, Bishnupur, it is reflected that he received a sum of Rs.3,00,000/-(Rupees three lakhs) from Shri A. Priyokumar by cash on 10.03.2017 and another sum of Rs.63,500/-( Rupees sixty three thousand and five hundred) from Shri L. Bhoben on 11.03.2017 by cash as donations and a sum of Rs.961 as loan. The factum of having received a total sum of Rs. 3,64,461/- (Rupees three lakhs sixty four thousand and four hundred sixty one) was recorded in the summary report prepared by the District Election Officer, Bishnupur. The receipt of donation for a sum of Rs.3,00,000/- (Rupees three lakhs) and Rs. 63,500/- (Rupees sixty three thousand and five hundred) by cash on 10.03.2017 and 11.03.2017 by the respondent No.1 as reflected in his Abstract Statement of Election Expenses dated 10.04.2017, amounted to commission of corrupt practice within the meaning of Section 123(6) of the Act, 1951. Hence, the election of the respondent No.1 is illegal and is liable to be set aside under Section 100(1)(b) of the Act, 1951. As per the provisions of Section 33 and 33(A) of the Act, 1951 read with Rule 4A of the Conduct of the Elections Rules, 1961, a candidate is required to file an affidavit duly sworn to along with his nomination paper. Secondly, the respondent No.1 made a false declaration / statement in his affidavit dated 13.02.2017, filed along with his nomination paper, pertaining to his liabilities towards financial Institutions/ Bank. He took a loan for a sum of Rs.10,00,00/- (Rupees ten lakhs) from the State Bank of India for buying a motor car/ vehicle which he failed to purchase and In addition thereto, he obtained another loan of Rs.5,00,000/- (Rupees five lakhs) only being the advance for purchase of a motor car and this time too, no motor car was purchased by him. These facts were not disclosed by the respondent No.1 in his affidavit dated 13.02.2017 filed before the Returning Officer who ought to have rejected such nomination but since his nomination was not rejected by the Returning Officer, the respondent No.1 was allowed to contest the election. Due to improper acceptance of the nomination paper of the respondent No.1 by the Returning Officer, the result of the election in so far as it concerns with the respondent No.1 had been materially affected and therefore, a prayer had been made to declare the election of the respondent No.1 as returned candidate as null and void.

[5] In the written statement, it has been stated by the respondent No.1 that the receipt of donation of Rs.3 Lakhs and Rs.63,500/- and a loan amount of Rs. 961/- ( Rupees nine hundred and sixty one) did not violate the direction of the Election Commission of India, in view of the fact that the alleged donation amounts were not from a single person. As regards the donation amount of 3 lakhs, it was donated by 20 (twenty) well wishers of the respondent No.1-each donating Rs.15,000/-(Rupees fifteen thousand) and similarly, the donation amount of Rs.63,500/- was donated by 5 (five) well wishers of the respondent No.1 whose donation amount did not cross the ceiling limit of Rs. 20,000/- as per the instructions of the Election Commission of India (ECI). In this regard, the additional election agent of the respondent No.1 vide his letter dated 02.04.2017, in response to the notice of the Returning Officer dated 11.04.2017, furnished the explanation about the said donations and loans mentioned in the election petition and the satisfaction of the concerned authority was reflected in the scrutiny report of the District Election Officer on election expenses of the candidates under Rule 89 of C.E Rule,1961 with the remark that the candidate had rectified the defect. Since the ECI had accepted the explanation, there was no question of the instructions of the ECI being violated and that a receipt of such donation did not amount to commission of corrupt practice under Section 123(6) of the Act, 1951. As regards the loan taken by the respondent No.1 for a sum of Rs.10 lakhs and another sum of Rs.5 lakhs form SBI, the deductions made out of it by the bank, were reflected in the annexure A/4 and A/5 of the election petition meaning thereby that there had been a total outstanding loan amount of Rs.11,61,145/- which was clearly mentioned in the affidavit of the respondent No.1 and therefore, there was no question of non-disclosure about the said loans and in particular, the outstanding loan amount. The allegation made by the applicant/ petitioner that the respondent no.1 made false statement in affidavit dated 13.02.2017, was absolutely incorrect.

[6] Since both the parties have failed to specify the new facts as alleged by them as stated hereinabove, this court has no option but to go through the replication and on perusal thereof, it is seen that in the replication, an endeavour has been made by the applicant/ petitioner to explain the allegations made in the election petition but while doing so, certain new facts which were not pleaded in the election petition, have been pleaded in para 8 of the replication and in particular, the allegation that in collusion with the respondent No.1, three back dated affidavits were enclosed. The said back dated affidavits were not produced by the respondent No.1 in the reconciliation meeting with the result that the expenditure observer did not cancel or review the observation made in its summary report. These new facts are based on the information received from the Law Department, Government of Manipur. The relevant portion of para 8 which contain new facts, read as under:

"in collusion with the Respondent No. 1, 3(three) back dated Affidavit dated 10/3/2017 sworn by Asem Priyokumar Singh, the back dated Affidavit dated 11/3/2017 sworn by L. Bhoben Singh and back dated Affidavit dated 11/3/2017 sworn by H. Jamson Singh were enclosed.

It is submitted that the accounts of the candidates had already closed on 13/4/2017 and even in reconciliation meeting, the said back dated Affidavits were not produced by the Respondent No. 1. If the said affidavits were produced, the Expenditure Observer should reviewed his remarks but these affidavits are fabricated and false so as to cure his commission of corrupt practice. Moreover, the expenditure observer did not cancel or review his observation given in the Summery Report of District Election Officer/DC, Bishnupur namely Shri Harekrishna till date.

It is submitted that the said Affidavits sworn by Asem Priyokumar Singh, L. Bhoben Singh and H. Jamson Singh are all back dated and fabricated Affidavits. In this regard, the answering Election Petitioner obtained the information from the Law Department, Govt. of Manipur that the deponent namely Asem Priyokumar Singh of the Affidavit dated 10/3/2017 was never sworn before the Oath Commissioner namely P. Ibomcha Singh, the deponent namely Laishram Bhoben Singh of the Affidavit dated 11/3/2017 was never sworn before the Oath Commissioner namely K. Surjit Singh on 11/3/2017, the deponent namely H. Jamson Singh of the Affidavit dated 11/3/2017 was never sworn before the Oath Commissioner namely K. Surjit Singh on 11 /3/2017.

The Under Secretary (Law), Government of Manipur has also furnished the information sought by the Ld. Counsel of the Petitioner by issuing a Letter being No. 18/5/2018-Law (RTI) dated 16/04/2018 in reply to the application dated 10/04/2018 under Sec 6 of the Right to Information Act, 2005 of his counsel.

The Under Secretary (Law), Government of Manipur has furnished an Order being No. 4/15/2015-Judl./L dated 17th August, 2015 regarding the empowering the advocate namely K. Surjit Singh to administer oath & affirmation for the purpose of affidavit and in the said Order dated 17/08/2015, it is provided in Para No. 7 as:

"The Oath Commissioners shall maintain a Register Book of affidavit and shall in the first week of January and July every year, submit in person to this Department, Govt. of Manipur, a half yearly report of the acts done by him/her during the preceding six months".

Accordingly, in compliance of the Order dated 17/08/2015, the said Oath Commissioner namely K. Surjit Singh submitted the particulars of the deponents who had taken oath from him for the months of January to June, 2017 and in his reports the name of the Deponent namely H. Jamson Singh had not sworn the said Affidavit dated 11/3/2017. In the same manner, the deponents namely Asem Priyokumar Singh and Laishram Bhoben Singh had never sworn the Affidavit."

[7] In view of the above, the application is allowed in part with the direction that the replication filed by the applicant/ petitioner shall be taken on record except certain averments made in para 8, as reproduced hereinabove, of the replication.