Pukhrem Sharatchandra Singh vs Mairembam Prithviraj

N. Kotiswar Singh, J.—Heard Mr. N. Kumarjit, learned senior counsel for the applicant/election petitioner and Mr. I. Ishwarlal, learned counsel for the respondent/returned candidate.

The present Misc. application has been filed by the election petitioner for disposal of the election petition under Order XV Rule 3(1) of the Code of Civil Procedure read with Section 87(1) of the Representation of the People Act, 1951 for granting the reliefs under (a) and (b) as prayed in the election petition by deciding the issues framed by this Court without adducing any evidence or examination of witnesses but on the basis of the pleadings.

The applicant had filed the Election Petition No. 1 of 2012 seeking for a declaration of the election of the respondent as void under Section 100(1)(d)(i) of the RP Act, 1951 which provides for declaring an election to be void if the result of the election, in so far as it concerns the returning candidate, has been materially affected by the improper acceptance of a nomination. Mr. Kumarjit, learned senior counsel for the petitioner has submitted that Section 33 of the RP Act, 1951 deals with the procedure for presentation of the nomination paper as well as requirements of a valid nomination. Section 33(A) of the Act further postulates for providing additional information mentioned therein and Rule 4A of the Conduct of Election Rules, 1961 provides that a candidate at the time of filing nomination of paper has to enclose an affidavit sworn by the candidate in Form No. 26 provided. Section 36(2) of the Act provides that the Returning Officer, after such summary enquiry, on objection or his own motion, may reject any nomination on the three grounds mentioned therein.

It is the case of the applicant that the respondent Returned candidate, while filing the affidavit along with the nomination paper had mentioned in the affidavit that his educational qualification is "MBA, 2004, Mysore University" which is false as he does not possess the said educational qualification. Accordingly, it has been contended that since the respondent had filed a false affidavit contrary to Rule 4A of Conduct of Election Rules, 1961, it ought to have been rejected by the Returning Officer under Section 36(2) of the RP Act and since the nomination was importantly accepted, the election of the respondent is liable to be declared void under Section 100(1)(d)(i) of the RP Act.

In this election petition, the following 6(six) issues were framed by this Court on 13.10.2015.

"i) Whether the Returning Officer of 27-Moirang AC has illegally accepted the nomination paper of the respondent or not?

ii) Whether the election of the respondent had been materially affected by the acceptance of the nomination paper of the respondent by the R.O. of 27-Moirang A/C or not?

iii) Whether the respondent had filed false affidavit in respect of the highest education qualification in the form, in which the respondent had mentioned "MBA Mysore University" or whether it was merely a clerical error?

iv) Whether the petition lacks material facts or not?

v) Whether the election petition is liable to be dismissed for not putting the words "attested to be true copy of the petition" on each and every page of the petition by the petitioner himself or not; or on any of the defects raised by the respondent in his written statement?

vi) Whether the petitioner is entitled to the relief claimed in the writ petition?"

Mr. N. Kumarjit, learned senior counsel for the petitioner submits that issues No. (i), (ii) and (iii) can be decided jointly. It has been submitted by the petitioner that in the election petition the respondent had given false information regarding his education qualifications by mentioning "MBA, 2004, Mysore" in the affidavit filed at the time of delivery of nomination papers as required under Rule 4A of the Conduct of Election Rules, 1961. According to the learned senior counsel, the respondent has admitted in para No. 5.5 of his written statement that he does not possess the aforesaid educational qualification. Accordingly, the nomination paper of the respondent was liable to be rejected under Section 36(2) of the RP Act. However, in spite of the said defect, the nomination paper of the respondent which ought to have been rejected was improperly accepted by the Returning Officer. Accordingly, by invoking Section 100(1)(d)(i) of the RP Act, the election of the respondent is liable to be declared void due to improper acceptance of his nomination paper by the Returning Officer. In this connection, the learned senior counsel has relied on the decision of the Hon''ble Supreme Court passed in the cases of Kisan Shankar Kathore Vs. Arun Dattatray Sawant and Others, and Resurgence India Vs. Election Commission of India and Another, contending that it had been held in these cases that furnishing incorrect statement in the affidavit filed along with the nomination paper in terms of provisions under Sections 33 and 33(A) of the RP Act, 1951 read with Article 173 of the Constitution of India entails rejection of the nomination under Section 36(2) of the RP Act, 1951 and hence election of such candidate is liable to be declared void.

As regards the other remaining issue as to whether the petition lacks material facts or not, the learned senior counsel submits that it can be decided without adducing evidence. Similarly, the issue whether election petition is liable to be dismissed for not putting the words "attested to be true copy of the petition" on each and every page of the petition by the petitioner himself or not or on any of the defects raised by the respondent in his written statements, can be also decided without adducing evidence.

As regards Issue No. (v) it has been contended by Mr. N. Kumarjit, learned senior counsel that the election petition is not liable to be dismissed merely on the failure to put the words "attested to be true copy of the petition" on each and every page of the petition by the petitioner by relying on the decision of the Hon''ble Supreme Court in the case of M. Kamalam Vs. Dr. V.A. Syed Mohammed, .

It has been also contended by Mr. Kumarjit, learned senior counsel for the election petitioner that the election petition does not suffer from any defect as alleged by the respondents and accordingly, all the issues framed by this Court can be decided without adducing any evidence or producing any witness and hence the election petition be also decided on the basis of the existing pleadings.

The contentions of the applicant has, however, been vigorously opposed by the respondent. Before this Court proceeds to deal with the rival contentions raised, it may be apposite to refer to certain facts which may have some relevance to the decision in this application.

During the pendency of the main election petition, various applications were filed by the respective parties which were being considered. However, during the pendency of these applications, at the instance of the election petitioner/applicant, the Hon''ble Supreme Court of India in Civil Appeal No. 8063 of 2015 passed an order on 1.10.2015 directing expeditious disposal of this election petition by the end of February, 2016. The relevant portion of the said order reads as follows :

"20. We are absolutely conscious that in this case, the election petitioner has also filed an application for early determination of the preliminary objection. The respondent, the elected candidate, has filed series of applications. We are of the convinced opinion that the election petition pending before the High Court has to be decided with extreme alertness and in quite promptitude. As the court has not framed issues, it shall proceed to frame issues. Thereafter, the evidence shall commence and the court shall, regard being had to the statutory command and the norms in a democratic polity, dispose of the election petition by end of February, 2016. All the miscellaneous applications shall be decided at the time of final hearing so that the procrastination is totally ostracised.

With the aforesaid observations and directions, the appeal stands disposed of. There shall be no order as to costs."

(emphasis added)

After the aforesaid order was passed by the Hon''ble Supreme Court, the matter was put up before this Court on 9.10.2015 on which date the applicant submitted the suggested issues and the counsel for the respondent was directed to submit the same for framing issues on 13.10.2015. On 13.10.2015 after hearing the parties the issues were framed. Thereafter, the case was fixed on 16.10.2015 for taking steps by the parties.

On 16.10.2015 counsel for the applicant submitted the list of witnesses and counsel for the respondents was directed to submit the list of witnesses on the next date fixed. Because of the intervening long break on account of Puja Vacation, the matter was directed to be listed on 3.11.2015 for examination of witnesses on behalf of the election petitioner. When the matter was taken up on 3.11.2015 for examination of witnesses on behalf of the petitioner, neither any witness was produced nor affidavit filed by any of the witnesses of the petitioner. On the other hand, it was submitted on behalf of the election petitioner that the petitioner had filed this application under Order XV Rule 3(1) of the CPC read with Section 87 of the RP Act, 1951 for disposal of this election petition and learned senior counsel for the election petitioner submitted that this application be taken up first before proceeding further in the matter. Accordingly, the matter was adjourned to 5.11.2015 for further consideration.

On 5.11.2015 when the matter was taken up, it was pointed out to the learned senior counsel for the petitioner by this Court about the direction of the Hon''ble Supreme Court for speedy disposal of the matter as mentioned above, more particularly, by referring to the observations of the Hon''ble Supreme Court that the Court should proceed to frame issues and thereafter the evidence shall commence and all the miscellaneous applications shall be decided at the time of final hearing. In other words, the Hon''ble Supreme Court directed that the election petition should be proceeded by framing of issues and recording of evidence and all the pending miscellaneous applications are to be decided at the time of final hearing. However, Mr. N. Kumarjit, learned senior counsel for the petitioner submitted that hearing on that day may be treated to be final as far as the election petitioner is concerned and that he may be allowed to proceed with his submission. Accordingly, on his insistence and prayer, Mr. Kumarjit, learned senior counsel for the election petitioner was allowed to make his submissions. However, he could not complete his submission on that day and the matter was directed to be listed again on 17.11.2015 after the reopening of the Court on account of Diwali Holidays with the proposal that the matter be taken up for hearing on every hearing days i.e. on Tuesdays and Thursdays, so that the election petition could be concluded within the time frame stipulated by the Hon''ble Supreme Court. The matter could not be taken up on 17.11.2015 on account of Silver Jubilee Celebration of the High Court Bar Association of Manipur and it could not be taken up on 19.11.2015 also on account of a Bandh called by certain local organisation. The matter was thereafter listed on 24.11.2015. However, Mr. Kumarjit, learned senior counsel for the petitioner could not conclude his submission and the case was adjourned to 26.11.2015. On 26.11.2015 it was submitted by the learned senior counsel that on account of "Law Day" organised by the High Court Bar Association on that day it may not be possible for him to complete his submission and prayed that he be allowed to complete his submission on 1.12.2015. Accordingly, he completed his submissions on 1.12.2015 and matter was directed to be listed on 3.12.2015 for submission on behalf of the respondent.

Mr. Ishwarlal, learned counsel for the respondent was allowed to make his submission and reply on 3.12.2015 which he concluded on 8.12.2015.

Responding to the contentions of the election petitioner, Mr. H. Ishwarlal, learned counsel appearing for the respondent has submitted that there was no admission by the respondent as regards the allegation of the election petitioner that the respondent had filed false affidavit by giving a wrong information about his educational qualification. Referring to para No. 5.4, 5.5 of the written statement filed by the respondent, it has been contended by the counsel for the respondent that nowhere respondent had specifically admitted to the allegation of the petitioner. Mr. Ishwarlal submits that on the other hand, it had been clarified that the furnishing of wrong information about the educational qualification was merely a clerical error and it was due to wrong depiction of the thought process and that this clerical error was explained to the Returning Officer who decided not to reject the nomination paper on the ground that this defect was not of substantial nature. He contends that any admission in a suit must be clear, categorical and unambiguous otherwise, it cannot be said to be admission, and has relied on a number of decisions viz., Jeevan Diesels and Electricals Ltd. Vs. Jasbir Singh Chadha (Huf) and Another, ; All Assam Lawyer''s Association v. Ashok Kumar Bora, Laksheswar Hazarika & ors., 1995 (1) GLT 276 ; Joshna Gouda Vs. Brundaban Gouda and Another, , etc.

He further contends that if it is a case of admission by the respondent of the allegations of the petitioner, the present application of the election petitioner ought to be filed under Order XII Rule 6 CPC. However, since the present application has been filed under Order XV Rule 3(1) of the CPC, the present application is not maintainable.

Mr. Ishwarlal contends that whether it was a clerical error or not as pleaded by the respondent requires adducing evidence and it cannot be decided merely on the basis of the pleadings. Mr. Ishwarlal, learned counsel has also submitted that one of the grounds for filing the election petition is the allegation of corrupt practice alleged to have been indulged by the respondent. However, no material facts have been pleaded. He submits that issue No. (iv) clearly refers to as to whether petition lacks material facts or not and since the election petition does not disclose material facts relating to corrupt practice, the absence of this in the election petition is fatal and the election petition is liable to be dismissed on this score and has relied on the decisions of the Supreme Court in Markio Tado Vs. Takam Sorang and Others, and Anil Vasudev Salgaonkar Vs. Naresh Kushali Shigaonkar, .

Mr. Ishwarlal, learned counsel for the respondent also had contended that there is no allegation in the election petition that the election of the respondent had been materially affected by the improper acceptance of the nomination paper of the respondent and hence in absence of a specific pleading to that effect, no case is made out for invoking the Section 100(1)(d)(i) of the RP Act. He further submits that nomination cannot be rejected on a defect which is of not a substantial character and in this regard has relied on the decision of the Supreme Court in Shambhu Prasad Sharma Vs. Shri Charandas Mahant and Others, .

Mr. Ishwarlal has also submitted that the behaviour, character and demeanour of the witnesses are to be taken into account and are of prime consideration, for appreciating the evidence, which is not possible if no witnesses is examined. And as such, non production of witness would be prejudicial to the respondent.

From the examination of the issues mentioned above, it is seen that the issue No. 5(v) deals with the issue as to whether the election petition is liable to be dismissed or not for not putting the words "attested to be true copy of the petition on each and every page of the petition by the petition himself" or on any of the defects raised by the respondents in this written statements. Therefore, if the said issue is decided against the petitioner and in favour of the respondent the implication is that the election petition is defective. If that is so, the question of granting any relief to the petitioner would not arise till such defect is cured, if curable and if not curable, the petition is liable to be dismissed. Thus, even if the issues No. (i), (ii) and (iii) are decided in favour of the petitioner, which according to the petitioner can be on the basis of the pleadings without any examination of witnesses, if the petition is found to be defective in terms of the issue No. (v) ultimately, no relief can be granted to the petitioner. Issues No. (i), (ii) and (iii) could be decided in favour of the petitioner and can lead to grant of relief claimed by the petitioner only in the event of the petition being found to be proper and not defective. As such, unless the aforesaid issue No. (v) is decided in favour of the petitioner, it cannot be said that the relief sought for by the petitioner can be granted merely by deciding the said three issues No. (i), (ii) and (iii) in favour of the petitioner. This Court is of the view that the aforesaid issue No. (v) can be decided effectively after adducing of evidence as it is a mixed question of fact and law.

As regards the issue as to whether the respondent filed a false affidavit because of which the Returning Officer had illegally accepted his nomination which relates to issue No. (i), (ii) and (iii), Mr. Ishwarlal, learned counsel for the respondent denies that he filed a false affidavit and contends that it was merely a clerical error and as such, the acceptance by the Returning Officer of the nomination paper on the matter being explained by the returned candidate cannot be said to be improper. Mr. Ishwarlal has submitted that this will come out very clearly from the mouth of the witnesses. Therefore, unless witnesses are examined there cannot be proper adjudication of the issues framed. This contention of the respondent cannot be brushed aside as without substance.

As regards the Issue No. (ii), this court is of the view that, whether the election of the respondent has been materially affected by the acceptance of the nomination paper of the respondent by the Returning Officer or not, may require adducing of evidence to show that the action of the Returning Officer in accepting the nomination paper did not materially affect the election of the respondent, even if Issue No. (i) is decided in favour of the petitioner.

This Court is of the opinion that even if the Issue No. (i) and (iii) can be decided on the basis of pleading as contended by the petitioner, which is seriously objected by the respondent, the decision on the Issue No. (ii) may require adducing of evidence.

This Court is of the view that the allegations made in the election petition have not been clearly and unambiguously admitted by the respondent and the allegations have been vehemently denied by the respondent. As such this Court is of the opinion that it would be desirable that these issues are decided after adducing of evidence/examination of witnesses.

In any event, the Hon''ble Supreme Court in its order dated 01.10.2015 had clearly directed for framing of issues and adducing evidences.

On overall consideration of the materials on record and after the hearing of the parties, this Court considers that it would be in the interest of justice that parties be allowed to lead evidence/adduce evidence by examining witnesses for just determination of the issues involved.

This Court has also noted that the present application was filed by the petitioner on the same day the list of witnesses was filed by the petitioner. However, the applicant petitioner has not yet withdrawn the list of witnesses.

It is to be also mentioned that after the conclusion of the submissions, it has come to the notice of this Court that the election petitioner had earlier filed the Misc. Case being MC (EL.P.) No. 7 of 2014 in which the election petitioner had made a similar prayer for deciding the election petition as provided under Order XV Rule 1 of the CPC read with Section 87 of the RP Act, 1951 and grant the reliefs No. (a) and (b) as prayed in the election petition. In the said Misc. application, it has been also stated by the applicant that the election petition under Section 100(1)(d)(i) provides for declaration of an election of the Returned candidate to be void if the result of the election, in so far as it concerns the Returned candidate, has been materially affected by improper acceptance of nomination. In the said application also, the petitioner had referred to requirement of submission of valid nomination under Section 33 and 33(A) of the RP Act, 1951. The election petitioner had also taken a similar plea contending that the petitioner had specifically challenged the election of the respondent on account of improper acceptance of nomination paper as one of the main grounds. It has been stated in the said application that in para 4.4 of the Election Petition, it has been pleaded that the respondent had stated his educational qualification as "MBA, 2004 Mysore University" in the affidavit filed along with his nomination paper which is false. According to the applicant since the said allegations had not been denied but rather the respondent had admitted that he does not possess the said MBA degree from Mysore, relying on the decisions of the Hon''ble Supreme Court in Kisan Shankar Kothore (supra) and Resurgence India (supra) contended that furnishing of incorrect statement in the affidavit filed along with the nomination paper deserves to be rejected under Section 36(2) of the RP Act and election of such candidate is void. It was further pleaded that the issue whether the nomination paper filed by the respondent is liable to be rejected or not, as per the pleadings of the parties, is a legal issue and the same can be adjudicated without adducing any evidence or examining any witness but based on the pleadings of the parties. Accordingly, the election petitioner filed the said Misc. application being MC (El.P.) No. 7 of 2014 on 20.07.2014, which is pending consideration by this Court.

This Court has noted that apart from factum that the present application has been filed after the framing of issues, both the applications are virtually the same for all purposes and intent, seeking similar relief by invoking same provisions of law. The aforesaid Misc. application MC (EP) No. 7 of 2014 was not disposed of by this Court and it is one of the applications along with others which were pending for decisions by this Court when the aforesaid direction was issued by the Hon''ble Supreme Court on 1.10.2015 because of which the said applications have not been disposed of. The only additional point raised in this present application is that all the issues framed by this Court can be decided on the basis of the pleadings without adducing evidence.

This Court had considered the elaborate submissions made by the respective parties. If the present application is to be allowed as pressed by the election petitioner, this may not be in conformity with the direction of the Hon''ble Supreme Court. As mentioned above, the Hon''ble Supreme Court has specifically directed this Court to frame issues and thereafter to commence recording of evidences with further specific direction that all the miscellaneous applications shall be decided at the time of final hearing. Since the present application is virtually similar to the pending MC (E.P.) No. 7 of 2014, deciding this application may not be in consonance with the order of the Hon''ble Supreme Court. However, in view of the fact that elaborate and detail submissions and arguments have been already advanced by the learned senior counsel for the petitioner as well as the respondent and as also pressed by the learned senior counsel for the petitioner, this Court felt that keeping the decision on this application filed by the election petitioner in abeyance till final hearing may not be desirable as the main issue raised is whether there is any need for adducing evidence or not at this stage. It may be also noted that allowing this application will also virtually decide the fate of the election petition on merit, which this Court is not inclined to do now for the reasons discussed above.

This Court has noted the detailed and elaborate arguments advanced by the learned senior counsel for the petitioner in support of his contentions that the respondent had filed false affidavit in respect of his educational qualification which had been admitted by the respondent and that the returning officer had illegally accepted the nomination paper of the respondent and that the election of the respondent had been materially affected by the improper acceptance of the nomination paper and also the equally elaborate reply by the counsel for the respondent, with the aid of a number of decisions of the Apex Court. This Court, however, refrains from making any observation on these detailed arguments advanced by the learned senior counsel for the petitioner as well as the respondent on the various issues framed by this Court, as this Court proposes to decide these issues after adducing evidence and examination of witnesses by the parties.

In the result, for the reasons discussed above, this Court declines to entertain this Misc. application.

The petitioner is directed to produce and examine his witnesses on the next date, i.e., 15th December, 2015, if so desires and thereupon, on conclusion of examination of the witnesses on behalf of the petitioner, the respondent shall produce his witnesses. While producing witnesses/adducing evidences, the parties are to keep in mind the date line fixed by the Hon''ble Supreme Court, i.e. to conclude the election petition by the end of February, 2016.