Sanasam Bira Singh vs Ningthoujam Mangi And Others

Kh. Nobin Singh, J

[1] Heard Shri Serto T. Kom, learned Advocate appearing for the applicant/ respondent No.1 and Shri A. Mohendro, learned Advocate appearing for the respondent No.1/ petitioner.

[2] This is an application filed by the applicant/ respondent No.1 praying for framing preliminary issues which are as under:

(i) Whether the violation of the Instruction of the Election Commission of India bearing No. 76/ Instruction/ EEPS/ 2015/ Vol-II dated 9th June 2015 at Annexure-A/1 of the Election Petition, addressed to the Chief Electoral Officers of all States and UT's more specifically in this case the instruction that candidates shall not receive any donation or loan in cash in excess of Rs. 20,000/- (Twenty Thousand) from a single person or entity during the Election process and all donations/ Loans in excess of Rs. 20,000/- shall be received by the Candidate by A/c Payee Cheque/ Draft or by account Transfer, amounts to corrupt practice within the meaning of Section 123(6) of the RP Act, 1951?

(ii) Whether there is any requirement to mention at para 8(i) and para 11(9) in the affidavit (Form-26) i.e. to be filed along with the nomination paper, as to whether the loan was utilised for the purpose for which loan was taken or obtained from banks?

[3] According to the applicant/ respondent No.1, if the above proposed preliminary issues are decided in the negative, this court need not proceed with the trial of the election petition. If the violation of the instruction of the Election Commission of India dated 09-06-2015 does not amount to corrupt practice within the meaning of Section 123 of the Representation of Peoples Act, 1951 and also if there is no necessity of mentioning para 8(i) and para 11(9) in the affidavit, there will be no requirement for trial at all. In order to save the precious time of this court, it is necessary to frame the proposed preliminary issues for the end of justice.

[4] No objection on behalf of the respondent No.1/ petitioner has been filed in the matter. According to the counsel appearing for the respondent No.1/ petitioner, no objection is required to be filed for the reason that this Court has rejected the grounds advanced by the applicant/ respondent No.1 as regards the maintainability of the election petition and that the consideration of such preliminary issues by this Court before the trial takes place, will defeat the very purpose of filing the election petition as provided under the provisions of the Representation of Peoples Act, 1951.

[5] The allegations made in the election petition are that from the election expenditure account submitted by the applicant/ 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/-from Shri A. Priyokumar by cash on 10.03.2017 and another sum of Rs.63,500/-from Shri L. Bhoben on 11.03.2017 by cash as donation and a sum of Rs.961as loan. The factum of having received a total sum of Rs.3,64,461/- 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/- and Rs. 63,500/- by cash on 10.03.2017 and 11.03.2017 by applicant/ respondent No.1 as reflected in his abstract statement of election expenses dated 10.04.2017, amounts to commission of corrupt practice within the meaning of Section 123(6) of the Act, 1951. In the written statement, it has been stated by the applicant/ respondent No.1 that the receipt of donation of Rs.3 lakhs and Rs.63,500/-and a loan amount of Rs. 961/- does not violate the direction of the Election Commission of India in view of the fact that the alleged donation amounts are not from a single person. As regard the donation amount of 3 lakhs, it was donated by 20 well wishers of the applicant/ the respondent No.1-each donating Rs.15,000/- and similarly, the donation amount of Rs.63,500/- was donated by 5 well wishers of the applicant/ respondent No.1 whose donation amount does not cross the ceiling limit of Rs.20,000/-as per the instructions of the Election Commission of India. In this regard, the additional election agent of the applicant/ respondent No.1 vide his letter dated 02.04.2017, in response to the notice of the Returning Officer dated 11.04.2017, has 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 has rectified the defect. Since the Election Commission of India has accepted the explanation, there is no question of the instructions of the ECI being violated and that a receipt of such donation does not amount to commission of corrupt practice under Section 123(6) of the Act, 1951. As regards the loan taken by the applicant/ respondent No.1 for a sum of Rs.10 lakhs and another sum of Rs.5 lakhs from SBI, the deductions made out of it by the bank, are reflected in the annexure A/4 and A/5 of the election petition meaning thereby that there has been a total outstanding loan amount of Rs.11,61,145/- which has been clearly mentioned in the affidavit of the applicant/ respondent No.1 and therefore, there is no question of non-disclosure about the said loans and in particular, the outstanding loan amount.

[6] The instant election petition was filed on 25-04-2017 and on 28-04-2017 when it came up for consideration, this Court was pleased to issue notice to the respondents therein. On 16-06-2017, the counsel appearing for the respondent Nos.1 & 3 were granted time till 19-07-2017 for filing their written statement, while the counsel for the petitioner was granted time to find out from the net as to whether the respondent No.2 had been served with the notice or not. Further time was granted to the applicant/ respondent No.1, on three occasions, for filing his written statement which could be filed by him on 20-09-2017 along with an application for condonation of delay being MC(EP) No.21 of 2017. Some time was granted to the counsel appearing for the petitioner to file an objection and thereafter, on 23-02-2018, the said application was allowed subject to payment of Rs.10,000/- as costs. In the meantime, an application being MC(EP) No.25 of 2017 was filed by the petitioner praying for proceeding ex-parte against the respondent No.2 which was allowed by this Court on 23-11-2017.

[7] On 12-04-2018 an application being MC(EP) No.12 of 2018 was filed by the applicant/ respondent No.1 praying for dismissal of the election petition on the inter-alia grounds that the respondent No.1/ petitioner had failed to mention material facts which would constitute the cause of action and the objection thereto, was filed on 04-05-2018. Before the said application could be decided, on 04-05-2018, an application being MC(EP) No.14 of 2018 was filed by the respondent No.1/ petitioner praying for grant of leave to file replication incorporating therein the subsequent events to explain the denial of the applicant/ respondent No.1 in his written statement. An objection thereto was filed on 06-06-2018. The matter was to be adjourned again and again on account of the flood and the bandh called by some organisations, because of which many of the advocates could not attend the Court and ultimately, the application being MC(EP) No.12 of 2018 was heard on 04-12-2018 and the judgment and order thereof was pronounced on 22-01-2019 rejecting it. Thereafter, the matter was to be adjourned for two/ three times, on one reason or the other, as prayed by the counsel appearing for the parties. On 16-04-2019 the application being MC(EP) No.14 was heard and the judgment and order thereof was pronounced on 27-04-2019 granting the permission for filing the replication without the averments made in para 8 thereof and consequently, the petitioner was directed to file a recast replication.

[8] After the application being MC(EP) No.14 of 2018 being disposed of, on 27-04-2019 itself this Court directed that the matter be listed on 07-05-2019 for framing of issues and the counsel appearing for the parties were directed to file their suggested issues. On the next day, i.e., on 08-05-2019, another application being MC(EP) No.4 of 2019 was filed by the applicant/ respondent No.1 for dismissal of the election petition for non-compliance with the provisions of Section 81(1) of the Representation of Peoples Act, 1951. In other words, the allegation was that when the election petition was presented before this Court, the petitioner was not present in person and accordingly, the Registrar (Judicial) was directed to submit a report thereof. Thereafter, time was granted to the parties to file their respective reply and rejoinder, if any. The application being MC(EP) No.4 of 2019 was heard on 02-07-2019 and the judgment and order was pronounced on 05-07-2019 rejecting it. Despite three opportunities being given to the parties for filing their suggested issues, they failed to do so and accordingly, on 23-07-2019 this Court granted last opportunity for filing their suggested issues with a rider that if they failed to do that, the issues would be farmed on the next date without waiting for their suggested issues. On 05-08-2019 both the counsel appearing for the parties did file their suggested issues and accordingly, the matter was directed to be listed on 20-08-2019 for framing the issues. It may be noted that on 05-08-2019, the instant application being MC(EP) No.6 of 2019 was filed by the applicant/ respondent No.1 praying for framing preliminary issues which ought to be decided first and if the preliminary issues are decided in the negative, this Court need not proceed with the trial of the election petition.

[9] From the circumstances as mentioned above, it is seen that two application being MC(EP) No.14 of 2018 and MC(EP) No.4 of 2019 filed by the applicant/ respondent No.1 raising objections as regards the maintainability of the election petition, have been rejected by this Court and accordingly, the issues are to be framed for which they have filed their suggested issues. It may be noted at this juncture that as we all know, the term of the Manipur Legislative Assembly is five years and the last election was held in the month of March, 2017. While deciding the application after application by this Court, two & half years have gone by and if this Court keeps on deciding the applications, there is a likelihood of the term of the assembly expiring before completing the trial and in that event, the election petition will be rendered infructuous. An application is filed by the applicant/ respondent No.1 only after the earlier having been rejected. Had all the applications been filed by him at one time, all of them could have been considered and disposed by a common judgment and order so that the precious time of the Court could have been saved. This shows that the purpose of filing such applications is nothing but to delay the trial and moreover, the prayer in the instant application is to frame preliminary issues so that the same can be considered before the trial takes place. Keeping in mind the time available before this Court and the fact that all objections as regards the maintainability of the election petition have been rejected, the exercise to be undertaken as prayed by applicant/ the respondent No.1 will unnecessarily delay the trial. Therefore, this Court is of the view that the application is devoid of any merit and is accordingly liable to be dismissed. However, the preliminary issues suggested by the respondent No.1 in his application can be considered at the time of finalising the issues to be framed in the near future and in doing that, the applicant/ respondent No.1 shall not be prejudiced at all.

[10] For the reasons stated hereinabove, the application being MC(EP) No.6 of 2019 is dismissed with no order as to costs.