Thounaojam Shyamkumar vs Dr. Nimaichand Luwang & Anr

Heard Mr. H.S Paonam, learned senior counsel assisted by Mr. S. Gunabanta for the applicant. Heard also Mr. B.P. Sahu, learned senior

counsel assisted by A. Mohendro for the respondent No.1.

The election petition filed by the Election Petitioner/Respondent No.1 herein has been sought to be unsuited by the applicant, respondent No.1

in the election petition, on the ground that the same is not maintainable.

Accordingly, before we proceed with the election petition, this Court will deal with the present misc-case which has been filed for rejecting the

election petition under Order VIII Rule 11 read with Section 151 of Cr.P.C on the ground of non disclosure of cause of action and also for non

compliance of Section 81 and other relevant provisions and the Representation of the People Act, 1951.

It has been contended by the applicant (respondent no. 1 in the election petition) that the election petition has not been presented in the manner

as provided under Section 81 of the Representation of the People Act 1951 as the election petitioner has not pleaded any of the grounds as

contemplated under Section 100 of the RP act for declaring the election of the applicant as void.

It has been also contended that there is not even a whisper of any averment or pleading which would attract the provisions of section 100.

Accordingly it has been submitted that the election petitioner has failed to disclose any cause of action and as such the petition is liable to be

rejected at the threshold.

It has been also pleaded that the alleged requirement of declaring the criminal antecedent of the applicant (respondent No.1 in the election

petition) as contemplated under Section 33-A of the RP Act has never been pleaded as one of the grounds for challenging the election of the

applicant and such wild allegation of requirement of disclosure of criminal antecedent is not contemplated under the Act as well as the Rules framed

there under.

It has been contended that in the letter dated 24.8.2012 issued by the official of the Election Commission of India, the format of the affidavit is

given. In paragraph no. 5 of the format, there is a requirement for providing information as to whether a candidate is/is not accused of any offence

(s) punishable with imprisonment of two years or more in a pending case(s) in which a charge(s) has/have been framed by the court(s) of

competent jurisdiction. If any such candidate is accused of any such offence, he has to furnish information as mentioned in the format.

It has been submitted that since there was no criminal case pending against the applicant at the time of filing the nomination, as he had been

already acquitted of the charges which was framed earlier, the question of furnishing any such information did not arise. According to the applicant,

the need to furnish information would arise if there is any pending case at the time of filing nomination.

It has been submitted by the applicant that as per requirement under Section 33-B of the Representation of People Act, 1951, what is required

of a candidate is to furnish such information only as required under the Act and Rules and nothing else. In other words, a candidate is not required

to furnish any other information unless required under the Rules. The Act does not contemplate disclosure of information which is otherwise not

specifically required to be disclosed under the Act and rules.

Further, it has been submitted that the relief sought for initiating proceeding under against the applicant/Respondent No. 1 under section 125A

and 127 of the RP Act, 1951 is wholly misconceived and as such the election petition is not maintainable.

It has been stated that the applicant had defeated the election petitioner by a huge margin of 8161 votes, as the applicant got 18948 votes

whereas the election petitioner got 10787 and as such this election petition has been filed out of sheer desperation and the present petition filed is

vexatious without disclosing any cause of action and hence, is liable to be rejected with heavy cost.

The election petitioner, respondent No. 1 in this application has however vehemently contested this application arguing that even though the

Applicant/Respondent No.1 in the election petition may have been acquitted by the trial court, there is an appeal pending against him and as such it

cannot be said that the applicant has been acquitted in the criminal case. It has been submitted on behalf of the election petitioner that appeal is the

continuation of a suit. Similarly, the criminal appeal pending before the Delhi High Court is continuation of the criminal trial in which the applicant

was acquitted. Therefore, it cannot be said that the applicant had been finally acquitted of the charge against him by the trial Court. So long as the

appeal is pending, it cannot be said that the criminal trial has come to a final conclusion to enable the applicant to claim that no criminal case is

pending against him.

Accordingly, it has been submitted by the learned senior counsel for the election petitioner, respondent No.1 herein that since the criminal

appeal was pending against the applicant at the time of filing nomination, he ought to have disclosed the same fact in his affidavit filed before the

returning officer and the returning officer ought to have rejected such an affidavit which did not disclose the material fact. It has been submitted that

acceptance of such improper affidavit was wrong on the part of the returning officer and the nomination of the respondent No. 1 in the election

petition ought to have been rejected. It has been submitted that wrongful acceptance of the nomination of the respondent No. 1 has affected the

result of the election. He submits that the election petitioner has specifically pleaded in para No. 5 of the election petition that the cause of action

for filing the present election petition arose on 11-03-2017 when the result of the election was declared.

It has been submitted that the election petitioner has specifically pleaded in para No. 4(iv) that at the time of scrutiny on the date fixed, the

petitioner had objected to nomination of the respondent No. 1 in the election petition as provided under Section 36 (2) of the Representation of

the People Act, 1951 on the ground that the respondent failed to file a proper affidavit prescribed under Article 173 of the Constitution of India

and that the affidavit so filed is a false affidavit as he had falsely stated in clause no. 5 of the affidavit that no offence punishable with imprisonment

of 2 years or more was pending in which charge sheet has been framed by the Court, by showing it to be not applicable in the relevant column,

meaning thereby that no case was pending.

Therefore, it has been submitted that the election petitioner had clearly mentioned these facts which constitute the cause of action and

accordingly it has been submitted that the misc application filed by the returned candidate is liable to be dismissed.

In support of his contentions, the applicant has relied on the following decision of the Hon''ble Supreme Court:

Shambhu Prasad Sharma Vs Charandas Mahant & others, (2012) 11 SCC 390.

Cheran Lal Sahu vs Nandakishore Bhatt and others, (1973) 2 SCC 530, in which the Hon''ble Supreme Court held that the right to challenge

an election is a right provided under Article 319(b) of the Constitution of India which provides that no election shall be called in question except by

an election petition presented in such a manner provided by the law made by the appropriate Legislature. Thus, it is merely a statutory right and as

such, the terms of the statute had to be complied with at the time of filing an election petition.

Similarly, it was held in Jyoti Basu and other vs. Debi Ghosal, (1982) 1 SCC 691 that the entire election process, commencing from the

issuance of notification calling upon the constituency to elect a member right upto the final resolution of the dispute, if any, concerning the election is

regulated by the Representation of the People Act 1951 and as such the election petition has to conform to the provisions of the Act.

Further, relying on the decision in Samant N. Bal Krishna and anr. Vs. George Fernandez, (1969) 3 SCC 238, it has been submitted that

material facts required for the cause of action of the election petition have to be clearly pleaded as provided under Section 83 of the

Representation of People Act, 1951, in absence of which the election petition may be liable to be dismissed. In fact an election petition can be

dismissed summarily as held in Azhar Hussain vs. Rajiv Gandhi, 1986 (Suppl) SCC 315.

The learned counsel also relied on the following decisions in Anil Vasudev Salgaonkar vs. Naresh Kushali Shigaonkar, (2009) 9 SCC 310, Hari

Ram vs. Hira Singh & ors., (1984) 2 SCC 36, Ram Sukh vs. Dinesh Aggarwal, (2009) 10 SCC 541, Markio Tado vs. Takam Sorang & ors.,

(2012) 3 SCC 236, Union of India vs. Association for Democratic Reforms and another, AIR 2002 SC 2112, People''s Union for Civil Liberties

(PUCL) vs. Union of India, (2003) 4 SCC 399.

Mr. A.Mahendra, learned Counsel for the election petitioner, on the other hand, submits that appeal is a continuation of the criminal trial which

has been concluded. Merely, because the trial had been concluded by acquitting the accused, it does not mean that the criminal trial has concluded

if an appeal has been preferred against the acquittal. According to the learned counsel, the trial continues so long as the appeal is pending. In this

connection , he has referred to the decision in Jagdish Singh Vs. Madhuri Devi, (2008) 10 SCC 497, in which the Supreme Court held that an

appeal is an continuation of a suit as an appeal is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the

entire evidence, oral as well as documentary and can come to its own conclusion.

Mr. Mahendra relying on the decision in Pukhrem Saratchandra Singh Vs. M.Prithviraj, (2106) 7 Supreme Today 783 submits that once the

affidavit is improperly accepted it materially affects the result of the election and as such the Returning Officer ought to have rejected the

nomination of the Respondent no.1 at the threshold.

Further relying on the decision in Kishan Shankar Kathore Vs. Arun Dattatray Sawant and others, (2014) 14 SCC 162 as well as in Resurgence

India Vs. Election Commission of India and another, (2104) 14 SCC 189 Mr. Mahendra submits that non disclosure of specified information

amounts to material lapse and as such the election is liable to be set aside.

He further submits that the expression ""that the result of the election, in so far as it concerned a returned candidate, has been materially affected"" as

found in Section 100(1)(d) of the RP Act, 1951 need not be specifically stated in the election petition, so long as the necessary pleadings are

stated in the election petition.

Further, relying on the decision in Ashraf Kokkar Vs. K.V. Abdul Khader and others, (2015)1 SCC 129, Mr. Mahendra submits that an election

petition is not liable to be dismissed in limine so long as the claim discloses some cause of action or raises some questions fit to be decided by the

Court. He submits that the election petitioner has raised an important issue about the validity of the acceptance of the false affidavit filed by the

Respondent no.1 which requires to be decided by the Court.

Relying on the decision in Nagabhushanammal (dead) by legal representatives vs. C. Chandikeswaralingam, (2016) 4 SCC 434, as well as in

Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Others, (2004) 3 SCC 277, it has been submitted that cause of action also means that

particular act on the part of the defendant which gives the plaintiff his cause of complaint.

Thus, the issue to be decided in this Misc. Application is whether the Election Petitioner has failed to disclose any cause of action, which would

render the election petition non maintainable for not conforming with the provisions of Section 83 and Section 110 of the RP Act, 1951.

The allegation of the Applicant (Respondent no.1 in the election petition) is that the election petition has not disclosed any cause of action or it

lacks material facts on which the petitioner relies, as required under Section 83 read with Section 100 of the RP Act, 1951 and hence, the election

petition is not maintainable.

As to what constitutes a ""cause of action"" is no more res integra. The Learned Counsel for the Election Petitioner has referred to a number of

decisions relating to ""cause of action"". This Court does not wish to add to the number of judicial decisions already cited. Suffice to say to that

cause of action"" means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of

the court.

In the present election petition, it has to be seen as to whether the election petition discloses any such cause of action.

Perusal of the election petition would reveal that the election petitioner had specifically pleaded that the respondent no.1 had filed a false

affidavit about the pendency of the criminal appeal against the respondent no.1 in the Delhi High Court as he did not mention anything of the

pendency of the said criminal appeal before the Delhi High Court. It has been further stated in the election petition that though the petitioner had

raised the objection before the Returning Officer for furnishing wrong information in the affidavit by the Respondent No.1 and for rejecting the

same on the day of scrutiny, the same was accepted by the Returning Officer [paragraphs no. 4(iv) to (vii) of the election petition]. Accordingly, it

was contended that wrongful acceptance of nomination of the Respondent no.1 amounts to violation of provisions of Section 33 of the RP Act,

1951 and as such the cause of action arose when the result was declared on 11.3.2017 [paragraphs no. 4(xii) to (xii), 5 of the election petition].

As to whether, the allegations of the election petitioner are correct or not has to be proved by the petitioner and further, as to whether, filing of

the affidavit by the returned candidate was false or not and whether the alleged false affidavit would amount to violation of the provisions of Section

33 of the RP Act, 1951 so as to render the election of the Respondent no.1 void, are to be considered by this Court in course of the election trial.

The Respondent no.1 by filing this misc. application has seriously contended that mere pendency of the criminal appeal does not mean that criminal

trial is still pending against him. In fact, the Respondent no.1 had been acquitted by the trail Court and it cannot be said that on the day of filing the

nomination paper he was accused of any offence or that any charge sheet was pending against him. He had been acquitted by the Trial Court and

accordingly, has to be held to be innocent. This is also an issue to be considered by this Court.

The issue, as to whether non disclosure of any pendency of any criminal appeal would amount to giving false affidavit within the meaning of

Section 33 of the RP Act or any rules framed thereunder, has to be decided by the Court.

The election petitioner has sought for declaration that the election of the Respondent no.1 to be the returned candidate as null and void. The basis

of the said claim is the alleged violation of Section 33 of the RP Act, 1951. Whether, the claim of the election petitioner is to be allowed or not is

to be examined by the Court. However, it cannot be said at this stage that the election petition does not disclose any material fact on which the

petitioner relies or that the election petition does not disclose any cause of action.

This Court is not considering at this stage the issues whether the Respondent no.1 filed any false affidavit at the time of filing his nomination and

also whether the Returning Officer had correctly or wrongly accepted the nomination of the Respondent no. 1 and whether there was violation of

Section 33 of the RP Act or not, as such decisions would not be within the scope of this misc. application.

Accordingly, for the reasons discussed above, the present misc. application is rejected as devoid of merit.