Nimaichand Luwang vs Th. Shyamkumar & Anr
2021 Latest Caselaw 78 Mani

                                                         Item No. 4


MC(EP) No. 15 of 2021

Nimaichand Luwang                               ....Petitioner

         -Versus-

Th. Shyamkumar & Anr                            ....Respondents

BEFORE HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR (Through Video Conferencing)

19.03.2021

Heard Mr. A. Mohendro, learned counsel for the applicant. Also heard Mr. H. S Paonam, learned senior counsel appearing for the respondent No. 1. [2] By this application, the applicant/election petitioner in El. Pet. No. 4 of 2017 is praying for staying the Judgment and Order dated 01-03-2021 passed by this Court in El. Pet. No. 4 of 2017. The grounds taken by the applicant as mentioned at Para Nos. 6 to 10 of the present application are reproduced herein below:

"6. That, the Applicant is preparing to file an Appeal under Section 116-A of the Representation of People Act, 1951 against the said Judgment and Order dated 01/03/2021 of the Hon'ble Court passed in the Election Petition No. 4 of 2017 before the Hon'ble Supreme Court of India as soon as possible after obtaining the Certified Copy of the said Order/Judgment or copy of the Judgment and Order form the official website.

MC(EP) No. 15 of 2021 Page 1

7. That, the Applicant further begs to submit that the Applicant' case has a very good case supported by evidence both oral and documentary and he has strong prima facie case having every chance of winning his case in Appeal. Moreover, the right provided by the Section 116A of the Representation of People Act, 1951 is statutory rights of the Election Petitioner/ Applicant and as such, the Hon'ble Court has ample power to stay the operation of the Judgment and Order dated 01/03/2021 of the Hon'ble Court till the remedies available to the Election Petitioner is exhausted.

8. That, it is submitted that the Secretary, Manipur Legislative Assembly on 28th March, 2020 vide Notification No. 3/6(2)/2017-LA (Legn.), has notified a vacancy in the seat from 7-Andro Assembly Constituency die to the disqualification of Shri. Thounaojam Shyamkumar from Membership of the Manipur Legislative Assembly.

9. That, it is begged that in compliance with the Hon'ble Supreme Court of India in [2010] 14 (ADDL.) SCR 468, Election Commission of India v Telangana Rastra Samithi and Another [CA No. 10244 of 2010], where the Hon'ble Supreme Court of India held that vacancies to Legislature of State, in which Election Petitions has been filed in which apart from challenging the election of the returned candidate, an additional prayer has been made for declaring the petitioner himself or any other candidate as duly elected were pending, cannot be held to have become available for the purposes of being filled up within the time prescribed under Section 151A of the RPA, 1951 Act and in such cases the Election Commission will have to wait for holding elections in such Constituencies until a decision is rendered in regard to the latter part of Section 84 of the 1951 Act during the life of the House, the Election Commission of India has not notified as Bye-election to fill the vacancy on 7-Andro Assembly Constituency till date.

10. That, the Applicant begs to submit that there is an apprehension that once a copy of the Judgment and Order

MC(EP) No. 15 of 2021 Page 2 dated 01/03/2021 of the Hon'ble Court is made available to the Election Commission of India, the Election Commission may initiate the process of bye-poll.

Further, once the Bye-Election process is initiated, there will be no room for interference to the process of the election and in this regard, the Hon'ble Supreme Court of India held in Civil Appellate Jurisdiction Case No. 351 of 1951 on 21st January, 1952 reported in AIR 1952 SC 64/1952 SCR 218 (N.P. Ponnuswami Vs. The Returning Officer, Namakkal Constituency, Namakkal, Salem District and Four Others) that "the word 'election' in Article 329 (b) connotes the entire electoral process commencing with the issue of the notification calling the election and culminating in the declaration of result, and that the electoral process once started could not be interfered with at intermediary stage by Courts."

[3] It is the case of the applicant that he intends to file an appeal against the Judgment and Order dated 01-03-2021 passed by this Court in El. Pet. No. 4 of 2021 before the Hon'ble Supreme Court as soon as possible. The other ground taken is that the Manipur Legislative Assembly on 28-03-2020 has notified the vacancies in the seat from 7-Andro Assembly Constituency due to the disqualification of the returned candidate/present respondent No. 1. However, due to the pendency of the election petition, no Bye-Election has been held. The applicant however apprehends that once the Judgment and Order dated 01-03-2021 reaches the Election Commission of India, the Election Commission may initiate the process of Bye-election. In that view of the matter, he presses for application of Section 116B of the Representation of People Act, 1951 (Act of 1951 in short).

[4] Mr. H. S Paonam, learned senior counsel for the respondent No. 1/returned candidate however submits that no MC(EP) No. 15 of 2021 Page 3 sufficient cause has been shown by the applicant for pressing Section 116B of the Act of 1951 and the main apprehension of the applicant is that the Election Commission may proceed with the process for holding Bye-election in 7-Andro Assembly Constituency. He also submits that the returned candidate/respondent No. 1 has been disqualified by the Speaker of the Manipur Legislative Assembly and the same has attained finality.

[5] I have heard learned counsel for both the parties. [6] Section 116B of the Act of 1951 reads as under:

"116B. Stay of operation of order of High Court.-(1) An application may be made to the High Court for stay of operation of an order made by the High Court under section 98 or section 99 before the expiration of the time allowed for appealing therefrom and the High Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay of operation of the order; but no application for stay shall be made to the High Court after an appeal has been preferred to the Supreme Court.

(2) Where an appeal has been preferred against an order made under section 98 or section 99, the Supreme Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order appealed from.

(3) When the operation of an order is stayed by the High Court or, as the case may be, the Supreme Court, the order shall be deemed never to have taken effect under sub-section (1) of section 107; and a copy of the stay order shall immediately be sent by the High Court or, as the case may be, the Supreme Court, to the Election Commission and the Speaker or Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned."

[7] Consideration of Section 116B of the Act of 1951 clearly indicates that the application must be filed after MC(EP) No. 15 of 2021 Page 4 showing sufficient cause and on such terms and conditions it may think fit, the High Court may stay operation of the order but no application for stay shall be made to the High Court after appeal has been preferred to the Supreme Court. [8] The ground taken by the applicant for staying the Judgment and Order dated 01-03-2021 passed by this Court in El. Pet. No. 4 of 2017 has been stated at Para Nos. 6 to 10 of the present application and which has already been reproduced above. The grounds taken by the applicant that he intends to file an appeal before the Hon'ble Supreme Court and that the Election Commission of India may proceed for initiating the process of Bye-election in the constituency concerned is in no way sufficient cause for filing of the present application and in the considered opinion of this Court, the application has no merit and the same is liable to be dismissed.

[9] After pronouncing of the Judgment and in the absence of sufficient cause being shown by the applicant as provided under Section 116B of the Act of 1951, this Court is of the considered opinion that it would not be in the interest of justice to stay the operation of its own judgment.

In that view of the matter, I find no merit in the present application and the same is accordingly dismissed.

                                                                   JUDGE

                      kim
         Digitally
Yumk     signed by
         Yumkham

ham      Rother
         Date:
         2021.03.19
Rother   15:04:37
         +05'30'
                      MC(EP) No. 15 of 2021                                     Page 5