Manipur High Court
Khuraijam Loken Singh vs Shri Oinam Lukhoi Singh on 29 May, 2023
SHOUGRA Digitally signed by
[1]
SHOUGRAKPAM
KPAM DEVANANDA
DEVANAN SINGH
Date: 2023.05.29
DA SINGH 11:32:14 +05'30' IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC(El. Petn.) No. 188 of 2022
(Ref:- El. Petn. No. 19 of 2022)
Khuraijam Loken Singh, aged about 51 years, S/o Khuraijam Yaima
Singh a resident of Yumnam Huidrom Leikai, P.O. & P.S. Wangoi,
Imphal West District, Manipur - 795009.
... Applicant
-Versus-
1. Shri Oinam Lukhoi Singh, aged about 46 years, S/o (L) Oinam
Dhananjoy Singh of Laku Huidrom Awang Leikai and also at
Thiyam Leishangkhong, P.O. & P.S. Wangoi, District Imphal
West, Manipur-795009.
2. Shri Salam Joy Singh, aged about 48 years, S/o (L) Salam
Krishnadas Singh of Samurou Awang Leikai, P.O. & P.S. Wangoi,
District- Imphal West, Manipur-795009.
... Respondents
-AND-
IN THE MATTER OF:
Election Petition No. 19 of 2022
Shri Oinam Lukhoi Singh, aged about 46 years, S/o (L) Oinam
Dhananjoy Singh of Laku Huidrom Awang Leikai and also at
Thiyam Leishangkhong, P.O. & P.S. Wangoi, District Imphal
West, Manipur-795009.
... Petitioner
-Versus-
1. Shri Khuraijam Loken Singh, aged about 51 years, S/o
Khuraijam Yaima Singh a resident of Yumnam Huidrom Leikai,
P.O. & P.S. Wangoi, Imphal West District, Manipur - 795009.
2. Shri Salam Joy Singh, aged about 48 years, S/o (L) Salam
Krishnadas Singh of Samurou Awang Leikai, P.O. & P.S.
Wangoi, District- Imphal West, Manipur-795009.
... Respondents
[2]
B E F O R E
HON'BLEMR. JUSTICE AHANTHEMBIMOL SINGH
For the Applicant :: Mr. S. Biswajit, Senior Advocate asstd.
by Ms. Ishori, Advocate
For the respondents :: Mr. Ajoy Pebam, Advocate
Date of Hearing :: 03-05-2023
Date of Judgment :: 29-05-2023
J U D G M E N T
[1] Heard Mr S. Biswajit, learned senior counsel assisted by
Ms. Ishori, learned counsel appearing for the applicant and Mr. Ajoy
Pebam, learned counsel appearing for the respondent No. 1. None
appeared for the respondent No. 2.
[2] The present application had been filed with the prayer for
dismissing the connected Election Petition No. 19 of 2022 on the following
grounds:-
(a) The copy of the election petition furnished to the applicant
(respondent No. 1 in the connected Election Petition) is not a true
copy of the election petition filed before the registry of this court
as the copy furnished to the applicant does not bear any
attestation including seal, affirmation and signature of the Oath
Commissioner specially in the affidavit accompanying the
election petition. Hence, the said copy of the election petition
served to the applicant is not a true copy of the election petition
filed in this court.
(b) At page 5 and page 42 of the election petition, the petitioner
made addition and alteration by way of handwriting without any
[3]
attestation and verification by any competent authority to
authenticate the addition and alteration.
(c) Even though the election petitioner at paragraphs 34 of his
election petition alleged commission of corrupt practice by the
applicant, no affidavit in the prescribed form in support of such
allegation of corrupt practice has been filed as provided under
Section 83 of the RP Act.
[3] Mr. S. Biswajit, learned senior counsel appearing for the petitioner
submitted that the affidavit accompanying the copy of the election petition
furnished to the applicant did not bear any attestation including seal,
affirmation and signature of the Oath Commissioner, hence, the said copy
of the election petition served to the applicant cannot be said to be a true
copy of the election petition filed before this court. The learned senior
counsel further submitted that the said affidavit filed in support of the
pleadings made in the election petition should be attested and verified by
an Oath Commissioner and thereafter, a true copy of the same should be
served to the respondents otherwise the election petition is liable to be
dismissed for non-compliance of the provision of Section 81 of the
Representation of People Act ("RP Act" for short). In support of his
contention, the learned senior counsel relied on the judgment rendered by
the Hon'ble Apex Court in the case of "Harcharan Singh Josh Vs. Hari
Kishan" reported in (1997) 10 SCC 294 wherein the Hon'ble Apex Court
held as under:-
[4]
"2. It is not necessary for us to go into the grounds on which the
election petition was dismissed by the High Court. Suffice it to
state that the objections raised by the respondent regarding non-
supply of the true copy of the affidavit is a formidable objection
which merits acceptance in view of the recent judgment of this
Court in Shipra (Dr) v. Shanti Lal Khoiwal. Therein the copy of the
affidavit supplied to the respondent was not attested by the Oath
Commissioner. This Court, after considering the entire case-law,
held that the affirmation before the prescribed authority in the
affidavit and the supply of its true copy is mandatory so that the
returned candidate would not be misled in his understanding
that imputation of the corrupt practices were solemnly affirmed
and duly verified before the prescribed authority. For that
purpose, Form 25 prescribed by Section 83 requires verification
before the prescribed authority. The concept of substantial
compliance has no application in such a case. It is seen that the
copy of the affidavit supplied to the respondent does not contain
the affirmation by the Oath Commissioner. Under these
circumstances, the defect is not a curable defect. Therefore, the
dismissal of the election petition on this ground is sustainable
in law.
[4] In connection with the second ground, the learned senior counsel
appearing for the applicant submitted that at page 5 and page 42 of the
election petition, the election petitioner made certain addition and alteration
by way of handwriting without any attestation and verification by any
competent authority to authenticate such addition and alteration. The
learned senior counsel accordingly submitted that the election petition is
liable to be dismissed for making such addition and alteration as no addition
or alteration can be made in the election petition without demonstrating the
authenticity of the same.
[5] In connection with the third ground, it has been submitted by the
learned senior counsel appearing for the applicant that at para 34 of the
election petition, the petitioner alleged commission of corrupt practice by
the applicant, however, the petitioner failed to file an affidavit in the
[5]
prescribed form in support of the allegation of such corrupt practice as
provided under Section 83 of the RP Act. The learned senior counsel
submitted that filing of such affidavit is not just a mere formality but is a
mandatory requirement under law and as such non-filing of the said affidavit
is a vital mistake on the part of the election petitioner. It has also been
submitted that since filing of an affidavit in the prescribed form in support of
the allegation of such corrupt practice is mandatorily required under the
proviso to sub-section (i) of Section 83 of the RP Act, the election petition
is liable to be dismissed at the threshold. In support of his contention, the
learned senior counsel cited the following case laws:-
1. "V. Narayanaswamy Vs. C.S. Thirunavukkarasu" reported in
(2002) 2 SCC 294.
"26. Material facts and material particulars certainly connote two
different things. Material facts are those facts which
constitute the cause of action. In a petition on the allegation
of corrupt practices the cause of action cannot be equated
with the cause of action as is normally understood because
of the consequences that follow in a petition based on the
allegations of corrupt practices. An election petition seeking
a challenge to the election of a candidate on the allegation of
corrupt practices is a serious matter; if proved, not only does
the candidate suffer ignominy, he also suffers disqualification
from standing for election for a period that may extend to six
years. Reference in this connection may be made to Section
8-A of the Act. It was for this purpose that the proviso to sub-
section (1) of Section 83 was inserted by Act 40 of 1961 (w.e.f.
20-9-1961) requiring filing of the affidavit in the prescribed
form where there are allegations of corrupt practice in the
election petition. Filing of the affidavit as required is not a
mere formality. By naming a document as an affidavit it does
not become an affidavit. To be an affidavit it has to conform
not only to the form prescribed in substance but has also to
contain particulars as required by the rules.
[6] I have heard the rival submissions advanced by the learned
counsel appearing for the parties at length and also carefully examined the
materials available on record. In connection with the first ground raised by
[6]
the learned senior counsel appearing for the applicant, it is to be pointed
out that the said ground is no longer an undecided question of law. In this
regard, we can gainfully refer to the following judgments rendered by the
Hon'ble Apex Court:-
1. In the case of "T. Phungzathang Vs. Hangkhanlian & ors."
reported in (2001) 8 SCC 358, it has been held by the Hon'ble
Apex Court as under -
"17. In the above-declared legal position, if we examine the
case in hand, we notice that the only lacuna pointed out
by the contesting respondent in his application in Civil
Miscellaneous Election Case No. 3 of 2000 is that the copy
supplied to him did not contain the verification or affirmation
made by the Oath Commissioner or the prescribed authority
as required in Form 25 and Rule 94-A of the Conduct of
Elections Rules, 1961. It is not the case of Respondent 1 that
the original affidavit filed along with the election petition in
Form 25 did not contain such verification or affirmation. On
the contrary, it is an admitted fact that such affirmation or
verification was made in the original affidavit filed before the
High Court. Therefore, the question arising in this appeal is:
would this omission as pointed out by the respondent in his
petition, ipso facto entail dismissal of the election petition
under Section 86(1) of the Act? In view of the aw laid down in
Jacob case the answer then should be no" because by such
omission the copy supplied will not cease to be a "true copy"
and there is no possibility of any prudent person being in any
manner misled in defending himself or being prejudiced in the
defence of his case. Further, such omissions are only curable
irregularities."
2. "Ram Prasad Sarma: Mani Kumar Subba Vs. Mani Kumar Subba: Ram
Prasad Sarma" reported in 2002 Legal Eagle (SC) 918.
"18. THE purpose of the provision to furnish a true copy of the
petition is not to frustrate the cause of the petitioner
approaching the court by adhering strictly to technicalities
of little consequence. On the other hand the anxiety is that
the respondent must have correct idea of the allegations of
corrupt practices made against him with some responsibility
and that he may not be misled in any material respect by
furnishing of a copy of the affidavit which may not be a
correct copy having vital variation from the original. It is true
that in the matters relating to elections and election petitions,
strict compliance of the legal provisions is necessary and full
[7]
care is to be taken to see that rights of an elected
representative are not lightly disturbed and rightly so. But an
election petition is not to be thrown at the threshold on the
slightest pretext of one kind or the other which may or may
not have any material bearing on the factors to be strictly
adhered to in such matters. It is substance not form which
would matter. If it is permitted otherwise, the returned
candidate would only be in the look out microscopically for
any kind of technical lacuna or defect to abort the endeavour
of the petitioner to bring to trial the issues relating to
corrupt practices in the elections. The purpose of the law on
the point cannot be to allow the returned candidate to avoid
the trial of the issues of corrupt practices raised against him
on the basis of any little defect which may not result in any
vital variation between the original and the true copy so as to
have the effect of misleading the returned candidate. As it is,
the prevailing situation of elections and practices often said
to be adopted now and then and here and there does not
always give a very happy picture. Free, fair and fearless
election is ideal to be achieved and not to be defeated for the
sake of pretentious and frivolous technicalities."
"20. LEARNED senior counsel for the respondent then submits
that in the case in hand on the copy there is no stamp of the
notary, nor anything is mentioned about attestation by
him nor that the affidavit was verified before the oath
commissioner and was signed by him (oath commissioner).
Therefore, it would be a different case from one in which in
the true copy it was indicated that the affidavit was signed by
the notary and in another case where it was not so noted but
copy of stamp of notary may be there in the true copy without
indicating that the affidavit was verified or signed by the
oath commissioner as in those cases the returned
candidates might know that the allegations relating to
corrupt practices have been verified and attested before the
oath commissioner even though it is not indicated in the true
copy that it was signed by the oath commissioner. We are
unable to appreciate the above submission. Mere indication
of the stamp of oath commissioner without any indication in
the true copy that the affidavit was attested before the
oath commissioner and signed by him (oath commissioner)
will have no different effect from one where nothing is
indicated about the stamp and verification before the oath
commissioner because it is not necessary that mere stamp
of the oath commissioner must lead to the inference that the
affidavit was also sworn before and signed by the oath
commissioner in attestation thereof. Therefore, such a case
would be at the same footing as where nothing is indicated
regarding swearing of the affidavit before the oath
commissioner."
[8]
[7] In the case of "T. Phungzathang Vs. Hangkhanlian & ors."
reported in (2001) 8 SCC 358, the Hon'ble Apex Court has held that the
decision laid down in the case of Harcharan Singh Josh (supra) relied on
by the learned senior counsel appearing for the applicant cannot be
construed as a good law any more. Relevant portions of the judgments are
as under:-
1. "T. Phungzathang Vs. Hangkhanlian & ors." reported in (2001) 8
SCC 358.
"19. Having come to the conclusion that the facts of the present
appeal are fully covered by the Constitution Bench judgments
of this Court in Jacob case and Deshmukh case? We will now
discuss the applicability of Harcharan Singh Josh case to the
facts of this case bearing in mind that the High Court has
relied on this case also to dismiss the election petition. It is
true that in Josh case this Court extended the principle laid
down in Dr. Shipra case but then this Court in Jacob case³ in
clear terms held that the application of the principle found in
Dr Shipra case is confined only to the facts of that case;
meaning thereby that it is applicable only in cases where the
original affidavit filed before the High Court contained the
omissions and not to copies of the affidavit supplied to the
respondents. Therefore, it is clear that the application of the
principle in Dr. Shipra case to the facts of Josh case is clearly
impermissible. In that view of the matter, the decision in Josh
case being contrary to Jacob case the same cannot be
construed as a good law any more. Therefore, the High Court
in the instant case could not have relied on Josh case to
dismiss the election petition.
2. "Ram Prasad Sarma: Mani Kumar Subba Vs. Mani Kumar Subba: Ram
Prasad Sarma" reported in 2002 Legal Eagle (SC) 918.
"16. IN yet another decision in the case of Sri T. Phungzathang v.
Sri Hangkhanlian and Others, it has been held that the case
of Harcharan Singh Josh (supra) does not lay the correct law.
It has also been observed that an election petition
accompanied by an affidavit has two parts out of which the
verification part by the oath commissioner is not an integral
part of the petition and the affidavit. If the copy furnished to
the returned candidate does not contain the words as the
[9]
true copy so far the attestation part by the oath
commissioner is concerned, it would not violate the
requirement of furnishing of true copy of the election petition
and the affidavit thereof. This is also a decision by three
judge bench rendered on considering the decision in the
cases of Dr. Shipra, Murarka Radhey Shyam and T.M. Jacob
(supra). It was held that in view of the two constitution bench
decisions in the case of Harcharan Singh Josh (supra)
cannot be held as laying down the correct law. The Court
followed the decision in the case of T.M. Jacob and Anil R.
Deshmukh (supra). The fact situation of the case was also
quite akin to the case in hand. The allegations of corrupt
practices were made. The original petition contains the
affidavit with all necessary endorsement and attestation by
the oath commissioner. But the copy supplied did not
contain any such verification or affirmation. While ascribing
additional reasons in support of the decision, one of us (R.C.
Lahoti, J.), who was a member of the bench observed that
endorsement made by the officer administering oath to the
deponent is not an integral part of the affidavit. Preparing,
signing and swearing of an affidavit are act of deponent;
administering oath and making an endorsement in proof
thereof on the affidavit are acts of the officer administering
the oath. The former relates to form of an affidavit which the
latter is mode and manner of swearing in an affidavit. The
latter part of the provision prescribes the person recognized
by the Act or the rules as competent to administer the oath
to the deponent and his endorsement is not an integral part
of the affidavit."
"17. FROM the various decisions noted above, it clearly emerges
out that the correctness of the decision in Dr. Shipra's case
(supra) was doubted and it has been held by the constitution
bench in the T.M. Jacob's case (supra) that it was confined to
the facts of that case. Therefore it cannot be said that Dr.
Shipra's case lays down any proposition of law of binding
nature. The two decisions of the constitution benches,
namely. Radhey Shyam Murarka and T.M. Jacob (supra) hold
the field as well as the decision in the case of Sri T.
Phungzathang (supra). The law as laid down in the above
noted decisions would be the guiding precedents in deciding
a question relating to a true copy of an affidavit."
In view of the above quoted law laid down by the Hon'ble Apex
Court, this court find no substance in the first ground raised by the senior
[10]
counsel appearing for the applicant and accordingly, the same is hereby
rejected.
[8] With regard to the second ground raised on behalf of the
applicant, the addition and alteration made at page 5 and page 42 of the
election petition are as under:-
(i) The addition of the name of the father of the respondent No. 2 in
the cause title of the election petition; and
(ii) Alteration or correction of the date of verification of the affidavit
accompanying the election petition. The said addition or alteration
is supported by the signature of the person carrying out the said
alteration or correction. It has also been verified from the record
that the said addition or alteration were carried out before filing of
the election petition and well before the prescribed period of
limitation provided under Section 81 of the RP Act.
In view of the above, this court did not find any substance or merit
in the second ground raised by the applicant and accordingly, the same is
hereby rejected.
[9] With regard to the argument advanced on behalf of the
applicant for dismissing the election petition for non-compliance with the
requirements of filing an affidavit in support of the allegation of corrupt
practice as provided under the proviso to Section 83(1) of the RP Act, this
court is of the considered view that the allegation made in the election
[11]
petition are mainly in connection with the improper acceptance of the
nomination of the applicant and non-compliance with the statutory
provisions. The allegation regarding corrupt practice made in the election
petition relates to the concealment of material information in Form -26
affidavit filed by the applicant, which amounts to undue influence as defined
in Section 123(2) of the RP Act, 1951.
[10] In the case of "Lok Prahari through its General Secretary Vs.
Union of India & ors.", reported in (2018) 4 SCC 699, the Hon'ble Apex
Court held that non-disclosure of assets and source of income by the
candidate and their associates would constitute a corrupt practice falling
under the heading "undue influence" as defined under Section 123(2) of the
RP Act, 1951. The relevant paragraphs of the aforesaid judgments are as
under:-
"79. We shall now deal with Prayer 2 which seeks a declaration that
non-disclosure of assets and sources of income would amount
to "undue influence" - a corrupt practice under Section 123(2) of
the 1951 RP Act. In this behalf, heavy reliance is placed by the
petitioner on a judgment of this Court in Krishnamoorthy v.
Sivakumar. It was a case arising under the Tamil Nadu
Panchayats Act, 1994. A notification was issued by the State
Election Commission stipulating that every candidate at an
election to any Panchayat is required to disclose information,
inter alia, whether the candidate was accused in any pending
criminal case of any offence punishable with imprisonment for
two years or more and in which charges have been framed or
cognizance has been taken by a court of law. In an election
petition, it was alleged that there were certain criminal cases
pending falling in the abovementioned categories but the said
information was not disclosed by the returned candidate at the
time of filing his nomination. One of the questions before this
Court was whether such non-disclosure amounted to "undue
influence" - a corrupt practice under the Panchayats Act. It may
be mentioned that the Panchayats Act simply adopted the
definition of a corrupt practice as contained in Section 123 of the
RP Act of 1951.
[12]
"80. On an elaborate consideration of various aspects of the matter,
this Court in Krishnamoorthy case held as follows:
"91. ... While filing the nomination form, if the requisite
information, as has been highlighted by us, relating to
criminal antecedents, is not given, indubitably, there is an
attempt to suppress, effort to misguide and keep the people
in dark. This attempt undeniably and undisputedly is undue
influence and, therefore, amounts to corrupt practice. ..."
"81. For the very same logic as adopted by this Court in
Krishnamoorthy, we are also of the opinion that the non-
disclosure of assets and sources of income of the
candidates and their associates would constitute a corrupt
practice falling under heading "undue influence" as defined
under Section 123(2) of the 1951 RP Act. We, therefore, allow
Prayer No.2."
[11] In the case of "Umesh Challiyil Vs. K.P. Rajendran"
reported in 2008 Legal Eagle (SC) 305, it has been held by the Hon'ble
Apex Court as under:-
"14. However, in fairness whenever such defects are pointed then the
proper course for the Court is not to dismiss the petition at the
threshold. In order to maintain the sanctity of the election the
Court should not take such a technical attitude and dismiss the
election petition at the threshold. On the contrary after finding the
defects, the Court should give opportunity to cure the defects and
in case of failure to remove/ cure the defects, it could result into
dismissal on account of Order 6 Rule 17 or Order 7 Rule 11 CPC.
Though technically it cannot be dismissed under Section 86 of
the Act of 1951 but it can rejected when the election petition is
not properly constituted as required under the provisions of the
CPC but in the present case we regret to record that the defects
which have been pointed out in this election petition was purely
cosmetic and it does not go to the root of the matter and secondly
even if the Court found them of serious nature then at least the
court should have given an opportunity to the petitioner to rectify
such defects."
In the case of "A. Manju Vs. Prajwal Revanna @ Prajwal R. & ors."
reported in 2001 Legal Eagle (SC) 901, it has been held by the Hon'ble Apex
Court as under-
[13]
"21. Thus, the real and core question before us is that in view of the
allegations of the alleged non-disclosure of assets in Form-26
by respondent No.1 being cited as corrupt practice", would it be
mandatory for the election petitioner to file an affidavit in Form-
25 and what would be the consequences of not filing such an
affidavit."
"22. We may take note of the Constitution Bench judgment of this
Court in Murarka Radhey Shyam Ram Kumar v. Roop Singh
Rathore AlR 1964 SC 1545: (1964) 3 SCR 573 which opined that
the defect in verification of an affidavit cannot be a sufficient
ground for dismissal of the petitioner's petition summarily and
such an affidavit can be permitted to be filed later. This
Constitution Bench judgment was also referred to in G.M.
Siddeshwar (supra) case to come to a conclusion that non-
compliance with proviso to Section 83(1) of the RP Act was not
fatal to the maintainability of an election petition and the defect
could be remedied, i.e., even in the absence of compliance, the
petition would still be called an election petition. We cannot say
that the High Court fell into an error while considering the
election petition as a whole to come to the conclusion that the
allegations of the appellant were not confined only to Section
33A of the RP Act, but were larger in ambit as undue influence
and improper acceptance of nomination of respondent No. 1
were also pleaded as violation of the mandate under Sections
123 and 100 of the RP Act."
"23. However, we are not persuaded to agree with the conclusion
arrived at by the High Court that the non-submission of Form 25
would lead to the dismissal of the election petition. We say so
because, in our view, the observations made in Ponnala
Lakshmaiah (supra) case which have received the imprimatur of
the three Judges Bench in G.M. Siddeshwar (supra) case appear
not to have been appreciated in the correct perspective. In fact,
the G.M. Siddeshwar (supra) case has been cited by the learned
Judge to dismiss the petition. If we look at the election petition,
the prayer clause is followed by a verification. There is also a
verifying affidavit in support of the election petition. Thus,
factually it would not be appropriate to say that there is no
affidavit in support of the petition, albeit not in Form 25. This was
a curable defect and the learned Judge trying the election
petition ought to have granted an opportunity to the appellant to
file an affidavit in support of the petition in Form 25 in addition
to the already existing affidavit filed with the election petition. In
fact, a consideration of both the judgments of the Supreme
Court referred to by the learned Judge, i.e. Ponnala Lakshmaiah
(supra) as well as G.M. Siddeshwar, (supra) ought to have
resulted in a conclusion that the correct ratio in view of these
facts was to permit the appellant to cure this defect by filing an
affidavit in the prescribed form."
"24. The arguments of learned counsel for respondent No.1 were
predicated on the distinction between the absence of an affidavit
and a defective affidavit. This pre-supposes that for an
opportunity of cure to be granted, there must be the submission
of a Form 25 affidavit which may be defective. This would be very
[14]
narrow reading of the provisions. Once there is an affidavit,
albeit not in Form 25, the appropriate course would be to permit
an affidavit to be filed in Form 25. We have to appreciate that the
petition is at a threshold stage. It is not as if the appellant has
failed to cure the defect even on being pointed out so. This is
not a case where the filing of an affidavit now in Form 25 would
grant an opportunity for embellishment as is sought to be urged
on behalf of respondent No. 1."
"25. The appellant states the case clearly and in no uncertain terms
with supporting material in the election petition. Whether the
violation is made out by respondent no. 1 or not would be a
matter of trial but certainly not a matter to be shut out at the
threshold."
[12] In view of the law laid down by the Hon'ble Apex Court as quoted
above and keeping in view the facts and circumstances of the present case,
this court is not inclined to dismiss the election petition on the ground raised
by the applicant.
In view of the facts and circumstances of the present case and
the findings and reasons given hereinabove, this Court is not inclined to
grant the reliefs sought for by the applicant in the present application and
accordingly, the present application is hereby dismissed as being devoid of
merit. Parties are to bear their own cost.
JUDGE
FR / NFR
Devananda
