Manipur High Court
Usham Deben Singh vs Md Fajur Rahim Aged About 51 Years on 14 June, 2024
Author: A.Guneshwar Sharma
Bench: A.Guneshwar Sharma
Reportable
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
MC (Election Petition) No.87 of 2022
Ref: (Election Petition No.23 of 2022)
Usham Deben Singh, aged about 53 years,
s/o (Late) U.Pukchao Singh of 3-Keirak
Awang Usham Leikai, Sub Division
Kakching, PO & PS Kakching District,
Manipur 795103. ... Applicant
-Versus-
1. Md Fajur Rahim aged about 51 years, s/o
Md Fajur Rahman of Irong Chesaba Mathak
Leikai, PO & PS Mayang Imphal, Kakching District,
Manipur 795132
... Respondent/Petitioner
2. Mayengbam Ranjit Singh, aged about 47
Years, s/o (late) M.Manihar Singh of Wabgai Tera
Urak, PO & PS Kakching, Kakching District,
Manipur 795103.
3. Md.Sikander, aged about 43 years, s/o
Md Ahmad Ali of Santhel Mayai Leikai, PO & PS
Mayang Imphal, Kakching District, Manipur 795132.
4. Sakir Ahmed, aged about 39 years, s/o
(late) Hayad Ali of Sekmaijin Hungul Ngakhapat,
Hangul, PO Mayang Imphal, PS Hiyangbam,
Kakching District, Manipur 795132
... Respondents
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 1
IN
Election Petition No.23 of 2022
Md Fajur Rahim aged about 51 years, s/o
Md Fajur Rahman of Irong Chesaba Mathak
Leikai, PO & PS Mayang Imphal, Kakching District,
Manipur 795132
... Petitioner
-Versus-
1. Usham Deben Singh, aged about 53 years,
s/o (Late) U.Pukchao Singh of 3-Keirak
Awang Usham Leikai, Sub Division
Kakching, PO & PS Kakching District,
Manipur 795103
2. Mayengbam Ranjit Singh, aged about 47
Years, s/o (late) M.Manihar Singh of Wabgai Tera
Urak, PO & PS Kakching, Kakching District,
Manipur 795103.
3. Md.Sikander, aged about 43 years, s/o
Md Ahmad Ali of Santhel Mayai Leikai, PO & PS
Mayang Imphal, Kakching District, Manipur 795132.
4. Sakir Ahmed, aged about 39 years, s/o
(late) Hayad Ali of Sekmaijin Hungul Ngakhapat,
Hangul, PO Mayang Imphal, PS Hiyangbam,
Kakching District, Manipur 795132
... Respondents
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 2
BEFORE
HON'BLE MR. JUSTICE A.GUNESHWAR SHARMA
For the Applicant :: Mr.M.Hemchandra, Sr. Adv,
Mr.Tolapishak, Advocate &
Mr. N. Rendy, Advocate
For the Respondent/1:: Mr.N.Ibotombi, Sr.Advocate,
Mrs. N. Savitri, Advocate
Date of Hearing :: 02.02.2024/13.02.2024
Date of Judgment :: 14.06.2024
JUDGMENT & ORDER
[1] By the present application being MC(Election Petition) No. 87 of
2022 in Election Petition No. 23 of 2023, the respondent No.1/applicant
(returned candidate) filed under Order 7 Rule 11 of the Code of Civil
Procedure (in short, CPC), the maintainability of the election petition
being Election Petition No. 23 of 2022 is challenged.
[2] Heard Mr. M. Hemchandra, learned senior counsel assisted by
Mr. Th. Tolpishak, Advocate and Mr. M. Rendy, Advocate on behalf of
the respondent No.1/applicant and Mr. N. Ibotombi, learned senior
counsel assisted by Mrs. N. Savitri, Advocate on behalf of the election
petitioner.
[3] The instant application arises out of Election Petition No.23 of
2022, which prayed for declaring the election of the respondent No.1
as Member to the 12th Manipur Legislative Assembly from 36-Wabgai
Assembly Constituency as null and void, coupled with a prayer to
declare the Election Petitioner, a candidate nominated and set up by
the Indian National Congress, as elected Member of the 12 th Manipur
Legislative Assembly from 36-Wabgai Assembly Constituency, on the
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 3
ground that the names of the 30 service voters mentioned in para
No.15 of the Petition are not ordinarily residents of 36-Wabgai
Assembly Constituency. These non-resident 30 service voters have
casted their votes as service voters on the basis of service voter list
2022 prepared by the Election Authority in collusion with the said voters
and respondent No.1 (returned candidate). It is also stated that the
names of the 111 voters mentioned in para No.16 of the Election
Petition who are central government employees and senior citizens
80+, have casted their vote by means of ETPBS and Postal Ballots, ie,
voted twice. As the said 111 voters have casted their votes in the polling
stations as well as by means of ETPBS and Postal Ballots, such ballots
should be declared as void.
[4] As per Notice dated 16.02.2022 issued by the Returning Officer,
the number of voters in respect of AVSC or Senior Citizens and AVPD
or persons with disability flagged in the database of electoral roll are
229 numbers of 80+ and 44 numbers of PWD, whereas as per the
Letter dated 28.03.2022 issued by the Returning Officer, the number
of Senior Citizen (above 80 yrs.) is 453 voters and number of PWD is
53. Regarding the discrepancy, the Election Authority is required to
explain why the number of 80+ voter has been increased from 229
voters to 453 voters and also the increase of the number of voter of
PWD from 44 voters to 53 voters. It is submitted that the said increased
votes have been casted in favour of the Respondent No.1, in collusion
with the Election Authority and as such, the Election of the
Applicant/Respondent No.1 be declared as void.
[5] The respondent No.1, at the outset submits that the petitioner
in the above referred election petition has failed to mention in each
pages of the copy of the election petition "Attested to be true copy" of
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 4
the enclosed Annexures and conspicuously in para No.23 wherein,
under Section 117 of the RP Act, 1951 read with Chapter VII-A Rule
1(d) of the High Court of Manipur Rules, 2019 a sum of Rs.2000/- (Two
thousand rupees) only has not mentioned as "Attested to be true copy
of the Original Challan No.323 dated 19.04.2022 is enclosed herewith
and marked as Annexure A/nil therefore, when the enclosed statement
of the Original Challan No.323 dated 19.04.2022 is not mentioned in
the same amount as not enclosed in the present Election Petition,
thereby failed to abide the section 117 of the RP Act, 1951 read with
Chapter VII-A Rule 1(d) of the High Court of Manipur Rules, 2019 and
in these light the present Election is defective and not maintainable.
[6] It is further stated that after perusal of the present Election
Petition the custody of the documents claimed in para No.15 and 16
calling the records, i.e Register maintained by the Election authority for
issuing ETBPS, Electoral Roll of 38 Hiyanglam AC, 35 KhangabokAC, 23
Mayang Imphal A/C and 37 Kakching AC through the Returning Officer,
36 Wabgai Assembly Constituency in respect of the alleged thirty voters
and the Register maintained by the Election authority for issuing the
ETBPS, Postal Ballot papers and marked copy of electoral Rolls,
Electoral roll in the polling Stations through the Returning Officer, 36
Wabgai Assembly Constituency of the alleged 111 (one hundred
eleven) voters, however the grounds for calling the said records are
under the domain of District Electoral Officer and Joint/Chief Electoral
Officer and there is no such particular allegation for collusion along with
the election authority and nowhere it is mentioned in the pleadings the
word "corrupt practice" that materially affect the election and make out
locus standi /right to file the present Election Petition.
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 5
[7] It is also stated that there is no cause of action since all the
allegation made in the Election is wildly imaginary and submitted from
procrastination of being unbearable from the loss of the election against
the returned candidate/applicant.
[8] Respondent No.1/election petitioner filed written objection to
the misc. application for rejection of the election petition of the
applicant denying the averment of not mentioning 'attested to be true
copy' on annexures and stated that the same is marked on each page
of the annexures. It is also clarified that it is not required to mark
'attested to be true copy' in the petition itself and such lapses, if any,
could not be a ground for rejection of election petition. Regarding non-
marking of the original challan of Rs.2000/- as a security for the election
petition in terms of High Court of Manipur Rules, 2019, the same is not
a ground for rejection of the election petition as challan under Chapter
VII-A of the High Court Rules is not a part of document for election
petition. Annexing the same with the election petition is sufficient
compliance of the provisions of Section 117 of the Representation of
Peoples Act, 1951. It is further stated that election authority is not a
necessary party to the election petition as stipulated under Section 82
of RPA, 1951 and only candidates are the necessary parties. It is further
clarified that material facts as mandated under Section 83 of RPA, 1951
have been taken. The issues raised by the applicants in his written
statement are to be decided during the trial. It is prayed that the
application for rejection of election petition be rejected with exemplary
cost.
[9] Mr. M. Hemchandra, learned senior counsel for the
applicant/respondent No.1 in the election petition has raised the
following objections to the maintainability of the election petition in the
present form.
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 6
[10] First objection is regarding failure to mention on each page of
the election petition "Attested to be true copy" of the enclosed
Annexures, ie, on page Nos. 11, 12, 13, 35, 38, 40 and in para 23 also
not mention "Attested to be a true copy of the original Challan No. 323
dated 19.04.2022" as annexures in violation of Section 117 of RPA,
1951 read with Chapter VII-A Rule 1(d) of the High Court of Manipur
Rules, 2019. It is submitted that the same amounts to incomplete
material facts in terms of Section 83(1)(a) of the RPA, 1951 and hence,
the election petition can be rejected on this ground alone.
[11] The second ground for objection is for non-joinder of election
authority as a necessary party when allegations are made in para 15,
16 and 20 of the election petition about the collusion between the
election authority and the returned candidate. It is pointed out that the
election petition suffers from non-joinder of necessary party or proper
party under the provisions of Order 1 Rule 9 CPC and the same can be
rejected on this ground also.
[12] The third ground for objection to the maintainability of the
election petition is for failure to file separate affidavit in support of the
allegation of corrupt practice as mandated under proviso to Section
83(1)(b) of RPA, 1951. It is explained the averment of 'collusion' with
the election authority and respondent No.1 (returned candidate)
amounts to allegation of corrupt practice within the meaning of Section
100(1)(b)&(d)(ii) and Part VII Chapter I of the Act (Section 123 which
defines 'corrupt practice'). The averments made in para 15, 16 and 20
of the election petition are nothing but instances of corrupt practice as
defined in Black Law Dictionary. It is further submitted that materials
facts of collusion such as identity of the election officials, time and date
of such act of collusion, etc. are not explained in para 15 and 16 and
hence the same amounts to incomplete facts within the meaning of
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 7
section 83(1)(a)&(b) of RPA, 1951 and non-compliance of Form 25 read
with Rule 94A of the Conduct of Election Rules 1961 regarding affidavit
to be filed along with election petition. It is reiterated that such lapses
are incurable and fatal.
[13] With respect to the plea of non-disclosure of complete facts, Mr.
M. Hemchandra, learned senior counsel for the applicant refers to the
following decisions:
(i) (2001) 8 SCC 233 @ Para 23 & 24- Failure to plead
material fact is fatal to election petition.
(ii) AIR 1994 P&H 32 @ Para 12- Lack of material facts
for collusion of corrupt practice would lead to rejection of election
petition.
(iii) (2008) 7 SCC 604 @ Para 20- insufficient material
facts for corrupt practice to go for a full trial.
(iv) (2009) 10 SCC 541 @ Para 14-21- Rejection of
election petition on failure to disclose material facts.
(v) (2014) 10 SCC 547 @ Para 18 & 19- Materials of
corrupt practice should be given completely.
(vi) (2009) 9 SCC 310 @ Para 50 & 51- Omission of single
material fact is fatal.
(vii) 2022 LiveLaw(SC) 802 [Civil Appeal Nos. 5755-56 of
2021 dated 27.09.2022]- Suit is liable to be dismissed for failure
to implead necessary party.
[14] The fourth ground for objection to the maintainability for non-
compliance of Sections 15, 17, 18 and 19 of RPA, 1950 and Section 62
of RPA, 1951 could not be a ground for declaring the election of
respondent No.1/returned candidate as null and void under Section
100(1)(d)(iv) of RPA, 1951. It is highlighted that Section 30 of RPA,
1950 bars jurisdiction of civil court in respect of preparation of electoral
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 8
roll and its revision. Mr. M. Hemchandra, learned senior counsel for the
applicant relies on the decision reported as (1974) 3 SCC 415 @ Para
30- Non-compliance of Section 19 of RPA, 1950 cannot be a ground for
declaring election result as void under Section 100(1)(d)(iv) of RPA,
1951.
[15] The fifth ground for objection is non-existence of the cause of
action, as the election petition is based on imaginary assumptions and
allegations not supported by detailed facts.
[16] The sixth ground for objection is the question of limitation. It is
stated that as per the provisions of Section 81(1) of RPA, 1951, election
petition should be filed within 45 days from the date of declaration of
the result. In the present case, the result of the assembly election was
declared on 10.03.2022 and the 45 days expired on 24.04.2022.
However, the election petition was registered on 30.05.2022 thereby
causing a delay of 5 days. It is stated that registration of the election
petition after 5 days from the date of expiry of 45 days as contemplated
under Section 81(1) of RPA, 1951 cannot be condoned and the same
ought to be dismissed on the ground of limitation. It is submitted that
what is mandated under Section 81(1) of RPA, 1951 is the filing of
election petition without any defect within the stipulated 45 days. Mr.
M. Hemchandra, learned senior counsel relies on the decisions reported
as (i) (1974) 2 SCC 133 @ Para 23- election petition shall be
dismissed for non-compliance of mandatory provisions of Sections 81,
82 or 117 of RPA, 1951; (ii) (1974) 4 SCC 237 @ Para 14- non-
compliance of the provisions of Section 81(3) of RPA, 1951; and (iii)
(1999) 8 SCC 266 @ Para 17. It is emphasised that the
'presentation' used in Section 81 of RPA, 1951 should be read as
'registration' of the election petition. As per RTI reply given by the High
Court, the petition was registered after 5 days delay.
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 9
[17] The seventh ground for objection is regarding no objection from
the election petitioner on the day of poll, ie, on 05.03.2022 as well as
at the time of scrutiny as given in letter dated 28.06.2022 issued by the
Returning Officer of 36- Wabagai AC.
[18] The eight ground for objection is that the grounds raised in para
20 of the election petition will amount to roving and fishing enquiry by
the court.
[19] The ninth ground for objection is that the election petitioner has
failed to show how he has materially been affected.
[20] Mr. M. Hemchandra, learned senior counsel submits that the
election petition being Election Petition No. 23 of 2022 filed by the
petitioner be dismissed with exemplary cost for misusing the process
of court.
[21] Mr. N. Ibotombi, learned senior counsel for the respondent No.1/
election petitioner submits that in all annexures/documents annexed
with the election petition, 'attested to be true copy of the original' is
marked by the petitioner along with his signatures. It is pointed out
that as per Section 83(3) of RPA, 1951, such attestation is required only
in the documents and not required in the body of the election petition.
It is urged that improper marking of annexures is a ground for rejection
of the plaint as contemplated under Order 7 Rule 11 CPC. It is pointed
out that assuming for the sake of argument that such attestation is to
be made in the petition, the same cannot be a ground for rejection of
the election petition at the threshold.
[22] Further, it is clarified that the challan for payment of Rs.2000/-
as security for cost of election petition as contemplated under Section
117 of RPA, 1951 read with Chapter VII-A Rule 1(d) of the High Court
of Manipur Rules, 2019 is not a material particular within the meaning
of Section 83(1) of the Act as held by Hon'ble Supreme Court in a
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 10
catena of cases. Challan is shown in the Index at Sl. No.11 and original
challan is placed at page No.92 of the election petition. The challan is
not a part and parcel of the election petition, rather it is only a statutory
requirement under Section 117 of RPA 1951 read with Rule 1(d) of
Chapter VII-A of the High Court of Manipur Rules, 2019. It is reiterated
that mere filing of the original challan along with the election petition
is a sufficient compliance of the mandatory provisions.
[23] In reply to the plea of non-joinder of necessary party, Mr. N.
Ibotombi, learned senior counsel submits that all parties required under
Section 82 of the Act have been impleaded in the election petition. It is
pointed out that the election authority and the voters are not parties as
contemplated under Section 82 of the Act. It is stated that only the
candidates against whom reliefs are prayed for, are the necessary party
in an election petition.
[24] With respect to the plea of non-filing of separate affidavit for
corrupt practice in terms of the provisions of the proviso to Section
83(1)(b) of RPA, 1951, it is clarified that the petitioner does not plead
corrupt practice in his petition and hence no separate affidavit is
required. Even if assuming for the sake of argument that the plea of
corrupt practice is implicit in para 15 and 16 of the election petition,
the affidavit can be submitted later on as per the decision of the Hon'ble
Apex Court in the case of Thangjam Arunkumar v. Yumkham
Erabot: 2023 INSC 762. It is submitted that there is no merit on this
objection.
[25] Mr. N. Ibotombi, learned senior counsel relies on the decision of
the Hon'ble Supreme Court in the case of R K Roja v. U S Rayudu:
(2016) 14 SCC 275 to emphasise the point that the election petition
can be rejected at the threshold if on reading of the election petition,
the entire petition falls within the purview of the provisions of Order 7
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 11
Rule 11 (a) to (f) of CPC. It is pointed out that the election petition does
not attract any of the situations as stipulated in the above provisions.
On this point, reference is also made to the decision in the case of
Dahiben v. Arvindbhai Kalyanji Bhanusali: (2020) 7 SCC 366 to
highlight that plaint can be rejected if cause of action is not disclosed
on entire reading of the plaint.
[26] With respect to the objection on the ground of limitation, Mr. N.
Ibotombi, learned senior counsel submits that Section 81 of RPA, 1951
specially mentions that an election petition has to be presented within
45 days from the date of declaration of the result. Reading the word
'presented' as registration of election petition would amount to judicial
amendment of the statute. It is clarified that the case law cited by the
applicant, ie, Hukumdev (supra): (1974) 2 SCC 133, does not
postulate such an interpretation. It is submitted that the present
application is filed with an intent to delay proceeding of the election
petition and prays that the application under Order 7 Rule 11 CPC for
rejection of election petition be dismissed being devoid of any merit
with exemplary cost.
[27] This Court has perused the materials on record specially the
contents of election petition, the submissions made at bar, the relevant
provisions of law and case laws in this regard. Before entering into merit
of the application, it will be useful to reproduce relevant provisions of
the statutes.
Code of Civil Procedure, 1908: Order 7 Rule 11.
Rule 11. Rejection of plaint.-- The plaint shall be
rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff,
on being required by the Court to correct the valuation within
a time to be fixed by the Court, fails to do so;
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 12
(c) where the relief claimed is properly valued but the plaint
is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court,
fails to do so;
(d) where the suit appears from the statement in the plaint
to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of
Rule 9;
Provided that the time fixed by the Court for the correction
of the valuation or supplying of the requisite stamp-papers
shall not be extended unless the Court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by any
cause of an exceptional nature from correcting the valuation
or supplying the requisite stamp-papers, as the case may be,
within the time fixed by the Court and that refusal to extend
such time would cause grave injustice to the plaintiff.
The Representation of the People Act, 1951
Section 80. Election petitions.--No election shall be
called in question except by an election petition presented in
accordance with the provisions of this Part.
Section 80-A. High Court to try election petitions.--
(1) The Court having jurisdiction to try an election petition
shall be the High Court.
(2) Such jurisdiction shall be exercised ordinarily by a single
Judge of the High Court and the Chief Justice shall, from
time to time, assign one or more Judges for that purpose:
Provided that where the High Court consists only of one
Judge, he shall try all election petitions presented to that
Court.
(3) The High Court in its discretion may, in the interests of
justice or convenience, try an election petition, wholly or
partly, at a place other than the place of seat of the High
Court.
Section 81. Presentation of petitions.--(1) An election
petition calling in question any election may be presented on
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 13
one or more of the grounds specified in sub-section (1) of
Section 100 and Section 101 to the High Court by any
candidate at such election or any elector within forty-five
days from, but not earlier than the date of election of the
returned candidate or if there are more than one returned
candidate at the election and dates of their election are
different, the later of those two dates.
Explanation.--In this sub-section, "elector" means a person
who was entitled to vote at the election to which the election
petition relates, whether he has voted at such election or
not.
(2) [Omitted]
(3) Every election petition shall be accompanied by as many
copies thereof as there are respondents mentioned in the
petition and every such copy shall be attested by the
petitioner under his own signature to be a true copy of the
petition.
Section 82. Parties of the petition.--A petitioner shall
join as respondents to his petition--
(a) where the petitioner, in addition to claiming declaration
that the election of all or any of the returned candidates is
void, claims a further declaration that he himself or any other
candidate has been duly elected, all the contesting
candidates other than the petitioner, and where no such
further declaration is claimed, all the returned candidates;
and
(b) any other candidate against whom allegations of any
corrupt practice are made in the petition.
Section 83. Contents of petition.--(1) An election
petition--
(a) shall contain a concise statement of the material facts on
which the petitioner relies;
(b) shall set forth full particulars of any corrupt practice that
the petitioner alleges, including as full a statement as
possible of the names of the parties alleged to have
committed such corrupt practice and the date and place of
the commission of each such practice; and
(c) shall be signed by the petitioner and verified in the
manner laid down in the Code of Civil Procedure, 1908 (5 of
1908) for the verification of pleadings:
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 14
Provided that where the petitioner alleges any corrupt
practice, the petition shall also be accompanied by an
affidavit in the prescribed form in support of the allegation
of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be
signed by the petitioner and verified in the same manner as
the petition.
Section 86. Trial of election petitions.--(1) The High
Court shall dismiss an election petition which does not
comply with the provisions of Section 81 or Section 82 or
Section 117.
Explanation.--An order of the High Court dismissing an
election petition under this sub-section shall be deemed to
be an order made under clause (a) of Section 98.
(2) As soon as may be after an election petition has been
presented to the High Court, it shall be referred to the Judge
or one of the Judges who has or have been assigned by the
Chief Justice for the trial of election petitions under sub-
section (2) of Section 80-A.
(3) Where more election petitions than one are presented to
the High Court in respect of the same election, all of them
shall be referred for trial to the same Judge who may, in his
discretion, try them separately or in one or more groups.
(4) Any candidate not already a respondent shall, upon
application made by him to the High Court within fourteen
days from the date of commencement of the trial and
subject to any order as to security for costs which may be
made by the High Court, be entitled to be joined as a
respondent.
Explanation.--For the purposes of this sub-section and of
Section 97, the trial of a petition shall be deemed to
commence on the date fixed for the respondents to appear
before the High Court and answer the claim or claims made
in the petition.
(5) The High Court may, upon such terms as to costs and
otherwise as it may deem fit, allow the particulars of any
corrupt practice alleged in the petition to be amended or
amplified in such manner as may in its opinion be necessary
for ensuring a fair and effective trial of the petition, but shall
not allow any amendment of the petition which will have the
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 15
effect of introducing particulars of a corrupt practice not
previously alleged in the petition.
(6) The trial of an election petition shall, so far as is
practicable consistently with the interests of justice in
respect of the trial, be continued from day to day until its
conclusion, unless the High Court finds the adjournment of
the trial beyond the following day to be necessary for
reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as
possible and endeavour shall be made to conclude the trial
within six months from the date on which the election
petition is presented to the High Court for trial.
Section 87. Procedure before the High Court.--(1)
Subject to the provisions of this Act and of any rules made
thereunder, every election petition shall be tried by the High
Court, as nearly as may be, in accordance with the
procedure applicable under the Code of Civil Procedure,
1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to
refuse, for reasons to be recorded in writing, to examine any
witness or witnesses if it is of the opinion that the evidence
of such witness or witnesses is not material for the decision
of the petition or that the party tendering such witness or
witnesses is doing so on frivolous grounds or with a view to
delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of
1872), shall, subject to the provisions of this Act, be deemed
to apply in all respects to the trial of an election petition.
Section 100. Grounds for declaring election to be
void.--(1) Subject to the provisions of sub-section (2) if the
High Court is of opinion--
(a) that on the date of his election a returned candidate was
not qualified, or was disqualified, to be chosen to fill the seat
under the Constitution or this Act or the Government of
Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been committed by a
returned candidate or his election agent or by any other
person with the consent of a returned candidate or his
election agent; or
(c) that any nomination has been improperly rejected; or
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 16
(d) that the result of the election, in so far as it concerns a
returned candidate, has been materially affected--
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the
returned candidate by an agent other than his election
agent, or
(iii) by the improper reception, refusal or rejection of any
vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders made
under this Act,
the High Court shall declare the election of the returned
candidate to be void.
(2) If in the opinion of the High Court, a returned candidate
has been guilty by an agent, other than his election agent,
of any corrupt practice but the High Court is satisfied--
(a) that no such corrupt practice was committed at the
election by the candidate or his election agent, and every
such corrupt practice was committed contrary to the orders,
and without the consent, of the candidate or his election
agent;
(b) [Omitted];
(c) that the candidate and his election agent took all
reasonable means for preventing the commission of corrupt
practices at the election; and
(d) that in all other respects the election was free from any
corrupt practice on the part of the candidate or any of his
agents,
then the High Court may decide that the election of the
returned candidate is not void.
[28] The sum and substance of the nine objections raised by the
returned candidate in the application for rejection of the election
petition can be summarised into these broad heads- (i) non-marking of
annexures and challan in the election petition; (ii) non-disclosure of
material facts; (iii) limitation; (iv) non-joinder of necessary party; and
(v) other miscellaneous grounds.
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[29] The provisions of Order 7 Rule 11 CPC permit rejection of the
plaint if the same falls within any of the conditions laid down in (a) to
(f) in order to cut short of vexatious litigations at the threshold and in
order to save precious judicial time. It will be fruitful to refer to the
decision of Dahiben v. Arvindbhai Kalyanji Bhanusali, (2020) 7
SCC 366 wherein the Hon'ble Supreme Court held as below:
23.1. We will first briefly touch upon the law
applicable for deciding an application under Order 7
Rule 11 CPC, which reads as under:
"11. Rejection of plaint.--The plaint shall be
rejected in the following cases--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the
plaintiff, on being required by the court to correct the
valuation within a time to be fixed by the court, fails
to do so;
(c) where the relief claimed is properly valued but
the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by the
court to supply the requisite stamp paper within a
time to be fixed by the court, fails to do so;
(d) where the suit appears from the statement in the
plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the
provisions of Rule 9:
Provided that the time fixed by the court for the
correction of the valuation or supplying of the
requisite stamp-papers shall not be extended unless
the court, for reasons to be recorded, is satisfied that
the plaintiff was prevented by any cause of an
exceptional nature from correcting the valuation or
supplying the requisite stamp-papers, as the case
may be, within the time fixed by the court and that
refusal to extend such time would cause grave
injustice to the plaintiff."
(emphasis supplied)
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23.2. The remedy under Order 7 Rule 11 is an
independent and special remedy, wherein the court
is empowered to summarily dismiss a suit at the
threshold, without proceeding to record evidence,
and conducting a trial, on the basis of the evidence
adduced, if it is satisfied that the action should be
terminated on any of the grounds contained in this
provision.
23.3. The underlying object of Order 7 Rule 11(a) is
that if in a suit, no cause of action is disclosed, or the
suit is barred by limitation under Rule 11(d), the
court would not permit the plaintiff to unnecessarily
protract the proceedings in the suit. In such a case,
it would be necessary to put an end to the sham
litigation, so that further judicial time is not wasted.
[30] It is provided by the provisions of Section 87 of RPA, 1951 that
the provisions of CPC will be applicable to the trial of election petition
as nearly as possible subject to the provisions of the Act and any rules
made thereunder. In other words, the rule of CPC will be applicable in
an election petition in consistent with the provisions of RPA, 1951 and
rules made thereunder. In case of any inconsistency, the provisions of
RPA will prevail over the provisions of CPC. From the above referred
para, it is seen that the provisions of Order 7 Rule 11 CPC will be
applicable in an election petition specially the rules stipulated under
sub-rules (a) and (d) of non-disclosure of cause of action and barred
by limitation. In the case of Dahiben (supra), the 'cause of action' is
defined as 'every fact which would be necessary for the plaintiff to
prove, if traversed, in order to support his right to judgment. It consists
of a bundle of material facts, which are necessary for the plaintiff to
prove in order to entitle him to the reliefs claimed in the suit'. In short,
the cause of action consists of materials facts for succeeding in a suit.
If such facts are not disclosed on a plain reading of the plaint, the same
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 19
can be rejected at the threshold. Limitation is one of the grounds for
rejection of plaint under sub-rule (d) to Order 7 Rule 11 CPC.
[31] Apart from the provisions of Order 7 Rule 11 CPC, Section 86(1)
of RPA, 1951 mandates the High Court to dismiss the election petition
for non-compliance of the provisions of Sections 81 (petition filed
beyond 45 days of period of limitation) or Section 82 (non-joinder of
necessary party) or Section 117 (non-deposit of a sum of Rs.2000/- as
security for cost of the election petition) of the Act. Section 83 stipulates
that the concise materials facts and full particular of any corrupt
practices, if alleged in the petition, should be disclosed. Apart from the
provisions of Order 7 Rule 11 CPC, non-compliance of mandate of
Sections 81, 82, 83 and 117 of RPA, 1951 would be grounds of rejection
of election petition on co-joint reading of principles embodied in CPC
and RPA, 1951.
[32] In the case of Hari Shanker Jain v. Sonia Gandhi, (2001) 8
SCC 233, Hon'ble Supreme Court held that the provisions of Section
83(1)(a) of RPA, 1951 of disclosing material facts is mandatory and its
non-compliance, ie, failure to plead material facts is fatal to the election
petition. Relevant para are reproduced below:
23. Section 83(1)(a) of RPA, 1951 mandates that an election
petition shall contain a concise statement of the material
facts on which the petitioner relies. By a series of decisions
of this Court, it is well settled that the material facts required
to be stated are those facts which can be considered as
materials supporting the allegations made. In other words,
they must be such facts as would afford a basis for the
allegations made in the petition and would constitute the
cause of action as understood in the Code of Civil Procedure,
1908. The expression "cause of action" has been
compendiously defined to mean every fact which it would be
necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of court. Omission of a
single material fact leads to an incomplete cause of action
and the statement of claim becomes bad. The function of
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 20
the party is to present as full a picture of the cause of action
with such further information in detail as to make the
opposite party understand the case he will have to meet.
(See Samant N. Balkrishna v. George Fernandez18, Jitendra
Bahadur Singh v. Krishna Behari19.) Merely quoting the
words of the section like chanting of a mantra does not
amount to stating material facts. Material facts would include
positive statement of facts as also positive averment of a
negative fact, if necessary. In V.S. Achuthanandan v. P.J.
Francis20 this Court has held, on a conspectus of a series of
decisions of this Court, that material facts are such
preliminary facts which must be proved at the trial by a party
to establish existence of a cause of action. Failure to plead
"material facts" is fatal to the election petition and no
amendment of the pleadings is permissible to introduce such
material facts after the time-limit prescribed for filing the
election petition.
24. It is the duty of the court to examine the petition
irrespective of any written statement or denial and reject the
petition if it does not disclose a cause of action. To enable a
court to reject a plaint on the ground that it does not disclose
a cause of action, it should look at the plaint and nothing
else. Courts have always frowned upon vague pleadings
which leave a wide scope to adduce any evidence. No
amount of evidence can cure basic defect in the pleadings.
[33] In the case of C.P. John v. Babu M. Palissery, (2014) 10
SCC 547, Hon'ble Supreme Court discussed the mandatory
requirement of pleading all particulars of corrupt practices alleged in
the election petition under the provisions of Section 83(1)(b) of RPA,
1951 and on failure to plead the material details of the alleged corrupt
practices, such name of the persons involved, the time, date and place
of such corrupt practices, the election petition can be rejected at the
threshold. Relevant para are reproduced below:
18. When we read Section 83, the substantive part
of Section 83(1) consists of three important
elements, namely, that an election petition should
contain a concise statement of material facts which
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 21
an election petitioner relies upon. The emphasis is on
the material facts which should be stated in a concise
form. Under Section 83(1)(b) it is stipulated that the
election petition should set forth full particulars of
any corrupt practice which is alleged by the
petitioner. A reading of the said Section 83(1)(b) is
to the effect that such particulars should be complete
in every respect and when it relates to an allegation
of corrupt practice it should specifically state the
names of the parties who alleged to have committed
such corrupt practice and also the date and place
where such corrupt practice was committed. In other
words, the particulars relating to corrupt practice
should not be lacking in any respect. One who reads
the averments relating to corrupt practice should be
in a position to gather every minute detail about the
alleged corrupt practice such as the names of the
persons, the nature of the alleged corrupt practice
indulged in by such person or persons, the place, the
date, the time and every other detail relating to the
alleged corrupt practice.
19. To put it differently, when the election petition is
taken up for consideration, the Court which deals
with such an election petition, should be in a position
to know in exactitude as to what is the corrupt
practice alleged as against the parties without giving
any room for doubt as to the nature of such
allegation, the parties involved, the date, time and
the place, etc. so that the party against whom such
allegation is made is in a position to explain or defend
any such allegation without giving scope for any
speculation. In that context, both Sections 83(1)(a)
and (1)(b) and the proviso play a very key role since
the election petitioner cannot simply raise an
allegation of corrupt practice and get away with it,
inasmuch as the affidavit to be filed in respect of
corrupt practice should specifically support the facts
pleaded, as well as, the material particulars
furnished. Rule 94-A of the Rules in turn stipulates
that the affidavit should be in the prescribed Form
25 and should be sworn before the Magistrate of the
First Class or a notary or the Commissioner of Oaths
and makes it mandatory for the election petitioner to
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 22
comply with the said requirement statutorily. The
format of the affidavit as prescribed in Form 25
elaborates as to the requirement of specifically
mentioning the paragraphs where the statement of
facts are contained and also the other paragraphs
where material particulars relating to such corrupt
practices are alleged. It also mentions as to which of
those statements of facts and material particulars
are based on the personal knowledge of the election
petitioner and such of those statements and
particulars that are made based on the information
gained by the election petitioner.
20. Therefore, a conspectus reading of Section
83(1)(a) read along with its proviso of the Act, as
well as, Rule 94-A and Form 25 of the Rules makes
the legal position clear that in the filing of an election
petition challenging the successful election of a
candidate, the election petitioner should take extra
care and leave no room for doubt while making any
allegation of corrupt practice indulged in by the
successful candidate and that he cannot be later on
heard to state that the allegations were generally
spoken to or as discussed sporadically and on that
basis the petition came to be filed. In other words,
unless and until the election petitioner comes
forward with a definite plea of his case that the
allegation of corrupt practice is supported by legally
acceptable material evidence without an iota of
doubt as to such allegation, the election petition
cannot be entertained and will have to be rejected at
the threshold. It will be relevant to state that since
the successful candidate in an election has got the
support of the majority of the voters who cast their
votes in his favour, the success gained by a
candidate in a public election cannot be allowed to
be called in question by any unsuccessful candidate
by making frivolous or baseless allegations and
thereby unnecessarily drag the successful candidate
to the court proceedings and make waste of his
precious time, which would have otherwise been
devoted for the welfare of the members of his
constituency. Therefore, while deciding the issue
raised, we wish to keep in mind the above lofty ideas,
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 23
with which the provisions contained in Section 83(1)
read along with Section 86 came to be incorporated
while deciding this appeal.
[34] Section 81 of RPA, 1951 stipulates that an election petition shall
be presented within 45 days from the date of declaration of the result
of the returned candidates. Chapter VII-A, Rule 1 of the High Court of
Manipur also prescribes that an election petition should be presented
before the Stamp Reporter of the Court within 45 days from the date
of the election of the returned candidate. In the case of Amin Lal v.
Hunna Mal: AIR 1965 SC 1243, a 5-Judge Constitution Bench of the
Hon'ble Supreme Court held that under Section 81 of RPA, 1951, an
election petition has to be presented within 45 days from the date of
election of the returned candidate. The same ratio is used in the case
reported as (2007) 1 SCC 770. None of the decisions held that the
period of limitation is counted up to the date of registration of the
election petition. It has been consistently held that the period of
limitation for presenting election petition is 45 days from the date of
election of returned candidate. In the case of Chandrakant Shukla
v. Martand Singh: (1973) 3 SCC 194, Hon'ble Supreme Court
specifically held that the election petition should be filed within 45 days
of election of the returned candidate.
[35] It may be pertinent to refer to the provisions of Section 83(2) of
RPA, 1951 stipulating that any schedule or annexures to the election
petition shall also be signed by the petitioner and verified in the same
manner as the petition. This means that the petitioner has to sign and
verify on each annexure. This is the mandate of the statute.
[36] On the basis of the above quoted provisions of relevant statutes
and decisions of the Apex Court, the objections are to be examined
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 24
whether these are within the ambit of the provisions of Order 7 Rule
11 CPC read with Section 86(1) of RPA, 1951.
Decisions
[37] The first objection is that the words "attested to be true copy"
have not been mentioned in the body of the petition while marking
Annexures- A/1 to A/7 and non-marking of the challan of depositing
Rs.2000/- as an annexure in para 23 of the election petition. It is
vehemently argued by Mr. M. Hemchandra, learned senior counsel for
the returned candidate that such non-compliance falls within the vice
of the provisions of Order 7 Rule 11 CPC read with Section 83(2) and
Section 117 of RPA, 1951. This Court does not find any merit in the
submission of Mr. M. Hemchandra as the requirement of signature and
verification as Section 83(2) of the Act is on annexures appended to
the petition and the challan for depositing of Rs.2000/- as cost for
security under Section 117 will not be a material document for deciding
the election petition. Mentioning about the deposit made under Section
117 of the Act in the petition enclosing the original copy of the challan
is a sufficient compliance of the mandate of section 117 of the Act.
[38] The next important objection raised is regarding non-disclosure
of material facts with respect to the plea of corrupt practice as alleged
in para 15, 16 and 20 of the election petition. Mr. M. Hemchandra,
learned senior counsel for the returned candidate has vehemently
submitted that on minute reading of the pleadings in para 15, 16 and
20 of the election petition would constitute plea of corrupt practice as
there has be allegations of collusion between election authority, voters
and the returned candidate. However, there is no particular of the
instances of the corrupt practices and the same is not supported by an
affidavit as mandated under Section 83(1)(b) of the Act and its proviso
and the election petition is liable to be dismissed at the threshold. On
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 25
the other hand, Mr. N. Ibotombi, learned senior counsel for the
petitioner clarifies that the petitioner does not plead corrupt practice as
one of the grounds. On a plain reading of the election petition, the main
grounds for challenge are- (i) 30 non-voters of Wabagai A/C casted
their votes as service voters, and (ii) 111 voters casted their votes
physically as well as by means of ETPBS. The details of these 141
(30+111) voters are given in para 15 and 16 of the election petition. In
para 20 of the petition, the ground for challenge is mentioned as under
Section 100(1)(d)(iv) of RPA, 1951. In other words, the challenge is
made on the ground of non-compliance with the provisions of the
Constitution of India or the RPA, 1951 or any rules or orders made
under the Act. It is seen from the pleadings made in para 15, 16 and
20 that the grounds for challenge are voting by non-voters and double
voting by voters of the constituency. Plea of corrupt practice could not
be deciphered on plain readings of the petition. Moreover, material
facts and particulars of 141 illegal votes have clearly mentioned in para
15 and 16 of the petition. Accordingly, the objection of non-disclosure
of material facts specially the plea of corrupt practice is rejected.
[39] The next plea is limitation. Mr. M. Hemchandra, learned senior
counsel for the returned candidate submits that the result was declared
on 10.03.2022, the election petition was filed on 22.04.2022 and was
registered on 30.04.2022. It is stated that there was a delay of 5 days
in registration of election petition and the word 'presented' used in
Section 81 of RPA, 1951 should be read as 'registered' and hence the
election petition registered on 30.04.2022 is barred by 5 days.
[40] On perusal of the record, it is found that the election petition
was filed on 22.04.2022 before the Stamp Reporter of this Court and
registered on 30.04.2022. Section 81 of the Act mandates that the
election petition be presented within 45 days from the date of
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 26
declaration of result of the returned candidate. As held in a catena of
cases as referred above namely, Amin Lal (supra) and Chandrakant
(supra), the election petition is to be filed within 45 days from the date
of result. Reading the word 'presented' used in Section 81 as
'registered' will amount to judicial amendment. This Court is of the
opinion that the election petition filed on 22.04.2022 is within the
stipulated period of 45 days from the date of declaration of result on
10.03.2022. Accordingly, the objection on the ground of limitation is
also rejected.
[41] The next major objection is non-joinder of necessary party such
as the election authority and 30 voters as mentioned in para 15 of the
petition. As evident from reading of the provisions of Section 82 of RPA,
1951, it is seen that only candidates are the necessary parties in an
election petition. This Court is of the opinion that the provisions of CPC
with regard to Order 1 Rule 9 will be excluded by the provisions of
Section 87 of the RPA, 1951. In case of any inconsistency, the
provisions of the Act will prevail upon the provisions of CPC.
Accordingly, the objection of non-joinder of necessary party is rejected.
[42] This Court is of the opinion that the other objections raised by
the returned candidate on maintainability of the election petition do not
fall within the purview of the provisions of Order 7 Rule 11 CPC read
with Section 86(1) of RPA, 1951 and the same are to be considered
during the trial.
[43] In view of the above discussions, this Court does not find any
merit in the plea of maintainability raised by the returned candidate.
Accordingly, the application being MC(Election Petition) No. 87 of 2022
in Election Petition No. 23 of 2022 filed by the returned candidate is
dismissed with a cost of Rs.30,000/- to be paid by the applicant/
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 27
returned candidate in favour of High Court Bar Association, Manipur
toward relief purposes. The application is disposed of.
[44] List the election petition and other applications on 05.07.2024
for further proceedings. Receipt of the payment of the cost, as directed
above, shall be submitted to the Registry before the next date.
JUDGE
FR/NFR
Priyojit
KH. Digitally signed
by KH. JOSHUA
JOSHUA MARING
Date: 2024.06.14
MARING 14:23:10 +05'30'
MC(EP) NO. 87 OF 2022 IN EP NO. 23 OF 2022: USHAM DEBAN SINGH V. MD. FAJUR RAHIM 28
