Research › Search › Judgment

Gauhati High Court · body

2014 DIGILAW 938 (GAU)

Kameng Dolo v. Atum Welly

2014-10-27

UJJAL BHUYAN

body2014
JUDGMENT Ujjal Bhuyan, J. 1. This application has been -filed by the applicant/respondent Sri Kameng Dolo under Order 6 read with Order 7 Rule 11 and Section 151 of the Code of Civil Procedure, 1908 for dismissal of the election petition on the ground of failure to cull out proper cause of action. The, election petition has been filed by the opposite party/election petitioner for declaring the ejection, of the respondent from 12 Pakke-Kessang (ST) Legislative Assembly Constituency in the State of Arunachal Pradesh as void under Section 98(b) read with Section 100(1)(d)(iv) of the Representation of People Act, 1951 (Act). 2. The case as projected in the election petition is that a general notification was issued on 15.3.2014 notifying holding of general election for constituting a new legislative assembly of the State of Arunachal Pradesh. Schedule declared was as follows:-- (1) Last date of filing nominations 22.3.2014 (2) Date for scrutiny of nominations 24.3.2014 (3) Last date for withdrawal of candidature 26.3.2014 (4) Date of polling 9.4.2014 (5) Last date before which election should be completed 28.5.2014 3. Election petitioner was nominated by the Bharatiya Janata Party (BJP) as its candidate for 12 Pakke-Kessang (ST) Legislative Assembly Constituency. Respondent (applicant herein) was nominated by the Indian National Congress (INC) party as its candidate for the said constituency. No other candidate filed nomination paper for the said constituency except the election petitioner and the respondent. 4. On 24.3.2014, nomination papers of both the candidates i.e., the election petitioner and the respondent were taken up for scrutiny by the Returning Officer. On scrutiny, the nomination papers of both the candidates were found to be in order. At the time of scrutiny, the election petitioner along with his wife, his proposer and his election agent were present at Seppa. In the morning of 25.4.2014, they dispersed to various places. Election petitioner came to Itanagar. In the evening of 26.3.2014, election petitioner learnt at Itanagar about his withdrawal of candidature when he received telephone calls to this effect from many of his supporters and relatives. According to the election petitioner, neither he nor his proposer, election agent and wife were present at Seppa on 26.3.2014. Therefore, question of withdrawal of candidature did not arise. 5. In the evening of 26.3.2014, election petitioner learnt at Itanagar about his withdrawal of candidature when he received telephone calls to this effect from many of his supporters and relatives. According to the election petitioner, neither he nor his proposer, election agent and wife were present at Seppa on 26.3.2014. Therefore, question of withdrawal of candidature did not arise. 5. Though the election petitioner took up the issue before the police as well as before the Election Commission authorities alleging foul play in the withdrawal of his nomination, the Returning Officer of 12 Pakke-Kessang (ST) Legislative Assembly Constituency on 26.3.2014 declared the respondent as having been elected unopposed from the said constituency. Form 21 under Rule 11(1) of the Code of Election Rules, 1961 was accordingly issued. 6. After the election process was over, the election petitioner filed the related election petition contending that there was violation of Section 37of the Act. Election petitioner did not write any notice for withdrawal of his candidature. He also did not authorize his election agent as well as his proposer for withdrawal of his candidature. It was a clear case of foul play. Therefore; acceptance of alleged withdrawal is in violation of Section37 of the Act. Election petitioner has thus contended that the said action has materially affected the result of election in the said constituency in as much as it has led to unopposed election of the respondent from the said constituency. As such, election petitioner has sought for a declaration that election of the respondent is void under Section 100(1)(d)(iv) of the Act. 7. Respondent has filed the instant application raising preliminary objection as to the maintainability of the election petition. It is stated that the issue raised in the election petition is between the election petitioner and the Returning Officer. Election petitioner has not made any specific allegation against the respondent or his election agent of indulging in any corrupt practice. No material cause of action has been spelt out in the election petition against the respondent. Since there is no pleading alleging corrupt practice by the respondent or by his agent, no material cause of action has been pleaded against the respondent and, therefore, the election petition should be dismissed for failing to cull out a proper cause of action. 8. Heard Mr. A. Kashyap, learned counsel for the applicant and Mr. Since there is no pleading alleging corrupt practice by the respondent or by his agent, no material cause of action has been pleaded against the respondent and, therefore, the election petition should be dismissed for failing to cull out a proper cause of action. 8. Heard Mr. A. Kashyap, learned counsel for the applicant and Mr. P.K. Tiwari, learned senior counsel for the opposite party/election petitioner. 9. Mr. Kashyap, learned counsel for the applicant submits that election statute has to be strictly construed. There is no room for equitable consideration. Election of a returned candidate should not be lightly interfered with. Election law being highly technical, both pleadings and the law has to be construed very technically and strictly. He submits that on a reading of Section 100 of the Act it becomes evident that sub-section (1) thereof is subject to sub-section (2) of the said section. In other words, sub-section (2) would have overriding effect over sub-section (1). Sub-section (2) refers to indulging in corrupt practice by a returned candidate. It is necessary to plead corrupt practice by the returned candidate even though the ground of assailing the election is non-compliance of any provision of the Constitution or of the said Act or of any statutory Rules or Orders under the said Act. There is no such pleading in the present case. There is also no pleading in the election petition that the respondent is responsible directly or indirectly for withdrawal of nomination of the election petitioner. In the absence of such pleading, election of the respondent cannot be unsettled. Mr. Kashyap further submits that all material facts and particulars must be pleaded in the election petition. Placing heavy reliance on the decision of the Hon'ble Supreme Court in the case of Mangani Lal Mandal v. Bishnu Deo Bhandari reported in (2012) 3 SCC 314 , Mr. Kashyap argued that mere noncompliance or breach of any constitutional provision or statutory provision by itself would not result in invalidating the election of a returned candidate. It must further be pleaded that because of such non-compliance or breach, the result of the election in so far the returned candidate is concerned, has been materially affected. Kashyap argued that mere noncompliance or breach of any constitutional provision or statutory provision by itself would not result in invalidating the election of a returned candidate. It must further be pleaded that because of such non-compliance or breach, the result of the election in so far the returned candidate is concerned, has been materially affected. He has also placed reliance on the decision of the Hon'ble Supreme Court in Ram Sukh v. Dinesh Aggarwal (2009) 10 SCC 541 to contend that election petitioner must plead the omission on the part of the Returning Officer which materially affected the election result He submits that averments of the election petitioner borders on the realm of conjectures and surmises and, therefore, the election petition should be rejected at the threshold. 10. Submissions made by Mr. Kashyap, learned counsel for the applicant/respondent have been opposed by Mr. Tiwari, learned senior counsel appearing for the opposite party/election petitioner. He submits that it is now a settled proposition of law that in an election petition where a declaration is sought that the result of the returned candidate is void, then only the returned candidate is to be made a party respondent in the petition. If, however, the election petitioner seeks a further declaration for declaring him as the elected candidate, in such a case, not only the returned candidate but all the other candidates who had contested the election in the particular constituency are required to be made respondents. In the present case, the election petitioner and the respondent were the only two parties. Declaration is being sought that election of the respondent is void. Therefore it is only the respondent who has to be made party to the proceeding. Question of making the Returning Officer a respondent in the election petition does not arise. Regarding the other objection raised by the respondent, learned senior counsel for the election petitioner submits that the election petitioner has alleged violation of Section 37 of the Act which lays down the procedure for withdrawal of candidature. This is a valid ground of challenging the election of the returned candidate under Section 100(1)(d)(iv) of the Act. How the result of the elected candidate has been materially affected would depend from case to case. This is a valid ground of challenging the election of the returned candidate under Section 100(1)(d)(iv) of the Act. How the result of the elected candidate has been materially affected would depend from case to case. In the present case, since there were only two candidates, obviously the alleged withdrawal of the candidature of the election petitioner has materially affected the outcome of the election as it led to unopposed election of the respondent without voting. To explain the import of the expression " materially affected" as appearing in Section 100(1)(d) of the Act, learned senior counsel has placed reliance on a decision of the Apex Court in the case of Durai Muthuswami v. N. Nachiapan reported in (1973) 2 SCC 45 . He further submits that sub-section (2) of Section 100 will come into play only when the election petitioner alleges corrupt practice by the returned candidate or by his agent. Since no corrupt practice has been alleged in the present case, question of sub-section (2) overriding sub-section (1) of Section 100 does not arise. In a case of this nature where the challenge to the election of the returned candidate is on the ground of violation of statutory provision, sub-section (2) of Section 100 of the Act would have to be excluded altogether. He submits that the decision in Mangani Lal Mandal (supra) has been placed out of context. Rather, the said decision supports the case of the election petitioner. The other judgment in Ram Sukh (supra) is not applicable to the facts of the present case as the said judgment was delivered in a different factual context He therefore submits that the miscellaneous application is misconceived and should be dismissed. 11. I have heard the submissions made by learned counsel for the parties. On due consideration, I am of the considered view that the miscellaneous application filed by the respondent is misconceived and deserves dismissal for the following reasons. 12. A reading of Section 81 of the Act shows that an election petition may be presented to the High Court on one or more of the grounds specified in sub-section (1) of Section 100 and Section 101 of the Act. While Section 100 enumerates the grounds for declaring an election to be void, Section 101 lays down the grounds for which a candidate other than the returned candidate may be declared to have been elected. While Section 100 enumerates the grounds for declaring an election to be void, Section 101 lays down the grounds for which a candidate other than the returned candidate may be declared to have been elected. In the present case, Section 101 would not be relevant as the ejection petitioner has not sought for a declaration that he be declared as elected. Therefore, in this case, only Section 100 of the Act would be relevant. 13. Before coming to Section 100, it would be apposite to refer to a few more relevant provisions of the Act. 14. Under Section 82, if the election petitioner seeks a declaration that the election of the returned candidate is void, then the returned candidate is to be made a respondent in the election petition. But if in addition to such declaration, the election petitioner seeks a further declaration that he be declared as duly elected, all the contesting candidates including the returned candidate would have to be joined as respondents. The Election Commission or for that matter the Returning Officer need not be made respondent in an election petition. This has been settled by the Apex Court long back in the case of Jyoti Basu v. Debi Ghosal reported in AIR 1982 SC 983 . 15. Section 83 of the Act deals with the contents of an election petition Sub-section (1) says that an election petition shall contain a concise statement of the material facts on which the petitioner relies. It also provides that if any corrupt practice is alleged by the election petitioner he shall have to set-forth full particulars of such corrupt practice. Thus, under Section 83 of the Act, an election petition shall contain a concise statement of the material facts on which the election petitioner relies. The phrase "material facts" is neither defined in the Act nor in the Civil Procedure Code. It has been understood by the Courts in general terms to mean the entire bundle of facts which would constitute a complete cause of action; "material facts" are facts upon which the plaintiff's cause of action or defendant's defence depends. All basic or primary facts which must be proved at the trial for establishing cause of action or defence, are material facts which, would, however, depend on facts of each case. 16. Having noticed the above, Section 100 may now be adverted to. Section 100 reads as under:-- "100. All basic or primary facts which must be proved at the trial for establishing cause of action or defence, are material facts which, would, however, depend on facts of each case. 16. Having noticed the above, Section 100 may now be adverted to. Section 100 reads as under:-- "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; 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 (d) that the result of the election, insofar 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; ********* (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 form 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." 17. Sub-section (1) of Section 100 lays down the grounds for declaring the election of the returned candidate as void. As already mentioned at the very beginning, election petitioner has challenged the election of the respondent under Section 100(1)(d)(iv) of the Act for non-compliance with a provision of the Act i.e. Section 37. Though sub-section (1) is couched in the language that the said sub-section is subject to sub-section (2), a minute reading of the two sub-sections would reveal a subtle yet significant difference. It is only when election petitioner alleges corrupt practice and urges the grounds under Section 100(1)(b) or 100(1)(d)(ii) that sub-section (2) would come into play. What sub-section (2) says is that even if the High Court is of the opinion that there was corrupt practice which materially affected the election of the returned candidate, the High Court can still save the election of the returned candidate if in the opinion of the High Court the corrupt practice was indulged in without the consent of the candidate or his election agent or contrary to the Orders of the returned candidate or his election agent. Therefore, sub-section (2) is basically a saving clause to save the election of a returned candidate even it is proved that there was corrupt practice on behalf of the returned candidate provided the High Court is satisfied that such corrupt practice was committed by an agent other than the election agent without the" consent or contrary to orders of the returned candidate or his election agent. In a case which is not based on allegation of corrupt practice, provisions contained in sub-section (2) will not come into play. Therefore, learned counsel for the election petitioner is right in contending that in such a scenario sub-section (2) of Section 100 would stand excluded altogether. 18. The last limb of argument of Mr. Kashyap is that the election petitioner has not only to plead violation of any statutory provision but in addition, has also to plead that such violation materially affected the election of the returned candidate. In my understanding, this proposition would have to be examined in the context of the basic facts of each case. No straight jacket formula can be laid down in this regard. In my understanding, this proposition would have to be examined in the context of the basic facts of each case. No straight jacket formula can be laid down in this regard. In the election petition, the following are the relevant paragraphs in support of the contention of the election petitioner that the election of the respondent should be declared void under Section 100(1)(d)(iv) of the Act: "27. That in the present case, purported withdrawal of petitioner's candidature from 12-Pakke-Kessang (ST) Legislative Assembly Constituency is in violation of Section 37 Sub-Section (1) of the Representation of People Act, 1951. Moreover, the Returning Officer did not follow the mandate of Sub-Section (3) of Section 37 while accepting the purported withdrawal of petitioner's candidature from 12- Pakke-Kessang (ST) Legislative Assembly Constituency. 28. That since the petitioner did not write any notice for withdrawal of his candidature from 12-Pakke-Kessang (ST) Legislative Assembly Constituency nor did he authorize either his election agent Sri Utung Welly or his proposer Sri Ravindra Tana for withdrawal of his candidature, there has been no withdrawal of petitioner's candidature from 12-Pakke-Kessang (ST)Legislative Assembly Constituency within the meaning of Section 37(1) of the Representation of People Act, 1951 and as such, acceptance of purported withdrawal of petitioner's candidature from 12-Pakke-Kessang (ST) Legislative Assembly Constituency by the Returning Officer of 12-Pakke-Kessang (ST) Legislative Assembly Constituency, is not tenable and is in violation of Section 37(1) of the Representation of People Act, 1951. 29. That no notice as envisaged under Rule 9(1) of the Conduct of Election Rules, 1961 was ever signed, made or instructed to be made by the election petitioner. It is, therefore, stated that the petitioner did not issue any notice of withdrawal of his candidature from 12-Pakke-Kessang (ST) Legislative Assembly Constituency within the meaning of Rule 9(1) of the Conduct of Election Rules, 1961 and as such acceptance of purported notice of withdrawal allegedly delivered by the so called authorized representative of the petitioner, is not tenable in law and is ab-initio void. 30. That the illegal acceptance of purported withdrawal of petitioner's candidature has materially affected the result of the election in 12-Pakke-Kessang (ST) Legislative Assembly Constituency under Section 100(1)(d)(iv) of the Representation of People Act, 1951 and as such, the unopposed election of the respondent from the 12-Pakke-Kessang (ST) Legislative Assembly Constituency has been rendered void. 31. 30. That the illegal acceptance of purported withdrawal of petitioner's candidature has materially affected the result of the election in 12-Pakke-Kessang (ST) Legislative Assembly Constituency under Section 100(1)(d)(iv) of the Representation of People Act, 1951 and as such, the unopposed election of the respondent from the 12-Pakke-Kessang (ST) Legislative Assembly Constituency has been rendered void. 31. That on the facts and grounds stated above, the Hon'ble Court may be pleased to declare the election of the respondent from 12-Pakke-Kessang (ST) Legislative Assembly Constituency to be void under Section 100(1)(d)(iv) of the Representation of People Act, 1951." 19. From a reading of the above, it is quite evident that the election petitioner has not only pleaded violation of statutory provision but has also pleaded that such violation has materially affected the result of the election. Thus, the election petitioner has complied with the requirement of Section 83(1)(a) of the Act. 20. In a case of this nature where there were only two candidates in the fray, it is obvious that withdrawal of the candidature of the petitioner has materially affected the election in as much as the respondent stood automatically elected unopposed. Both the decisions in Mangani Lal Mandal (supra) and Ram Sukh (supra) would not be applicable in a case of this nature. At this stage, relevant portion of the decision of the Apex Court in Durai Muthuswami (supra) may be quoted hereunder:-- "3................................. Therefore, what Section 100 requires is that the High Court before it declares the election of a returned candidate is void should be of opinion that the result of the election insofar as it concerns a returned candidate has been materially affected by the improper acceptance of any nomination. Under Section 83 all that was necessary was a concise statement of the material facts on which the petitioner relies. That the appellant in this case has done. He has also stated that the election is void because of the improper acceptance of the 1st respondent's nomination and the facts given showed that the 1st respondent was suffering from a disqualification which will fall under Section 9A. That was why it was called improper acceptance. That the appellant in this case has done. He has also stated that the election is void because of the improper acceptance of the 1st respondent's nomination and the facts given showed that the 1st respondent was suffering from a disqualification which will fall under Section 9A. That was why it was called improper acceptance. We do not consider that in the circumstances of this case it was necessary for the petitioner to have also further alleged that the result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of the 1st respondent's nomination. That is the obvious conclusion to be drawn from the circumstances of this case. There was only one seat to be filled and there were only two contesting candidates. If the allegation that the 1st respondent's nomination has been improperly accepted is accepted the conclusion that would follow is that the appellant would have been elected as he was the only candidate validly nominated. There can be, therefore, no dispute that the result of the election insofar as it concerns the returned candidate has been materially affected by the improper acceptance of his nomination because but for such improper acceptance he would not have been able to stand for the election or be declared to be elected. * * * * * * * * * * * * It is not intended to provide a convenient technical plea in a case like this where there can be no dispute at all about the election being materially affected by the acceptance of the improper nomination. "Materially affected" is not a formula that has got to be specified but it is an essential requirement that is contemplated in this section. Law does not contemplate a mere repetition of a formula. The learned Judge has failed to notice the distinction between a ground on which an election can be declared to be void and the allegations that are necessary in an election petition in respect of such a ground. The petitioner had stated the ground on which the 1st respondent's election should be declared to be void. He had also given the material facts as required under Section 83(1)(a). The petitioner had stated the ground on which the 1st respondent's election should be declared to be void. He had also given the material facts as required under Section 83(1)(a). We are, therefore, of opinion that the learned Judge erred in holding that it was not competent for him to go into the question whether the 1st respondent's nomination had been improperly accepted." The above decision is a clear answer to the third objection raised by the applicant/respondent. For the aforesaid reasons, this Court finds no merit in the miscellaneous application filed by the respondent which is accordingly dismissed. No cost. Application dismissed.