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2018 DIGILAW 1121 (GAU)

L. LAWMKIMA v. STATE ELECTION COMMISSION

2018-07-30

ACHINTYA MALLA BUJOR BARUA, SUMAN SHYAM

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JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. B. Lalramenga, learned counsel appearing for the appellant in W.A. No. 04/2017. Also heard Mr. A.R. Malhotra, learned counsel for the appellant in W.A. No. 4/2018. Mr. F. Lalengliana, learned counsel has appeared for the private respondent (writ petitioner) in both these appeals. 2. These intra-court appeals are directed against the judgment and order dated 06-05-2016 passed by the learned Single Judge in W.P.(C) No. 66/2016 preferred by the private respondent as writ petitioner directing the State Election Commission, i.e. the appellant in W.A. No. 04/2018 to take a decision on the question of maintainability of the election petition filed by him. In both these appeals, common questions of fact and law are involved, hence, we propose to dispose of both the appeals by this common order. 3. The facts of the case, briefly stated, are that respondent/ writ petitioner viz. Sri Michael Dl Kompa had contested the 10th General Election of the Lai Autonomous District Council (LADC) held on 26-11-2015 from the 4-Cheural Constituency as a candidate sponsored by the Mizo National Front (MNF).The appellant in W.A. No. 4/2017, viz. Sri L. Lawmkima was the other candidate who had contested the election from the said constituency as a Indian National Congress candidate. The results of the election was declared on 28-11-2015 whereby, the appellant Sri L. Lawmkima was declared to have won the election from the 4-Cheural Constituency by defeating his rival Sri Michael Dl Kompa by a margin of one vote. Being aggrieved by the election result, the private respondent Sri Michael Dl Kompa had approached the State Election Commission, Mizoram by filing an election petition on 01-12-2015 under the provision of Section 192 of the Lai Autonomous District Council (Constitution, Conduct of Business, Etc.) Rules, 2010 (in short Rules of 2010) calling in question, the election of the returned candidate Sri L. Lawmkima alleging mal- practices in the electoral process. On receipt of the election petition, the State Election Commission had issued a notification on 09-12-2015 under Rule 196 of the Rules of 2010 appointing Smti. Marli Vankung, i.e. the District and Sessions Judge, Lunglei Judicial District as the Commissioner for hearing and disposing of the election petition. Accordingly, the election petition was admitted and notice was issued to the returned candidate fixing the next date on 05-02-2016. Marli Vankung, i.e. the District and Sessions Judge, Lunglei Judicial District as the Commissioner for hearing and disposing of the election petition. Accordingly, the election petition was admitted and notice was issued to the returned candidate fixing the next date on 05-02-2016. On receipt of notice in connection with the said proceeding, the appellant Sri L. Lawmkima i.e the returned candidate, had filed an application under RTI, 2005 where-from he could learn that the election petitioner had not deposited the security deposit of an amount of Rs. 100/- by means of Govt. Treasury Challan. The said fact having been pointed out, the Secretary of the State Election Commission had issued the order dated 16-02-2016 dismissing the election petition by invoking powers under Rule 195 of the Rules of 2010 (as amended). Aggrieved thereby, the election petitioner had approached this Court by filing W.P.(C) No. 66/2016 which was disposed of by the impugned judgment and order dated 06-05-2016.The returned candidate has preferred Writ Appeal No. 4/2017 assailing the judgment and order dated 06-05-2017 passed by the learned Single Judge. The State Election Commission has also assailed the order dated 06-05-2017 by filing Writ Appeal No. 4/2018. 4. Mr. B. Lalramenga, learned counsel for the appellant in W.A. No. 212/2016 submits that the election of a member of the District Council can only be called in question by filing an election petition as per Rule 191 of the Rules of 2010, within a period of 60 days from the date on which the result of the election is published in the Official Gazette. The learned counsel contends that unless the election petition is accompanied by a Govt. Treasury Challan of Rs. 100/-, as required by Rule 194, the same shall have to be dismissed. In the present case, submits Mr. Lalramenga, although the State Election Commission had initially accepted the election petition presented without the Govt. Treasury Challan of Rs. 100/-, yet, subsequently, the said anomaly having been pointed out, the Commission had rightly dismissed the election petition, since the period of 60 days from the date of publication of the result in the Official Gazette had already expired on the date on which the election petitioner had submitted the Govt. Treasury Challan of Rs. 100/-. As such, submits Mr. 100/-, yet, subsequently, the said anomaly having been pointed out, the Commission had rightly dismissed the election petition, since the period of 60 days from the date of publication of the result in the Official Gazette had already expired on the date on which the election petitioner had submitted the Govt. Treasury Challan of Rs. 100/-. As such, submits Mr. Lalramenga, the direction issued by the judgment and order under appeal directing the State Election Commission to re-consider the matter and take a decision on the question of maintainability of the election petition was clearly unsustainable in law since there was no scope for the State Election Commission to review its earlier order dated 16-02-2016 in the facts and circumstances of the case. 5. Joining issues, Mr. A.R. Malhotra, learned counsel appearing for the State Election Commission, i.e. the appellant in W.A. No. 04/2018, contends that the provision of Rule 194 being mandatory in nature, the State Election Commission was obliged under Rule 195 to dismiss the election petition without any further hearing due to non-submission of Govt. Treasury Challan of Rs. 100/-. By referring to the decision of the Supreme Court in the case of P.A. Mohammed Riyas Vs. M.K. Raghavan & Ors., (2012) 5 SCC 511 , Mr. Malhotra submits that non-compliance of Section 83(1) of the Representation of Peoples Act of 1951 would entail dismissal of an election petition filed under the Act of 1951 at the threshold and Rule 195 of the Rules of 2010 would also have a similar effect in this case. Learned counsel, therefore, submits that the ratio of the decision in the case of P.A. Mohammed Riyas would be squarely applicable to the facts of the present case. 6. Mr. F. Lalengliana, learned counsel for the respondent/ writ petitioner, on the other hand, contends that his client had deposited the Treasury Challan on 17-02- 2016 but the same was not accepted by the State Election Commission. Mr. Lalengliana has, however, not denied the fact that the election petition was filed on 01-12-2015 without depositing the Govt. Treasury Challan of Rs. 100/- or annexing a copy of the Treasury Challan along with the election petition. 7. We have bestowed our anxious consideration on the arguments advanced by the learned counsel for the parties and have also meticulously gone through the materials available on record. Treasury Challan of Rs. 100/- or annexing a copy of the Treasury Challan along with the election petition. 7. We have bestowed our anxious consideration on the arguments advanced by the learned counsel for the parties and have also meticulously gone through the materials available on record. The undisputed facts in the present proceedings are that having suffered defeat in the election held on 26-11-2015 the respondent/ writ petitioner had preferred an election petition on 01-12-2015 before the State Election Commission under the provision of Rule 192 of the Rules of 2010. However, the election petition was admittedly not accompanied by a copy of the Govt. Treasury Challan as per requirement of Rule 194. The election petition was, therefore, not free from defect on the date of filing the same. The core controversy in these appeals revolves around the question as to whether, on the expiry of the period of 60 days as stipulated by Rule 192(1)(a) read with Rule 195 of the Rules of 2010, can the election petitioner be permitted to cure the defect in the election petition. 8. We find from the record that on 16-02-2016, the Secretary of the State Election Commission, Mizoram, Aizawl had issued a letter to the Commissioner of Enquiry appointed in this case, thereby intimating that the election petition was filed without enclosing the Govt. Treasury Challan showing the deposit of Rs. 100/- and therefore, the same has been dismissed without further hearing. On 17-02-2016, the election petitioner/ respondent had deposited an amount of Rs. 100/- in the Govt. Treasury and thereafter, forwarded the same to the State Election Commission by the forwarding letter dated 17-02-2016 but the same was not accepted by the Commission on the ground that the time period provided by the Rules of 2010 had already elapsed for submission of Govt. Treasury Challan. Since the adjudication of the disputed issues raised in these appeals would call for interpretation of the relevant provisions of Rules of 2010, hence, for the sake of convenience, Rules 191 to 195 are quoted herein below for ready reference: "Election petition: 191. Save as provided in rule 11 or in rule 145 no election shall be called in question except by an election petition resented in accordance with the provisions of the succeeding rules. Presentation of election petition: 192. Save as provided in rule 11 or in rule 145 no election shall be called in question except by an election petition resented in accordance with the provisions of the succeeding rules. Presentation of election petition: 192. (1) An election petition against any returned candidate may be presented to the State Election Commission. (a) by any candidate or elector on any of the grounds specified in sub-rule (2), within sixty days from the date on which result of the election is published in the Official Gazette; Explanation :- In this sub-rule. "elector" means a person who was entitled to vote at the election petition relates, whether he has voted at such election or not. (2) The petitioner may, if he so desires, in addition to calling in question the election of the returned candidate, claim for a declaration that he himself has been duly elected, but such declaration shall only be claimed on one or other of the following grounds:- (a) that in fact the petitioner received majority of the valid votes; or (b) that, but for votes obtained for the returned candidate by corrupt or illegal practices, the petitioner would have obtained a majority of the valid votes. (c) that the returned candidate was disqualified for being elected as such member. (3) An election petition shall be deemed to have been presented to the State Election Commission when it is delivered to the Secretary, State Election Commission- (a) by the person making the petition; or (b) by the person authorized in writing in this behalf by the person making the petition, or (c) by registered post. Contention of election petition: 193. (1) Every such petition shall contain a statement in materials facts on which the petitioner relies and shall be signed by the petitioner. (2) Every such petition shall be accompanied by a list signed by the petitioner setting forth full particulars of any corrupt or illegal practice which the petitioner has alleged, including as full statement as possible of the names and address of parties alleged to have been committed by the Commission of each such practice. Deposit of security: 194. At the time of presentation of the election petition the petitioner shall enclose with the petition a copy of the Govt. Treasury Challan showing the deposit of Rs. 100/- Rupees one hundred) only as security deposit towards the cost of the petition. Deposit of security: 194. At the time of presentation of the election petition the petitioner shall enclose with the petition a copy of the Govt. Treasury Challan showing the deposit of Rs. 100/- Rupees one hundred) only as security deposit towards the cost of the petition. Petition when to be dismissed: 195. If the provisions of Rules 191,192, 192 and 194 are not complied with, the "State Election Commission shall dismiss the petition without further hearing." 9. The Lai Autonomous District Council (Constitution, Conduct of Business Etc.) Rules, 2010 have been framed in pursuance of paragraph 11 of the Sixth Schedule to the Constitution of India and the Rules so framed had received the assent of the Governor of Mizoram on 20-10-2010. The Rules were thereafter, published in the Mizoram Extra Ordinary Gazette on 25-10-2010. Therefore, there can be no doubt about the fact that the Rules of 2010 would have the force of a statute. 10. From a careful reading of the provisions of the Rules of 2010, it is apparent that an election petition calling in question the validity of the election of a member of the District Council can be made, only by filing an election petition in accordance with the provision of Rule 192 contained in Chapter XX of the Rules of 2010. Rule 192 makes it clear that the election petition must be presented within 60 days from the date on which the result of the election is published in the Official Gazatte. As per Rule 194, an election petition must be accompanied by a Govt. Treasury Challan showing the deposit of Rs. 100/-. Rule 195 of the Rules of 2010 provides that if the provisions of any of the Rules from 191 to 194 are not complied with, then the State Election Commission shall dismiss the petition without further hearing. 11. While interpreting the word 'shall' the Supreme Court in the case of Union of India Vs. A.K. Pandey, (2009) 10 SCC 552 has observed that if the word 'shall' is followed by negative or prohibitive word then the same would ordinarily be indicative of mandatory provision. The observation made in paragraph 15 would be relevant and therefore, is reproduced herein below for ready reference: "15. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The observation made in paragraph 15 would be relevant and therefore, is reproduced herein below for ready reference: "15. The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a negative form ordinarily has to be read in the form of command. When the word "shall" is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such. There being nothing in the context otherwise, in our judgment, there has to be clear ninety-six hours interval between the accused being charged for which he is to be tried and his arraignment and interval time in Rule 34 must be read absolute. There is a purpose behind this provision: that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. He may even decide not to defend the charge(s) but before he decides his line of action, he must be given clear ninety-six hours." 12. In the case of Ram Deen Maurya (Dr.) Vs State of U.P., (2009) 6 SCC 735 , it has been observed that a mandatory statute must be construed strictly and any act done in contravention thereof would be invalid. The observation made by the Apex Court in paragraph 43 of the said decision are quoted herein below: "43. To answer this issue, it is necessary to find out, whether the Rule is directory or mandatory. If it is mandatory, then it is settled rule of interpretation, it must be strictly construed and followed and an act done in breach thereof will be invalid. But if it is directory, the act will be valid although the non-compliance may give rise to some other penalty if provided by the statue. If it is mandatory, then it is settled rule of interpretation, it must be strictly construed and followed and an act done in breach thereof will be invalid. But if it is directory, the act will be valid although the non-compliance may give rise to some other penalty if provided by the statue. It is often said that a mandatory enactment must be obeyed or fulfilled exactly, but, a directory provision non-compliance with it, has been held in many cases as not affecting the validity of the act done in breach thereof." 13. In the present case, the usage of the expression 'shall' in Rule 195 followed by the direction to dismiss the election petition without further hearing, in our considered opinion, un-equivocally goes to show that there is a command upon the Election Commission to dismiss an election petition which does not comply with the provisions of Rules 191, 192, 193 and 194. A conjoint reading of Rules 194 and 195 of the Rules of 2010, therefore, leaves no room for doubt that the said provisions are mandatory in nature and therefore, cannot be waived by the State Election Commission. 14. In the context of trial of election petitions filed under the provision of the Representation of Peoples Act, 1951, a Constitution Bench of the Hon'ble Supreme Court in the case of K.V. Rao Vs. B.N. Reddi, (1969) AIR SC 872 has held that an election petition stands on a different footing and the trial of such a petition and the power of the courts are circumscribed by the provisions of the Act. 15. In the case of P.A. Mohammed Riyas , the Apex Court had upheld the order passed by the High Court dismissing the election petition filed under the Representation of Peoples Act, 1951 by allowing the plea of maintainability raised by the returned candidate. In that case, a plea was raised by the returned candidate that the election petition was incomplete since it did not contain the requisite affidavit in Form 25 as required under the proviso to Section 83(1) of the Act of 1951 read with Rule 94-A of the Conduct of Election Rules, 1961. In that case, a plea was raised by the returned candidate that the election petition was incomplete since it did not contain the requisite affidavit in Form 25 as required under the proviso to Section 83(1) of the Act of 1951 read with Rule 94-A of the Conduct of Election Rules, 1961. The Act of 1951, it must be noted, contains a similar provision in the form of Section 86 which mandates the dismissal of an election petition in limini if the same does not comply with the requirement of Sections 81 or Section 82 or Section 117 of the Act of 1951. While affirming the order of dismissal of the election petition, the Supreme Court has observed that the failure to comply with the provision of Section 83(1) of the Act of 1951 renders the election petition in-effective and, hence, can be dismissed at the thresh-hold. From a careful examination of the relevant provisions of the Act of 1951, we are of the view that the ratio of the decision rendered in the case of P.A. Mohammed Riyas would be applicable to the facts and circumstances of this case. 16. We have already held that the provisions of Rules 194 and 195 of the Rules are mandatory in nature. Therefore, the aforesaid provisions would require strict construction. In this case, the results of the election was notified in the Official Gazette on 17-12-2015 and therefore, having regard to the provision of Rule 192(1)(a) of the Rules of 2010, it was open for the election petitioner to supply the Treasury Challan and cure the defect before the expiry of 60 days there-from, i.e. within 15-02-2016, which was admittedly not done in this case. A defective election petition has to be treated as incomplete and the same would only be complete after the removal of the defect. But as noted above, permitting the petitioner to cure the defect after the expiry of 60 days from the date of publication of the results in the Official Gazette would amount to enlarging the period of limitation for filing the election petition, as prescribed by the statute. But as noted above, permitting the petitioner to cure the defect after the expiry of 60 days from the date of publication of the results in the Official Gazette would amount to enlarging the period of limitation for filing the election petition, as prescribed by the statute. It is not in dispute that there is no provision in the Rules of 2010 permitting the State Election Commission to extend the period of limitation for presenting an election petition and hence, the law of limitation, as prescribed by the statute, has to be applied in all its vigour. For the reasons stated hereinabove, we are of the view that there is no scope for the State Election Commission to consider the case of the election petition on the point of maintainability at this stage and therefore, the writ issued by the learned Single Judge by the judgment and order dated 06-05-2016 is a futile one. As such, the judgment and order dated 06-05-2016 is held to be unsustainable in the eye of law and the same is accordingly, set aside. The order of the State Election Commission dated 16-02-2016 is found to be valid and is hereby upheld. In the result both the writ appeals must succeed and accordingly stand allowed. Parties to bear their own cost.