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2018 DIGILAW 7 (MAN)

Nahakpam Indrajit Singh v. Md. Amin Shah

2018-04-02

K.H.NOBIN SINGH

body2018
JUDGMENT : K.H. NOBIN SINGH, J. 1. Heard Shri M. Devananda, the learned Advocate assisted by Shri Ph. Sanajaoba, the learned counsel appearing for the applicant/respondent No. 1 and Shri S. Biswajit Meitei, the learned counsel appearing for the respondent No. 1/petitioner. 2.1 The instant application has been filed by the applicant/respondent No. 1 in the above Election Petition being E.P. No. 9 of 2017 raising an issue as regards the maintainability of the said Election Petition filed by the respondent No. 1/petitioner on the inter-alia ground that the respondent No. 1/petitioner has not approached this court with clean hands to ventilate his grievances, rather by way of swearing a false affidavit and therefore, the said election petition is liable to be dismissed in limine. 2.2 According to the applicant/respondent No. 1, the respondent No. 1/petitioner in his election petition, has reproduced a list of contesting candidates wherein the candidate appearing at S. No. 7 namely, Shri Vivekraj Wangkhem's party affiliation is stated to be NPP. However, when the respondent No. 1/petitioner reproduced the votes secured by each and every candidate, the party affiliation of the said Shri Vivekraj Wangkhem was shown to be NPF and an affidavit in support thereof and sworn to by the respondent No. 1/petitioner has been filed without application of mind. Thus, the respondent No. 1/petitioner has deliberately made a false statement in the election petition so as to harass the applicant/respondent No. 1 and accordingly, the instant application has been filed by the applicant/respondent No. 1 praying for dismissal of the election petition. 3. A written objection has been filed by the respondent No. 1/petitioner wherein the allegations made in the application have been denied and it has been submitted that the alleged false statement is a typographical error or a printing mistake or a clerical error due to the inadvertence on the part of the Junior Advocate which can be corrected by way of an amendment. 4. 4. During the course of hearing, Shri M. Devananda, the learned counsel appearing for the applicant/respondent No. 1 has submitted that the respondent No. 1/petitioner has made a false statement, because of which the election petition is liable to be dismissed and in support thereof, he has placed reliance on the decisions rendered by the Hon'ble Supreme Court and the Hon'ble Gauhati High Court in R.P. Moidutty vs. PT Kunju Mohammad and Another, (2000) 1 SCC 481 , Ravinder Singh vs. Janmeja Singh and Others, (2000) 8 SCC 191 , Ram Sukh vs. Dinesh Aggarwal, (2009) 10 SCC 541 and Sri T. Phungzathang vs. Shri Hangkhanlian, AIR 2001 Gauhati 52. On the other hand, Shri S. Biswajit Meitei, the learned counsel appearing for the respondent No. 1/petitioner has submitted that it was not a wrong affidavit but was only a clerical mistake in the election petition which causes no serious consequences and in other words, the issue whether the mistake was a clerical mistake or not, is to be seen in the context of the substance involved therein. He has relied upon the decision of the Hon'ble Supreme Court in Mithlesh Kumar Pandey vs. Baidyanath Yadav and Others, (1984) 2 SCC 1 wherein the issue was as to whether the election petition, a copy of which contained a large number of mistakes in respect of the persons through whom corrupt practices were alleged to have been practiced during the election, was liable to be dismissed on the ground that the mandatory provisions of Section 81(3) of the Act have not been followed. The Hon'ble Supreme Court was unable to agree with the High Court that the mistakes in the copy were either verbal, typographical or clerical and accordingly, allowed the appeal. 5. The facts of the case, in short, as narrated in the petition which have led to the filing of the present application, are that pursuant to a notification dated 07-02-2017 issued by the Election Commission of India (hereinafter referred to as “the ECI”), the election to the 11th Manipur Legislative Assembly was held on 04-03-2017 and the applicant/respondent No. 1 was declared elected as a member of the Manipur Legislative Assembly from Kshetrigao Assembly Constituency. In other words, the applicant/respondent No. 1 has won the election by a margin of 380 votes. In other words, the applicant/respondent No. 1 has won the election by a margin of 380 votes. Being aggrieved by the said election, the above election petition has been filed by the respondent No. 1/petitioner on the ground that in the affidavit filed by the applicant/respondent No. 1 along with the nomination paper, he has failed to furnish information as regards the case under FIR No. 77(3)2013 City PS u/S. 38, 39, 40 UA (P) Act and 384/120-B IPC being registered against him; the details of his children; the details of his properties; the details of the dependents and has left many of the columns in the affidavit blank. The respondent No. 1/petitioner, while narrating the facts of the case at para 4.3 of the petition and in particular, in the tabulation showing the list of contesting candidates, has stated Shri Vivekraj Wangkhem to be the candidate of the National Peoples Party (NPP) while at para 4.4 of the petition which enumerated the candidates with the votes secured by them, Shri Vivekraj Wangkhem has been shown to be the candidate of NPF. 6. On the basis of various decisions rendered by the Hon'ble Supreme Court relating to election, the election petitions filed under the provisions of Section 80 of the Act can be broadly categorised into two-one, an election petition filed on the ground of corrupt practice and two, an election petition filed on the ground that the result of the election has been affected by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under the Act. Section 83(1)(a) which mandates that an election petition shall contain a concise statement of material facts, is common for both the categories of election petitions. So far as the first category is concerned, Section 83(1)(b) provides that the election petition shall set out full particulars of corrupt practice. Many of the cases in which election petitions have been filed, fall under the first category and the allegations are mainly against the returned candidate. That is the reason why the concise statement of material facts has become inevitable so that the returned candidate can understand the charge levelled against him and meet the same in his/her defence. Many of the cases in which election petitions have been filed, fall under the first category and the allegations are mainly against the returned candidate. That is the reason why the concise statement of material facts has become inevitable so that the returned candidate can understand the charge levelled against him and meet the same in his/her defence. The requirement of setting out full particulars of corrupt practice is not there in respect of the second category for the simple reason that the corrupt practice is not the ground on which the election petition has been filed. Since the present election petition has not been filed on the ground of corrupt practice, the same will definitely fall under the second category because the only allegation is that while filing the nomination, the applicant/respondent No. 1 has failed to furnish information in the affidavit as required under the relevant rules. The question of requirement of setting out full particulars of corrupt practice does not arise at all in the present case and the issue involved in the election petition is to be decided only by examining the affidavit filed along with the nomination paper with reference to the relevant rules and the evidences adduced in respect thereof by the parties. 7. It is not in dispute that the respondent No. 1/petitioner has committed the aforesaid error while narrating the facts in the petition as regards the party affiliation of Shri Vivekraj Wangkhem. According to the respondent No. 1/petitioner, the said error is a typographical error which is not substantial at all, while it has been submitted by the applicant/respondent No. 1 that it is a false statement along with an affidavit in support thereof which will attract the provisions of Section 83 of the Act. Therefore, the short question that arises for consideration by this court is as to whether the error is a typographical error or a false statement on the basis of which the election petition is liable to be dismissed in limine. Therefore, the short question that arises for consideration by this court is as to whether the error is a typographical error or a false statement on the basis of which the election petition is liable to be dismissed in limine. Having regard to the facts as narrated hereinabove and the grounds on which the validity and correctness of the election being challenged, the contention of the learned counsel appearing for the respondent No. 1/petitioner appears to be correct for the reason that the issue as to whether the party affiliation of Shri Vivekraj Wangkhem is NPP or NPF is not the subject matter in issue in the election petition and in other words, it is not the ground on which the election has been challenged by the respondent No. 1/petitioner. The mistake appears to be nothing but a typographical error. It will make no difference whether the party affiliation of Shri Vivekraj Wangkhem is NPP or NPF when the issue involved in the election petition is decided on merit and it will not be appropriate to dismiss the election petition as not maintainable only on this count. The decisions relied upon by both the counsel appearing for the parties will have no application in the present case for the reason that the facts of those cases are not similar to that of the present case. In those cases, the election petitions have been filed questioning the elections primarily on the ground of allegation of corrupt practice and in addition thereto, one of the issues was as to whether the copies of the petition furnished to the respondents therein were true copies of the petition or not. The issues involved therein are not there in the present case. Therefore, the details of the said decisions are not referred to herein. Even assuming for the sake of argument that the respondent No. 1/petitioner has made a false statement as regards the party affiliation of Shri Vivekraj Wangkhem to be NPF, it will have no bearing at all while deciding the issue involved in the election petition and in other words, the question whether the party affiliation of Shri Vivekraj Wangkhem is NPP or NPF which is of no consequence, will not be considered at all. The respondent No. 1/petitioner will get nothing beneficial to him by stating that the party affiliation of Shri Vivekraj Wangkhem is NPF. The respondent No. 1/petitioner will get nothing beneficial to him by stating that the party affiliation of Shri Vivekraj Wangkhem is NPF. The error/mistake committed by the respondent No. 1/petitioner is not vital which can go to the root of the case and therefore, it can at the most be said to be a typographical or a minor mistake which can be cured by way of an amendment. Considering the materials on record and having heard the learned counsels appearing for the parties, this Court is of the view that the application is devoid of any merit and is accordingly, liable to be dismissed. 8. In view of the above and for the reasons stated hereinabove, the application being M.C. (El. Petn.) No. 2 of 2017 is rejected.