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2019 DIGILAW 157 (GAU)

Namri Nchang v. Namduadi Rangkau Zeliang

2019-02-01

SONGKHUPCHUNG SERTO

body2019
JUDGMENT : S. SERTO, J. 1. By this combined judgment, the two I.As i.e I.A. (C) No. 117 (K) of 2018 and I.A (C) No. 128 (K) of 2018 which were heard together are being disposed of. Heard Mr. C.T.Jamir, learned senior counsel appearing for the applicant in both the IAs and also heard Mr. S. Dutta, learned senior counsel appearing for the respondent No.1.in both the IAs. None appears for the respondent No.2. This is an application filed by the respondent No.1 in Election Petition No. 2 (K) of 2018 pending before this Court praying for dismissal of the election petition. 2. The facts leading to the filing of this I.A may be briefly stated as follows; Following issuance of the Notification dated 31-01-2018, under Section 15 (2) of the Representation of People Act, 1951 by the Government of Nagaland calling upon all Assembly Constituencies of the State to elect members to the 13th Nagaland Legislative Assembly, the applicant and the respondents filed their nomination papers and contested the election from the 6th Tening Assembly Constituency. The applicant in this IA was nominee of Nationalist Democratic Progressive Alliance(hereinafter referred to as "NDPP") and the respondent No.1 was nominee of Nagaland People's Front (hereinafter referred to as " NPF") and the respondent No.2 was Independent candidate. The polling of No.6 Tening Assembly Constituency which has 26619 voters took place on 27- 02-2018. The Returning Officer of the Assembly Constituency vide his Notification NO. ELE/PRN/CAE/2018/1168, dated 25-02-2018 informed all the candidates that counting of the No.6 Tening Assembly Constituency will take place at 8:00 A.M of 03-03-2018 in the Conference Hall of Old D.C Office Building Peren. As notified counting for the No.6 Tening Assembly Constituency took place on 03-03-2018 in the presence of the counting agents of the applicant and the respondents. At the end of the counting, it was found that the respondent No.1 had secured 7050 votes whereas the applicant and the respondent No. 2 were found to have secured 7018 and 6476 votes respectively. Accordingly, the Returning Officer concerned issued the declaration under Form No. 21C and Form No. 21E of Conduct of Election Rules, 1961 thereby, declaring the respondent No.1 (election petitioner) elected. In the evening of the same day, the respondent No.1 was declared elected, a petition was submitted to the D.C, Peren by one Mr. Accordingly, the Returning Officer concerned issued the declaration under Form No. 21C and Form No. 21E of Conduct of Election Rules, 1961 thereby, declaring the respondent No.1 (election petitioner) elected. In the evening of the same day, the respondent No.1 was declared elected, a petition was submitted to the D.C, Peren by one Mr. Ziekuidi Zeliang, Presindent of NDPP, Peren Region praying for rechecking of the final total result sheet, EVM and VVPAT. The contents of the letter are as follows: "Nationalist Democratice Progressive Party Peren Region "Facta Non Verba" Regd.No.56/222/2017-17/PPS-1 Ref No..................... Dated 3.3.18 To, The Deputy Commissioner & District Election Officer Sub:- Prayer for recheck of final total result sheet, EVM and VVPAT Sir, With due respect I am to inform you that there has been an anomaly in the overall counting in polling station wise counting. We would, therefore, like to request you to kindly recheck the final voter total result sheet, EVM and VVPAT. Thanking you Copy to CEO Nagaland RO 6th Tening Sd/- Mr. Ziekuidi Zeliang President NDPP PEREN REGION" 3. Being aware of the development, the respondent No.1 sent a letter to the Chief Election Commissioner, Election Commission of India through the Chief Electoral Officer, Nagaland dated 03-03-2018. In the letter it was submitted that no recount or re-poll should be directed as he has been already declared elected and the Hon'ble Supreme Court of India in a number of cases had ruled against such. The contents of the letter are as follows:- "Kohima, 3rd March, 2018 To, The Chief Election Commissioner, Election Commission of India, Nirvachan Sadan, Ashok Road New Delhi 110 001 Thro The Chief Electoral Officer, Kohima: Nagaland Sir, I am given to understand that one Shri Ziekuidi Zeliang, President NDPP, Peren region has made a request for recounting of votes (prayer for recheck of final total result sheet, EVM pad and VVPAT) in Assembly Constituency 6-Tening, Nagaland, after I, N.R. Zeliang, a contesting candidate from the NPF party has been declared elected and return of election issued in favour of me today (3.3.2018). 2. 2. You are kindly aware that as per extant law and law laid down by the Hon'ble Supreme Court of India in a plethora of cases, no recount or re-poll or any other interference in the electoral process is possible once the return of election is used in favour of a candidate and all grievances shall have to be raised only in an election petition. 3. In view of the above, I shall be highly grateful to you, sir, if the complaint of Shri Ziekuidi Zeliang, as above, is disposed of in terms of the aforesaid law and the integrity of the election process is maintained. My certificate of election can only be challenged in an election petition. Grateful for this act of fine gesture. Yours sincerely, (N.R. ZELIANG) MLA (NPF) 13th Nagaland Legislative Assembly (6-Tening A/C)" 4. The Returning Officer of No.6 Tening Assembly Constituency submitted a report dated 03-03-2018 stating that there has been discrepancies in the counting in round number 4 in respect of No.6 Tening Assembly Constituency and that has led to erroneous entry of 824 votes in favour of the respondent No.1 instead of 624 and that has resulted in total cumulative vote difference in his favour by 155 votes. Further It was also stated that the actual votes polled by him should have been entered as 6814 instead of 7014. The report went on to state that the actual number of the votes in favour of the applicant NDPP candidate should be 6969 which means the number of votes casted in his favour was more than the number of votes casted in favor of the respondent No.1, and therefore, he ought to be declared as the returned candidate. At the end, the Returning Officer requested to suggest means to rectify the error. The contents of the report are as follows:- "Government of Nagaland Office of The Returning Officer 6-Tening Assembly Constituency NO.ELE/CAE-NP (6-TNG-AC) Dated 3rd March 2018 2018 Report There has been a discrepancy in counting in round number 4 with respect to 6-Teningrangkau A/C the total number of votes polled in favour of Shri Namduadi Zeliang should be 624 however it was erroneously entered as 824. This has resulted in total cumulative vote difference in favour of this particular candidate to be 155. The actual votes polled for him should have been 6814 however due to this error it was recorded as 7014. This has resulted in total cumulative vote difference in favour of this particular candidate to be 155. The actual votes polled for him should have been 6814 however due to this error it was recorded as 7014. The result of this constituency was declared in favour of Shri. Namdaudi Rangkau Zeliang. However, if the actual position is to be considered then the votes in favour of Shri Namri Nchang, NDPP candidate should be 6969 which means that Shri Naramri Nchang should be the returned candidate instead of Shri Namdaudi Zeliang. However, the results have been declared erroneously for this constituency in favour of Shri Namdaudi Rangkau Zeliang. We request you to kindly suggest a means to rectify our error. (Warren Holohon Yepthomi ) Returning Officer 6-Tening A/c" 5. The said report was forwarded by the Electoral Officer, Nagaland to the Election Commission of India vide his letter dated 03-03-2018. The contents of which is also given herein below:- "Office of The Chief Electoral Officer Nagaland: Kohima E-mail id: eco Nagaland@eci.gov.in/Fac-0370-2290460 NO.ELE/CDT-50/2018/ Dated: 3rd March, 2018 To, Shri Arvind Anand, Secretary, Election Commission of India, Nirvachan Sadan, Ashoka Road New Delhi- 110 001 Sub:- General Election to the Nagaland Legislative Assemblty, 2018-Report on discrepancy in counting in 6 Tening AC, Peren District-Regarding Sir, As Report has been received from Smti Smita Sarangi, Deputy Commissioner & District Election Officer, Peren that there has been a discrepancy made while counting in respect of 6-Tening AC (copy enclosed). 2. Shri Warren Holohon Yepthomi, the Returning Officer of 6-Tening AC after the conclusion of counting, declared Shri Namduadi Rangkaui Zeliang of NPF who had got 7050 votes as the winner. The candidate who came second, Shri Namri Nchang (NDPP) got 7018, which is 32 votes less than the winning candidate. After getting the authorization from the General Observer for 6-Tening AC, Shri Rajkumar Beniwai IAS (G-223099) for declaration of the result, the RO declared the result and prepared and handed over the following forms and certificates to Shri N.R. Zeliang. i. Form 21C ii. Form 21E iii. Form 22 3. Later after declaration of the result, the RO while going through the round wise tabulation sheet noticed that there was a discrepancy in tabulation. In round No. 4, the total number of votes polled in favour of Shri Namdaudi Rangkau Zeliang (NPF) should have been 624. However, it was entered as 824. Form 21E iii. Form 22 3. Later after declaration of the result, the RO while going through the round wise tabulation sheet noticed that there was a discrepancy in tabulation. In round No. 4, the total number of votes polled in favour of Shri Namdaudi Rangkau Zeliang (NPF) should have been 624. However, it was entered as 824. This resulted in Shri NR Zeliang getting erroneously an additional 200 votes in that round. The actual vote polled for Shri N.R. Zeliang should have been 6814. However, due to this error it was recorded as 7014. After adding the postal ballots, Shri N. R. Zeliang vote count should have been 6850 while the vote of Shri Namri Nchang should have been 7018. Hence, the result of this constituency should have been in favour of Shri Namri Nchang. 4. As regard, the role of Returning Officer during counting it is to mention that the counting of votes is done by the RO. The fidelity of counting and the responsibility ensuring correctness of data is that of the Returning Officer. The Observer is also responsible for ensuring the fairness of counting of votes and for complete accuracy of compilation of result. He after completely satisfying himself about the fairness of counting of votes and complete accuracy of compilation of result has to authorize the RO for declaration of the result. 5. As regards the role of DEO, it is to be mentioned that the DEO is not directly connected with the counting process as such. The role is that of coordinating and providing the overall guidance and making all the arrangements for the counting. Encl:- As above Yours faithfully, (Ambijit Sinha) IAS Chief Electoral Officer, Nagaland Copy to :- Shri Sudeep Jain, Deputy Election Commissioner, Election Commission of India, New Delhi" 6. On receipt of the above stated report of the Returning Officer and the report forwarded by the Chief Electoral Officer, Nagaland, the Election Commission of India considered the same and passed an order on 04-03-2018 wherein, the Commission came to the conclusion that if the mistake as reported by the Returning Officer is not rectified, it will cause grave injustice and vitiate the entire process of the election. After coming to such conclusion, the Commission , in exercise of its plenary powers under Article 324 of the Constitution directed the Returning Officer to cancel the declaration of the result in Form No. 21C and return of candidate in Form No, 21E and certificate of election in Form No. 22 issued in favour of the respondent No.1 and to declare the right candidate who has polled the highest number of valid votes as elected and thereafter to take all necessary consequential action as required under the law. The order of the Election Commission of India which was issued by the Secretary of the Commission and sent by the Under Secretary of the same commission to the Chief Electoral Officer, Nagaland for necessary action of the Returning Officer along with the said forwarding letter are reproduced herein below: - "Election Commission of India Adan, Ashoka Road, New Delhi-110001 ORDER WHEREAS, the General Election to the Legislative Assembly of Nagaland was notified on 7th February, 2018, and the poll was taken on 27th February, 2018 in 59 Assembly Constituencies including 6-Tening Assembly Constituency and WHEREAS, counting of votes of 6-Tening Assembly Constituency alongwith the other 58 Assembly Constituencies that went to poll on 27th February 2018, was taken up by the respective Returning Officer on 3rd March, 2018 : and WHEREAS, the Returning Officer of the said 6-Tening Assembly Constituency, in a report sent through the Chief Electoral Officer, Nagaland has stated that there was a discrepancy in tabulation of the figures of votes shown against Shri N.R. Zeliang, one of the contesting candidates, in the fourth round of counting inasmuch as against 624 votes cast in his favour, the figure 824 was wrongly entered in the tabulation sheet: and WHEREAS, the above error was not noticed at that stage and the Returning Officer on completion of the counting, declared Shri Zeliang as elected (Form 21C) and also prepared the return of election (Form 21E) with 7050 votes shown in favour of Shri Zeliang and 7018 votes in favour of Shri N. Nchang : and WHEREAS, later, the abovementioned tabulation error came to the notice of the Returning Officer and it emerged that the tabulation error resulted in 200 extra votes wrongly credited against Shri Zeliang and that the correct figure of votes cast for Shri Zeliang should have been 6850 (and not 7060) and consequently Shri N.Nchang securing 7018 votes should have been declared elected: and WHEREAS, the Returning Officer further reported that although he issued Form 21C, 21E, and 22 as required under section 67 of the Representation of The People Act, 1951 and Rule 64 of the Conduct of Elections Rules, 1961 as in the meanwhile the clerical mistake of erroneously showing 200 additional votes to Shri Zeliang in the fourth round was noticed, and he sought further directions of the Commission: and WHEREAS, the Hon'ble Supreme Court in Krishna Ballabh Prasad Singh v. Sub-Divisional Officer Hilsa cum Returning Officer ( AIR 1985 SC 1746 ) has held that " We are of opinion that the process of election came to an end only after the declaration in Form 21-C was made and the consequential formalities were completed ( Emphasis added): and WHEREAS, in the present case, the Returning Officer, after declaring result in Form 21C did not send copy thereof to the State Government or to the Commission, nor did he send copies of return of election in Form 21E to the Commission as required under Rule 64 of the Conduct of Elections Rules, 19961 of sending copies of Form 21C and Form 21E to the State Government and to the Commission were not fulfilled after declaring the result. Therefore, the certificate of election in Form 22 to Shri Zeliang was not issued after following the due procedure as provided under the law. In fact, the Returning Officer's report states that the reason for ot sending the report to the State Government and the Commission was that he noticed the clerical calculation error in the meanwhile. Thus, the process of election has not come to an end in this case: and WHEREAS, on account of the tabulation error, Shri Zeliang who polled 6850 votes was wrongly declared elected by the Returning Officer in place of Shri N. Nchang who polled 7018 votes and the Commission is satisfied that if this mistake on part of Returning Officer is not rectified, it will cause grave injustice and vitiate the entire election: NOW, THEREFORE, the Commission, in exercise of its plenary powers under Article 324 of the Constitution, hereby directs that the Returning Officer shall cancel the declaration of result in Form 21C and return of election in Form 21E and certificate of election in Form 22 wrongly issued in favour of Shri N.R. Zeliang, and to declare the right candidate who has polled the highest number of valid votes as elected, and thereafter, to take all necessary consequential actions as required under the law. By order, (ARVIND ANAND) Secretary "Election Commission Of India Nircachan Sadan, Ashoka Road, New Delhi-110001 No. 470/NL-LA/2018 Dated: 04th March 2018 To, The Chief Electoral Officer, Nagaland, Kohima Subject: General Election to the State Legislative Assembly of Nagaland-Wrong declaration of result by the Returning Officer of 6-Tening Assembly Constituency of Nagaland-Regarding Sir, I am directed to refer to your letter No.F.ELEC/CDT-50/2018 dated 03rd March, 2018 on the subject cited and to forward herewith Commission's order dated 04th March, 2018. The same may be forwarded to the Returning Officer concerned for necessary action. Yours faithfully, (Navin Kumar) Under Secretary Ph. 011-23052019" 7. On receipt of the above stated order of the Election Commission the Chief Electoral Officer, Nagaland forwarded the same to the Returning Officer of the No.6 Tening Assembly Constituency vide his letter dated 04-03-2018. The same may be forwarded to the Returning Officer concerned for necessary action. Yours faithfully, (Navin Kumar) Under Secretary Ph. 011-23052019" 7. On receipt of the above stated order of the Election Commission the Chief Electoral Officer, Nagaland forwarded the same to the Returning Officer of the No.6 Tening Assembly Constituency vide his letter dated 04-03-2018. Contents of the same are also reproduced herein below:- "Office Of The Chief Electoral Officer Nagaland, Kohima E-mail: ceo_nagaland@eci.gov.in/Fax-0370-2290460 NO.ELE/CDT-50/2018 Date 4th March 2018 To, The Returning Officer, 6-Tening Assembly Constituency Peren Sub:- General Election to the State Legislative Assembly of Nagaland-Wrong declaration of result by the RO of 6 Tening AC of Nagaland-Forwarding of ECI Order No.470/NL-LA/2018-regarding Sir, I am to forward herewith the ECI Order No. 470/NL-LA/2018, dated 4th March 2018 on the above subject for your information and immediate compliance. Yours faithfully, (Abhijit Sinha) IAS Chief Electoral Officer Nagaland Copy to: 1. The DEO & DC Peren for information and necessary action (Abhijit Sinha) IAS Chief Electoral Officer Nagaland" 8. On receipt of the Election Commission order forwarded by the Chief Electoral Officer, Nagaland, the Returning Officer, 6 Tening Assembly Constituency passed an order dated 04-03-2018 whereby the declaration of result of 6 Tening Assembly Constituency election in Form No, 21C and return of election in Form No., 21E and certificate of election in Form No,. 22 which were issued in favour of the respondent No.1 were cancelled and at the same time declared the present applicant as the returned candidate of the 6 Tening Assembly Constituency. The contents of the order are reproduced herein below:- Government Of Nagaland Office Of The Returning Officer 6-Tening : Nagaland NO.ELE/CAE-NP (6-TNG-AC) 2018/ Dated 4th March, 2018 ORDER Whereas, the general election to the Legislative Assembly of Nagaland was notified on 7th Feb, 2018. The poll was conducted on 27th Feb 2018. The counting of 6th Tening A/C along with the other constituencies of the State was taken on 3rd March, 2018. Whereas, the undersigned detected a discrepancy in the final tabulation of total vote cast in favour of Shri Namduadi Rangkau Zeliang and erroneously issued a Form 21C and also prepared Form 21E in his favour. This was informed immediately to the DEO which was subsequently forwarded to the commission further the certificate were not forwarded to the appropriate authority. Whereas, the undersigned detected a discrepancy in the final tabulation of total vote cast in favour of Shri Namduadi Rangkau Zeliang and erroneously issued a Form 21C and also prepared Form 21E in his favour. This was informed immediately to the DEO which was subsequently forwarded to the commission further the certificate were not forwarded to the appropriate authority. This mater has been examined by the Election Commission of India and basing on Order NO. 470/NL-LA/2018 dated 4th March, 2018, where the Commission has in exercise of its plenary powers under article 324 of the constitution directed the undersigned to cancel the wrong declaration of result in Form 21C and return of election in Form 21A and the certificate of election in Form 22 issued in favour of Shri Namduadi Rangkau Zeliang (copy enclosed) Hence basing on the directive issued by the Election Commission of India I Shri Warren Holohon Yepthomi, Returning Officer 6-Tening Assembly Constituency hereby cancel the erroneous declaration of result in Form 21C and Return of Election in Form 21E and certificate of election in Form 22 in favour of Shri Namouadi Rangkau Zeliang and declare Shri Namri Nchang as the Returned candidate of the 6-Tening AC for securing the highest votes polled. (Warren Holohon Yepthomi) Returning Officer 6-Tening A/C" 9. Being aggrieved by the whole process of cancelling the declaration under Form No. 21C and return of election in Form No. 21E and certificate of election in Form No. 22 all issued in his favour and, by the declaration of the present applicant as elected/returned candidate of the No.6 Tening Assembly Constituency the petitioner filed Election Petition which was registered as Election Petition No. 2 (K) of 2018 in this High Court. After receiving notice, the applicant who is the respondent No.1 in the Election Petition has filed the present application praying for dismissal of the election petition. 10. The case of the election petitioner in brief is that:- (i) before issuance of declaration under Form 21C and return of candidate under Form 21E and the certificate under Form 22 the agents/representatives of all the candidates were given time to raise objection if they have any, but no objection was raised inspite of the opportunity and time given. 10. The case of the election petitioner in brief is that:- (i) before issuance of declaration under Form 21C and return of candidate under Form 21E and the certificate under Form 22 the agents/representatives of all the candidates were given time to raise objection if they have any, but no objection was raised inspite of the opportunity and time given. Therefore, the complaint lodged by the respondent No.1 (applicant in this I.A) should not have been taken cognizance of (ii) the election process had come to an end when the declaration under Form 21C, return of candidate under Form 21E and certificate under Form 22 were issued, therefore, at that point of time, the jurisdiction of the Returning Officer had come to an end and he had become functus officio. As such, the report of the Returning Officer and the consequential orders passed thereafter are in violation of mandatory provisions of the relevant rules. Hence, the same deserves to be quashed and set aside; (iii) that the rechecking/recounting of the votes in round number 4 was carried out in his absence and in the absence of his agents or representatives and, no opportunity of being heard was given to him. The fact that he had been already declared elected and the fact that all the necessary formalities like declaration under Form 21C, return of candidate under From 21E and certificate under Form 22 were already issued in his favour, the Returning Officer, even if he were to carry out the rechecking/recounting, should have done the same in his presence or in the presence of his agents or representatives, (iv) under the rules the Secretary, Election Commission of India has no power whatsoever to pass such order directing the Returning Officer of No.6 Tening Assembly Constituency to cancel the result of the election declared in favour of the election petitioner and the certificate issued under Form 21C, Form 21E and Form 22 (v) since all the process of the election has been completed and the declaration under Form 21C return of candidate under Form 22 and certificate under Form 22 have been issued, remedy available for the respondent No.1 ( applicant in this I.A) is only by way of filing election petition and not by filing complaint. Therefore, the order of the Secretary, Election Commission of India deserves to be quashed and set aside. 11. Therefore, the order of the Secretary, Election Commission of India deserves to be quashed and set aside. 11. Instead of filing written statement to the election petition, the applicant (respondent No.1 in the election petition) has preferred to file the present I.A. The case of the applicant in this IA as submitted by his learned senior counsel is as follows; that the election petition has not disclosed any actionable cause of action and the dates of cause of action. Therefore, it is barred by law and facts. Elaborating his statement, learned senior counsel submitted that in order to maintain sanctity of the election process which is a very lengthy one, an election petition has to be seen or scrutinized strictly to ensure that the same has complied with all the rules and norms framed for the purpose. So, when no cause of action is disclosed in an election petition, the same has to be dismissed at the threshold. That the election petition has not disclosed any material facts which would constitute actionable cause of action. In the absence of such material facts, there can be no basis on which the cause of action would be based. Therefore, the election petition deserves to be dismissed. That the election petition has been filed without complying with the mandatory requirements of law as provided under Section 81 (iii) of the Representation of People Act, 1951, under which it is required that every copy of the petition which is to be given to the respondents should be attested by the petitioner under his own signature as true copy of the petition. However, the copy of the petition furnished to the applicant was not attested. Therefore, the election petition is liable to be dismissed on that count alone. That though the election petitioner had alleged that the Returning Officer of the constituency concerned and the Secretary, Election Commission of India had no authority to cancel the result of the election declared in his favour there is no prayer in the petition to declare the action of two officers as void and illegal. As such, there is no cause of action in the election petition and the same is liable to be rejected. That though the election petitioner had alleged non-compliance of the mandatory provision of the acts and rules, he had not referred to any specific mandatory provision. As such, there is no cause of action in the election petition and the same is liable to be rejected. That though the election petitioner had alleged non-compliance of the mandatory provision of the acts and rules, he had not referred to any specific mandatory provision. In the absence of such pleadings, the allegations are baseless and without legs to stand on in the eye of law. Lastly, that the election petition is bad for non-joinder of necessary parties. Elaborating the same, it has been submitted that as per the contents of the election petition, the petitioner's grievance arose from the action taken by the Returning Officer and the Election Commission of India, therefore, without making them a party, there can be no meaningful or effective adjudication of the issue raised in the election petition. As such, the election petition can be dismissed on that count too. 12. Learned senior counsel had submitted at length by referring to the different paragraphs of the election petition but reproducing of such submissions would only lead to increase in the volume of this judgment. However, it can be stated in short that the submissions of the learned senior counsel were all on the point that no material facts in support of the allegations made in the election petition have been stated in the election petition itself, therefore, there is no basis on which the case of the petitioner would stand. 13. At the very outset, learned senior counsel Mr. S. Dutta appearing for the respondent No.1 (election petitioner) submitted that the reasons or the grounds on which the applicant in this I.A has sought for dismissal of the election petition are something which should have been submitted in the written statement to the election petition and not in an I.A. Learned senior counsel thereafter, submitted that all the required material facts and the cause of action have been clearly stated in the election petition. Therefore, to say that no materials have been stated and the cause of action have not been disclosed ought to be rejected. Learned senior counsel further submitted that by mere perusal of the election petition, it would be clear that the same was filed with due compliance of the provisions of the laws in force. Therefore, the I.A is totally misconceived and liable to be dismissed. 14. Learned senior counsel further submitted that by mere perusal of the election petition, it would be clear that the same was filed with due compliance of the provisions of the laws in force. Therefore, the I.A is totally misconceived and liable to be dismissed. 14. section 23 of the Representation of The People Act, 1951 provides what an election petition should contain. The provisions of Section 23 are reproduced herein below:" 183 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 party 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 pleadings; (Provided that where the petitioner alleges any corrupt practice, the petitioner 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 petitioner shall also be signed by the petitioner and verified in the same manner as the petition) 15. Perusal of the above provision makes it is clear that an election petition should contain a concise statement of the material facts on which the petitioner relies. Therefore, the applicant is right to the extent that the election petition should contain the material facts on which the petitioner relies. However, this Court is not in agreement with him when he say that the election petition did not contain the material facts. As already stated above, the case of the election petitioner is that after the declaration of the election and issuance of the Form 21C, 21E and certificate under Form 22, the Returning Officer on the complaint submitted by the applicant (respondent No.1in the election petition) and without giving him a chance of being heard had submitted a report which led to passing of the order by the Election Commission which directed him ( Returning Officer) to cancel the result declared earlier and issuance of another declaration by which the applicant in this I.A was declared elected. As such, the whole process deserves to be quashed and set aside. Further, that since the process of the election had come to an end when the Returning Officer declared him elected, the Returning Officer from there on no longer has the jurisdiction to take any action regarding the election. As such, the submission of the report and the action that followed were all taken without jurisdiction. Hence, the whole process of cancelling the election result declared in his favour and declaring the applicant (respondent No.1 in the election petition) are null and void. Lastly, the case of the election petitioner is also that since election result have been declared at the end of the counting, the only remedy that is available for the applicant ( the respondent No. 1 in the election petition) is by way of filing an election petition and not through submission of a complaint as was done. Therefore, the whole process undertaken was against the law provided under the relevant act and rules. In support of his case, the election petitioner in his petition had stated all the material facts. The relevant paragraphs are 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16. 16. On careful perusal of the paragraphs stated above would show that the material facts on which the petitioner relies his case have been clearly and sufficiently stated. For easy reference, the contents of the paragraphs are reproduced herein below: "6. That the poll took place on 27.02.2018, as per the schedule in all the 61 polling stations, The total number of electors in the 6-Tening Assembly Constituency is 26619 (Twenty six thousand six hundred and nineteen) ONLY. That in the meantime Mr. Warren Holohon Yepthomi, the Returning Officer, 6 Tening Assembly Constituency, District-Peren, Nagaland(hereinafter referred to as RO) issued a notice to the candidates or the elections agents regarding the date, time and place for counting on 03.03.2018 at 8:00 A.M at Conference Hall, Old DC Office Building, Peren vide Notice NO. ELE/PRN/CAE/2018/-1168 dated 25.02.2018. 7. That on 03.03.2018, the counting was held as per schedule. During the process of counting of the votes, the election petitioner's counting agents namely (1) Mr. Haisui Riame (2) Mr. Ilungbam (3) Mr. Lungchui (4) Mr. Heikolu (5) Mr. Paubingai Rentta (6) Kerang Domta were present. But, so far, identity cards issued by the RO in respect of Mr. 7. That on 03.03.2018, the counting was held as per schedule. During the process of counting of the votes, the election petitioner's counting agents namely (1) Mr. Haisui Riame (2) Mr. Ilungbam (3) Mr. Lungchui (4) Mr. Heikolu (5) Mr. Paubingai Rentta (6) Kerang Domta were present. But, so far, identity cards issued by the RO in respect of Mr. Kerang Domta and Mr. Paubingai Rentta were inadvertently shown to have issued as a counting of Independent candidate, which if factually not correct. The votes were recorded showing the total votes polled and votes polled by each candidates on the display board provided for the purpose in the counting place, whereby showing the total votes secured by the election petitioner as 6843 votes, respondent No. 1 as 6710 votes respondent No. 5 as 6181 votes and NOTA as 129 votes. Mention may be made herein that during the 11 (eleventh) round of counting of votes the election petitioner secured 165 votes and respondent No. 1 secured 47 votes from 6/59- Athibung Town (S/W) respectively and the election petitioner secured 6 votes and respondent No. 1 secured 237 votes from 6/26-Phaikholum respectively. Through postal ballot the election petitioner secured 36 votes and respondent No.1 secured 24 votes respectively. Further during the counting of postal ballots 2(two) more votes were added in favor of respondent No.1, thereby bring the total count of votes secured by the election petitioner as 7070 votes, respondent No. 1 as 7108 votes and respondent No. 2 as 6476 votes. The election petitioner respectfully states that it was the election petitioner's utmost desire to observe/witness when the resealing of the control units of polling stations No. 19 (6/19-Nsong village), No. 20 (6/20-Nsong Town), No. 21 (6/21-Nchan), No,. 22 (6/22-Ngoulong Old), No. 23 (6/23-Ngoulong New) and No. 2496/24-Nkio Old) and in this respect election petitioner intimated the RO that when resealing is done it should be in his presence but nonetheless he was never informed when the resealing was done by the R.O. 8. That the process of vote counting came to is finality at around 11:30 A.M,. in due time the Returning Office informed all the candidates and their chief agents that time is given to them to raise objection, if any, regarding the counting of votes. That the process of vote counting came to is finality at around 11:30 A.M,. in due time the Returning Office informed all the candidates and their chief agents that time is given to them to raise objection, if any, regarding the counting of votes. Since, none of the candidates or their official chief agents or their counting agents raised any objection, the Returning Officer closed the process of counting of votes. Thereafter, the election petitioner received Form No. 21E, showing that the election petitioner has secured 7050 votes, respondent No. 1 secured 7018 votes, respondent No. 2 secured 6476 votes and 150 NOTA votes were casted, the RO has also issued Form No. 21C in favor of the election petitioner. Subsequently, on the same say at 1:18 P.M, the Returning Office upon the completion of the counting votes, the Returning Officer declared the election petitioner as the winning/returned candidate by a margin of 32 votes and the election petitioner was granted a certificate of election as mentioned in Form No. 22 thereby the election petitioner acknowledged the receipt of Certificate in Election in Form No. 22 declared on 03.03.2018. 9. That after grant of certificate of election to the election petitioner and on completion of all the formalities as per The Conduct of Elections Rules, 1961 (hereinafter referred to as "the Rules"), at around 6:30 P.M on 03.03.2018, one Mr. Haitwa, Vice President of NPF- 7 Peren Assembly Constituency informed the election petitioner, that one Mr. Ziekuidi Zeliang, the President of NDPP, Peren Division along with respondent No.1 and one Dr. Tumba (the chief agent of respondent No.1) has submitted an application before the Deputy Commissioner and District Election Officer praying for recheck of final total result sheet, EVM and VVPAT stating that there has been an anomaly in the overall counting in polling station wise. The objection filed by respondent No.1 on 03.03.2018 was received by election petitioner at 9:19 P.M through Whatsapp on 03.03.2018 sent by one Mr. Pingmam (+91 9436619971), Secretary NPF 7- Peren Assembly Constituency. 10. The objection filed by respondent No.1 on 03.03.2018 was received by election petitioner at 9:19 P.M through Whatsapp on 03.03.2018 sent by one Mr. Pingmam (+91 9436619971), Secretary NPF 7- Peren Assembly Constituency. 10. That immediately, the election petitioner submitted a letter to the Chief Election Commissioner, Nirvachan Sadan, Ashoka Road, New Delhi-110001, through the Chief Electoral Officer, Kohima, Nagaland objecting the recounting of votes, stating that as per law no recount or re-poll or any other interference in the electoral process is possible once the return of election is issued in favor of a candidate and all grievances shall have to be raised through an Election petition only. 11. That in the meantime, Mr. Haitwa, Vice President of NPF-7 Peren A/C along with one Mr. Pingkam, Secretary NPF 7 Peren A/C at around 6:45 PM went to the Deputy Commissioner's Office to enquire the reason in submitting the said complaint letter by respondent No,.1. To their surprise, it was learned that the RO had already taken cognizance over the complaint. Mr. Haitwa and Mr. Pingkam strongly objected the decision taken by RO. Mr. Ziekuidi Zeliang, the President of NDPP, Peren Division, the respondent No.1 and Dr. Tumba (the chief agent of respondent No.1) remained with the Deputy Commissioner in his office till 11:30 P.M. 12. That is was only on 04.03.2018 it has come to the knowledge of the election petitioner that one report was issued by the RO bearing NO.ELE/CAE-NP)6-TNGAC) 2018 dated 03.03.2018 reported that there has been a discrepancy in counting in round No. 4 w.r.t. 6-Tening Assembly Constituency stating, an extract is reproduced herein below; "There has been a discrepancy in counting round number 4 with respect to 6 Tening A/C the total number of votes polled in favor of Shri Namdaudi Rangkau Zeliang should be 624 however it was erroneous entered a 824. This has resulted in total cumulative vote difference of this particular candidate to be 155. The actual vote polled for him should have been 6814 however due to this error it was recorded as 7014. The result of this constituency was declared in favor of Shri Namduadi Rangkau Zeliang. However, if the actual position is to be considered then the votes in favor of Shri Namri Nchang, NDPP candidate should be 6969 which means that Shri Namri Nchang should be the returned candidate instead of Shri Namdaudi Rangkau Zeliang. The result of this constituency was declared in favor of Shri Namduadi Rangkau Zeliang. However, if the actual position is to be considered then the votes in favor of Shri Namri Nchang, NDPP candidate should be 6969 which means that Shri Namri Nchang should be the returned candidate instead of Shri Namdaudi Rangkau Zeliang. However, the result have been cleared erroneously for this constituency in favor of Shri Namdaudi Rnkhau Zeliang. We request you to kindly suggest a means to rectify our error" 13. That the election petitioner begs to state that sufficient time and opportunity was given to all the candidates to raise objection, if any, with regard to count/recount of votes before declaring the election petitioner as the returned candidate by the RO. However, the RO at the behest of respondent No.1, his chief agent Dr. Tumda and Mr. Ziekuidi Zeliang, the President of NDPP, Peren Division in total violation of the procedures had issued Report dated 03.03.2018. However, the Report dated 03.03.2018 suffers from absurdity. The election petitioner craves the leave of this Hon'ble Court to let the Election Commission of India produce the CCTV footage of the 6-Tening Assembly Constituency at ADC Compound (premises), Peren Town on 03.03.2018 between 6 PM to 12 AM 14. That basing on the report of RO dated 03.03.2018, the Chief Electoral Officer, Nagaland, Kohima vide Letter No.ELE/CDT-50/2018 dated 03.03.2018, addressed to the Secretary, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi- 110001, intimated about so called discrepancy in counting in 6-Tening A/C. Thereafter, the Under Secretary, Election Commission of India, Nirvachan Sadan, Ashoka Road, New Delhi-110001 vide Letter No. 470/NL-LA/2018 dated 04.03.2018 to the Returning Officer concerned for necessary action. 15. That thereafter, in compliance, the Chief Electoral Officer, Nagaland, Kohima vide letter No. ELE/CDT-50/2018 forwarded the order dated 04.03.2018, to the RO for immediate compliance. The concerned RO vide impugned Order No. ELE/CAE-NP (6- TNG-AC)/2018/ dated 04.03.2018, cancelled the result in Form 21C, Return of Election in Form 21E and Certificate of Election in Form No. 22 in favor of the election petitioner and declared respondent No.1 as the returned candidate of the 6-Tening A/C for securing the highest votes polled. The election petitioner respectfully states that after cancelling the said Certificate of Election in favor of the election petitioner a fresh Certificate of Election was issued to the respondent No.1. 16. The election petitioner respectfully states that after cancelling the said Certificate of Election in favor of the election petitioner a fresh Certificate of Election was issued to the respondent No.1. 16. That election petitioner respectfully states the RO never intimated the election petitioner and respondent No.2 about any complaint made by the respondent No.1 and no rectification, if any was conducted in presence of the election petitioner and respondent No.5. However, it was only after a lapse of more than 5 (five) hours that the respondent No.1 along with his chief agent Dr. Tumda and Mr. Ziekuidi Zeliang, President NDPP, Peren Division came back from Jalukie and reported to the RO about the error in counting. The actual stand, basing on records is that after completion of the all Forms including Form 21C and Form 21E, the Returning Officer had issued Form No 22 (Certificate of Election) in favor of the election petitioner. Further that, the so called rectification was done behind the back of the election petitioner and the respondent No.2." 17. Coming to the next point raised by the applicant that is non impleadment of Returning Officer and the Election Commission of India. I am in agreement with the applicant that the election petitioner should have impleaded them because it is they who took up the process and passed the orders under challenge. However, I am of the view that the election petition cannot be dismissed only on that ground because the election petition is at early stage and they can still be impleaded. In a democratic form of government, the government is formed by the people's representatives who are elected through ballot. The whole process of election through which the representatives are elected, has to be transparent, just and fair. It should be the duty of everyone specially those who are given the responsibility of the same to do everything at their command as per the law to maintain the sanctity of the whole process so that the same is not only and just fair but trust of the people is not lost in the system. It would be doomsday for democracy once people's trust in the system is lost. Therefore, the election petition which is purportedly trying to bring out the wrong (if any) committed in the election process cannot be dismissed for reasons for which there is remedy. It would be doomsday for democracy once people's trust in the system is lost. Therefore, the election petition which is purportedly trying to bring out the wrong (if any) committed in the election process cannot be dismissed for reasons for which there is remedy. Substantial justice must always occupy the centre stage and not the procedural lapses. On the next point raised by the applicant that the election petitioner did not attest with his signature the copy of the petition furnished to him, the same has been vehemently denied by the opposite party (election petitioner) at para 7 of his objection. The petitioner have not produced anything to show that the copy of the election petition served to him was not attested by the opposite party (election petitioner) with his signature. It is true that section 81 (3) of the Representation of The People Act, 1951, it is provided that copy of the election petition served to respondent should be attested with signature of the election petitioner. The principle of law on this is no longer less integra. In catena of cases Hon'ble Supreme Court of India has ruled that non-compliance of the provision of section 81 (3) of the Representation of The People Act, 1951 will invite dismissal of the election petition under Section 86 of the same Act and High Court is obligated to do the same. Citing of one of the judgments would be sufficient. Ajay Maken v. Adesh Kumar Gupta and Another, reported in (2013) 3 SCC 489 :- Relevant para "7. Legally there is distinction between failure to sign and verify the original copy of the election petition filed in the court and failure to attest the copy served on the respondent to be a true copy of the election petition. While the latter failure falls within the scope of Section 81 (3), the earlier failure falls under subsection (1)(c) and sub-section (2) of Section 83.While the failure to comply with the requirements of Section 81 obligates the High Court to dismiss the election petition, the failure to comply with the requirements of Section 83 is not expressly declared to be fatal to the election petition. The said distinction is explained by this Court in Manohar Joshi v. Nitin Bhaurao Patil in paras 20 and 21". The said distinction is explained by this Court in Manohar Joshi v. Nitin Bhaurao Patil in paras 20 and 21". However, in this case as stated above, the petitioner has not shown anything to show that the copy of the election petition served to him has not been attested by the election petitioner. Therefore, the petition cannot be dismissed under section 86 of the Representation of The People Act, 1951. 18. A careful perusal of the application, it appears to me that the statement and the submissions made therein are something which the applicant should have stated in the written statement in defence of his case. 19. In view of the facts and circumstances and the reasons stated above, I am of the view that the applicant's case in this I.A has no merit. Therefore, it is dismissed. The respondent No.1 i.e the election petitioner should implead the Returning Officer of 6-Tening Assembly Constituency and the Election Commission of India and others which are necessary parties within 10 (ten) days from today. Soon after the impleadment, the petitioner should also take steps for sending notice to the newly impleaded respondents making the same returnable within 4 (four) weeks from the date the steps are taken. I.A (C) No. 128 (K) of 2018 20. This is an I.A filed by the respondent No. 1 in the Election Petition No. 2 (K) of 2018 praying for permission to file written statement of the respondents after disposal of the above I.A i.e I.A (C) No. 117 (K) of 2018. The main reasons for filing this I.A, as submitted by the learned senior counsel representing the applicant, is that in case the election petition is dismissed by the judgment passed in the I.A (C) No. 117 (K) of 2018, it will be an exercise in futility to file the written statement. There is no serious objection raised in this application from the side of the opposite party except stating that the written statement should have been filed within the time frame given in the relevant rules. Considering the fact that the applicant had filed the I.A (C) No. 117 (K) of 2o18, he could be in legitimate expectation of the election petition being dismissed. Therefore, as submitted it could have been futile exercise to file the written statement in the event the election petition itself is dismissed. 21. Considering the fact that the applicant had filed the I.A (C) No. 117 (K) of 2o18, he could be in legitimate expectation of the election petition being dismissed. Therefore, as submitted it could have been futile exercise to file the written statement in the event the election petition itself is dismissed. 21. In that view of the matter, the prayer of the applicant is allowed. 22. Now that the I.A (C) No. 117 (K) of 2018 has been disposed of by dismissing the prayer of the applicant herein, the applicant in this I.A (i.e the respondent No. 1 in the election petition) should file his written statement within a period of 30 days from today. 23. List the election petition after 30 days. 24. With this the I.A is also disposed of.