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2019 DIGILAW 36 (MAN)

Sanasam Bira Singh v. Ningthoujam Mangi

2019-07-05

KH.NOBIN SINGH

body2019
JUDGMENT : 1. Heard Shri Serto T. Kom, learned Advocate appearing for the applicant/respondent No.1 and Shri A. Mohendro, learned Advocate appearing for the respondent No.1/petitioner. 2. This is an application filed by applicant/respondent No.1 praying for dismissal of the election petition on the ground of non-compliance of the mandatory provisions of the Representation of the People Act, 1951 and in particular, sub-Section (I) of section 81 of said Act because the said election petition was not presented by respondent No.1/Petitioner himself, in order to substantiate the aforesaid contention, the learned counsel appearing for applicant/respondent No.1 has relied upon three documents. The first document is the election petition and in particular, the report given by the Stamp Reporter of this Court on the back/overleaf of page 1 which reads as under : “1. Date of Election: 04-03-2017 2. Date of returned candidate: 11-03-2017 3. Date of presentation of this election petition before the Hon’ble High Court of Manipur at Imphal, Mantripukhri along with his counsel is 25/04/2017, before me. 4. Furnished postage of Rs.130/- (Rupees one hundred and thirty) each is for service of notice for respondent Nos.1 to 3 as required by the rule with registered A/D.” The second document is the Court Fee Register maintained by this Court and in respect of the column 3 regarding the name of petitioners and particulars of petition at serial number 1921 dated 25/4/2017, the entry is as under : “Election Petition No._____/2017, Ningthoujam Mangi Vs. Sanasam Bira & ors By :- P. Tamphamani” The third document is the Note prepared by the Stamp Reporter of this Court at the time of filing the said election petition which reads as under: “In compliance of/with Section 80/80 A read with Section 81 of the Representation of the People Act, 1951, the election petition dated 25/04/2017 on the grounds U/s 80/80A/81 r/w Section 100(1)(d)(i) and Section 100(1)(d)(iv) of Part VI Chapter II & III of the Representation of the People Act, 1951 presented by the election petitioner, Ningthoujam Mangi on the grounds mentioned in Section 100 of the Representation of the People Act, 1951, challenging the election of Shri Sanasam Bira Singh who is the returned candidate in the 11th Manipur Legislative Assembly election from 29-Kumbi Assembly Constituency. The election petition is within 45 days since the pertinent date of declaration of the election in this regard is 11/03/2017 as per petition. The election petition is within 45 days since the pertinent date of declaration of the election in this regard is 11/03/2017 as per petition. In compliance of/with Section 81(3) read with Section 80 of the Representation of the People Act, 1951 and also read with Chapter-VIII-A of the Gauhati High Court Rules, election petitioner has submitted one extra copy (green) of the petition and 3(three) extra copies signed by the petitioner himself attesting thereby as true copies on each pagers with necessary numbers of envelops patched with the requisite postal stamps of Rs.130/- (Rupees one hundred and thirty) only each is for respondent No.1 to 3 with acknowledgement card. The requisite affidavit required under Chapter-VIII-A rule I(c) of the Gauhati High Court Rules as prescribed by Rule 83 (c) of the Representation of the People Act has been filed in support of the election petition. In further compliance of/with Section 117 of the Representation of the People Act, 1951 read with Chapter-VIII-A, rule (I)(d) of the Gauhati High Court Rules an amont of Rs.2000/- (Rupees two thousand) only has been deposited to the State Bank of India, M.G Avenue Branch, Imphal through the Government Treasury at Imphal dated 24/04/2017 in favour of the Registrar General, High Court of Manipur, Imphal, Mantripukhri. The relevant Treasury Challan of deposit is available in the record at page No.53 or as Flag ‘A’. Sd/- Stamp Reporter High Court of Manipur Imphal, Mantripukhri-795002” 3. An objection was filed by respondent No.1/petitioner denying the averments made in the application and in addition thereto, it has been stated that the applicant/respondent No.1 was trying to mislead this Court by making wrong submissions. On the day of filing the election petition, the respondent No.1/petitioner was present and he presented his election petition before this Court through the Stamp Reporter. This fact was recorded by the Stamp Reporter in her Note dated 25.04.2017 which is reproduced hereinabove and the emphasis was given to the expression “presented by the election petitioner, Ningthoujam Mangi”. It has also been stated that the first page of the election petition, at the top and on the right side, bears the expression “presented by N. Mangi, petitioner” written by him with his own signature. The said expressions have proved that the election petition was presented by the respondent No.1/petitioner himself and his presentation had been accepted by the Registry of this Court. The said expressions have proved that the election petition was presented by the respondent No.1/petitioner himself and his presentation had been accepted by the Registry of this Court. The proceedings of the present petition have been unnecessarily delayed resulting in the violation of the objective sought for in the Act and the law laid down by the Hon’ble Supreme Court. In order to achieve his objective of delaying and interrupting the proceedings, the applicant/respondent No.1 has been continuously abusing the process of law by filing application after application. In the application being MC(El.Pet) No.4 of 2019 filed by him with the prayer for dismissal of the election petition, the applicant/respondent No.1 did not intentionally plead the ground raised in this application. Since the tenure of the elected members of the Manipur Legislative Assembly is five years, the applicant/respondent No.1 is trying to defeat the intent of the election laws by playing delay tactics and the filing of the application after application is nothing but to delay the trial so that he can continue enjoying the facilities and the benefits of a legislature. 4. In addition to the documents relied upon by the applicant/respondent No.1, it has been contended by the counsel appearing for the applicant/respondent No.1 that in respect of an election petition being EP No.7 of 2017 filed before this Court, para 4 of the report made by the Stamp Reporter on the backside/overleaf of the first page of the election petition reads as under: “4. The election petition dated 24.04.2017 is presented before me in this Hon’ble High Court of Manipur at Imphal, Mantripukhri by the election petitioner himself along with his counsel. It has further been contended that the missing/absence of the expression “by the election petitioner himself” in the present case has shown that the respondent No.1/petitioner was not present at the time of filing the election petition and in other words, the election petition was not present by the respondent No.1/petitioner himself. The requirement of the election petition to be presented by the petitioner himself has been emphasised and non-presentation of the election petition by the petitioner himself will render it liable to be dismissed, for which the learned counsel appearing for the applicant/respondent No.1 has relied upon the decision rendered by the Hon’ble Supreme Court in G.V Sreerama Reddy & anr. Vs. Vs. Returning Officer & ors, (2009) 8 SCC 736 wherein the Hon’ble Supreme Court held: “19. One can discern the reason why the petition is required to be presented by the petitioner personally. An election petition is a serious matter with a variety of consequences. Since such a petition may lead to the vitiation of a democratic process, any procedure provided by an election statute must be read strictly. Therefore, the Legislature has provided that the petition must be presented "by" the petitioner himself, so that at the time of presentation, the High Court may make preliminary verification which ensure that the petition is neither frivolous nor vexatious. 24. The challenge to an election is a serious matter. The object of presenting an election petition by a candidate or elector is to ensure genuineness and to curtail vexatious litigations. If we consider sub-section (1) along with the other provisions in Chapter II and III, the object and intent of the legislature is that this provision i.e. Section 81(1) is to be strictly adhered to and complied with. 25. In view of the endorsement by the Registrar (Judicial) on 7.7.2008 that the election petition was presented only by an advocate and not by the election petitioners, we accept the reasoning of the High Court in dismissing the election petition. We further hold that as per sub-section (1) of Section 81, election petition is to be presented by any candidate or elector relating to the election personally to the authorized officer of the High Court and failure to adhere such course would be contrary to the said provision and in that event the election petition is liable to be dismissed on the ground of improper presentation.” 5. The short question that falls for consideration by this Court is as to whether the election petition was presented in accordance with the provisions of Section 81 of the Representation of the People Act, 1951 and in other words, whether the election petition was presented by the respondent No.1/petitioner himself ? 6. It is well settled that the Representation of the People Act, 1951 is a special statute and a self contained code or a regime. 6. It is well settled that the Representation of the People Act, 1951 is a special statute and a self contained code or a regime. Section 81(1) of the Representation of the People Act, 1951 provides that in order to question the legality and correctness of an election, an election petition may be presented by any candidate of such election or by any elector on any one or more grounds as specified in Section 100 and 101 within the time prescribed therein. An issue whether the presentation of the election petition was proper or not when the petitioner was not present, came up for consideration before the Supreme Court in G.V Sreerama Reddy case (supra), the decision thereof has been relied upon by the counsel for the applicant/respondent No.1 herein, the Hon’ble Supreme Court, accepting the reasoning of the High Court in dismissing the petition, held that an election petition is to be presented by any candidate or an elector personally to the authorized officer of the High Court. In Sheo Sadan Singh Vs. Mohan Lal Gautam, (1969) 1 SCC 408 , the Hon’ble Supreme Court held: “4. The High Court has found as a fact that the election petition was resented to the Registry by an advocate’s clerk in the immediate presence of the petitioner. Therefore, in substance though not in form, it was presented by the petitioner himself. Hence, the requirement of the law was fully satisfied.” From these two decisions of the Hon’ble Supreme Court, it is absolutely clear that the election petition is to be presented by the petitioner but it is not necessary that it shall be presented by the petitioner himself. The requirement of the law will stand satisfied provided the petitioner is present before the authorized officer of the High Court concerned at the time when the election petition is presented either by an advocate or by an advocate’s clerk. Therefore, there can be no dispute as regards the law laid down by the Hon’ble Supreme Court as aforesaid. 7. In the present case, on the day of filing the election petition, a Note was prepared by the Stamp Reporter wherein it has been stated in the first paragraph that the election petition was presented by the election petitioner, Ningthoujam Mangi. In the first page of the election petition also, a similar endorsement is found with the signature of the election petitioner. In the first page of the election petition also, a similar endorsement is found with the signature of the election petitioner. On the backside or overleaf of the first page of the election petition, a report of the Stamp Reporter is recorded to the effect that the election petition was presented before her along with his counsel. This report has been heavily relied upon by the counsel appearing for the applicant/respondent No.1 to contend that the absence of the expression “by the petitioner’ in it has shown that the petitioner was not present and it was presented by his counsel. His contention appears to be incorrect for the reason that the expression “along with his counsel’ is significant and it indicates that the petitioner was present along with his counsel. It is not his counsel alone who was present. It may have been a mistake on the part of the Stamp Reporter to record the expression “by the petitioner” in the report. It may be noted that there is no any allegation at all against the Stamp Reporter that she had accepted the election petition in collusion with the respondent No.1/petitioner, even though he was not present. Moreover, this report cannot be read in isolation and it is to be read along with the Note prepared by the same Stamp Reporter. The conjoint reading of these two report/Notes makes it clear that the election petition was presented by the respondent No.1/petitioner. But in order to clarify on the issue, this Court vide its order dated 09-05-2019 directed the Registrar (Judicial), High Court to submit a report and in compliance with the said order, the Registrar (Judicial) submitted a report dated 13-05-2019 expressing its opinion that the expression “by the election petitioner, Ningthoujam Mangi” occurred in the Note of the Stamp reporter has clearly shown the personal presence of the respondent No.1/petitioner at the time of presentation of the election petition. The applicant/respondent No.1 has failed to produce any other relevant material like photograph taken at the time of presenting the election petition or an affidavit of an eyewitness who was present before the authorized officer when the election petition was presented by an advocate or his clerk on behalf of the respondent No.1/petitioner. The applicant/respondent No.1 has failed to produce any other relevant material like photograph taken at the time of presenting the election petition or an affidavit of an eyewitness who was present before the authorized officer when the election petition was presented by an advocate or his clerk on behalf of the respondent No.1/petitioner. In the absence of such a concrete evidence and on the basis of the materials on record, this Court cannot come to the conclusion that the election petition was not presented by the respondent No.1/petitioner or he was not present at the time of presentation of the lection petition. 8. For the reasons stated hereinabove, the application being MC(EP) No.4 of 2019 is devoid of any merit and is accordingly dismissed.