Manipur High Court
Dr. Lallukhum Fimate vs Dr. Chaltonlien Amo on 30 March, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
Digitally Page |1
JOHN signed by
JOHN TELEN
TELEN KOM
Date:
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
2022.03.30
KOM 15:03:34
+05'30' Election Petition No. 7 of 2017
Dr. Lallukhum Fimate, aged about 67 years of age, S/o
(L) Rev.HL. Ngura, a permanent resident of Parbung
village P.O. & P.S. Parbung, Pherzol District, Manipur
and at present residing at Ebenezer Villa Langol, Near
Shija Hospital, P.O. & P.S. Lamphel, Imphal West.
..... Petitioner
- versus -
1. Dr. Chaltonlien Amo, Member of the Legislative
Assembly, Manipur, from the 55-Tipaimukh (ST)
Assembly (a Returned Candidate of the INC in the
recently concluded election).
2. Mr. Ngursanglur Sanate, aged about 42 years, S/o
(L) Ngurdinglien Sanate, near Light House,
Churachandpur, P.O., P.S. and District
Churachandpur.
3. Mr. Ngurrivung, aged about 33 years, S/o (L)
Ngurkhawsiem, C/o Lalremlieani Hmar, House
No.A-12, J.L. High School Veng, Khatla, Aizawl,
Mizoram-796001.
4. Mrs. Thangthatling Sinate, aged about 59 years,
w/o/d/o Hranglienkhum Sinate, r/o Khomawi
village, P.O. & Dist. Churachandpur.
Election Petition No. 7 of 2017
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5. The Election Commission of India represented by
the Chief Election Commissioner of India,
Nirvachan Sadan, Ashok Road, New Delhi-
110001.
6. The Returning Officer, 55-Tipaimukh (ST)
Assembly Constituency, Churachandpur.
7. The Presiding Officer, Patpuihmun Polling Station,
55-Tipaimukh (ST) Assembly, Constituency,
Churachandpur.
8. The Presiding Officer, Phulpui Polling Station, 55-
Tipaimukh (ST) Assembly Constituency,
Churachandpur.
.........Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the petitioner :: Mr. Serto T. Kom, Advocate
For the Respondents :: Mr. N. Ibotombi, Sr. Advocate for
the respondent No. 1.
Date of Hearing and
reserving Judgment & Order :: 02.02.2022
Date of Judgment & Order :: 30.03.2022
JUDGMENT AND ORDER
(CAV)
This election petition has been filed by the petitioner
under Section 81 read with Sections 100 and 101 of the
Election Petition No. 7 of 2017
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Representation of the People Act, 1951 [for short, "the Act of 1951"]
for declaring the election of the first respondent from 55-Tipoaimukh
(ST) Assembly Constituency, Churachandpur, Manipur as void and
to declare the petitioner as elected on the grounds that (i) the first
respondent is guilty of a corrupt practice under Section 100(1)(b) of
the Act of 1951 by way of booth capturing under Section 135(A)(1),
Explanation (a), (b), (c) and (e) of the Act of 1951; (ii) by means of
undue influence the first respondent has interfered with the free
exercise of electoral right of genuine voters, thereby attracting
Section 123(2) of the Act of 1951 and (iii) the first respondent had
sworn a false affidavit for which his nomination should have been
rejected.
2. The allegation against the first respondent is that on
4.3.2017, two polling agents namely Lalngilnei and Remruotsang
were threatened by the first respondent and he pointed out finger
on the forehead of Lalngilnei with anger and loud and harsh voice,
as he continued to raise objection against persons who were trying
to vote by impersonation during polls. According to the petitioner,
polling booth of 25/55- Tipaimukh police station was under seized
by the first respondent in between 1.00 p.m. and 3.00 p.m. by
remaining inside the polling booth.
Election Petition No. 7 of 2017
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3. The first respondent resisted the election petition by
filing his written statement stating that the allegation for seizure of
the booth is vague, incorrect and concocted and also the first
respondent denied each of the instances of booth capturing alleged
by the petitioner. According to the first respondent, the allegations
levelled by the petitioner lack in material facts and particulars. On
the basis of such pleadings, no case of corrupt practice can be said
to have been made out. In fact, no complaint by the election agents
of the petitioner or by the petitioner or by the said polling agents,
who were alleged to have been threatened by the first respondent
and two candidates, namely Thangthatling Sinate and Ngurivung to
the competent authority on the day of the alleged occurrence.
Further, no complaint was also lodged either by the Presiding
Officer or the Polling Officers stationed at the polling station to the
Returning Officer or to the Election Commission of India that the
first respondent remained in the polling booth in question and
threatened two polling agents.
4. Based on the pleadings, necessary issues have been
formulated by this Court and thereafter, on the side of the petitioner,
the petitioner and 10 other witnesses were examined and on the
side of the first respondent, 15 witnesses were examined.
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5. When the cross-examination of DW15 is pending, on
24.1.2022, learned senior counsel appearing for the first
respondent submitted that during pendency of the election petition,
the returned candidate/first respondent resigned from the
membership from the Manipur Legislative Assembly and
accordingly, the Secretary, Manipur Legislative Assembly issued a
Bulletin Part-II dated 10.1.2022, thereby declaring that the 55-
Tipaikmkh (ST) Assembly Constituency is lying vacant. He also
pointed out that when fresh notification being issued by the Election
Commission of India for the Manipur Legislative Assembly whether
this Court have power to proceed the case or not? In view of the
above, learned senior counsel wants to argue on that points.
6. When this Court posed this point to learned counsel
for the petitioner, he also agreed to argue on that point. Accordingly,
the matter was directed to be listed to advance their arguments on
the point whether this Court has power to proceed with the election
petition after the fresh notification being issued by the Election
Commission of India. Accordingly, the matter was listed on
02.02.2022 and this Court heard the submissions of learned
counsel for the petitioner and the learned senior counsel for the first
respondent on the point framed by this Court. While addressing the
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aforesaid point, the learned counsel for the parties have also
argued the main issue involved in this election petition based on the
pleadings and the evidences produced by them.
7. Mr. Serto T. Kom, the learned counsel for the
petitioner, by placing reliance upon certain provisions of the Act of
1951 and the decisions of the Hon'ble Supreme Court in the cases
of (i) Election Commission of India v. Telangana Rastra
Samithi, (2011) 1 SCC 370; (ii) (Sheodan Singh v. Mohan Lal
Gautam, AIR 1969 SC 1024; (iii) Loknath Padhan v. Birendra
Kumar Sahu, (1974) 1 SCC 526 and (iv) Dhatipaka Madan Lal
Agarwal v. Rajiv Gandhi, (1987) SCC Suppl. 93, submitted that
the election petition does not become infructuous on the resignation
or disqualification of the first respondent and on the expiry of the
term of membership of the first respondent, if there is an allegation
of corrupt practice against the first respondent. Hence, this Court
has the power to proceed with the election petition even after the
fresh election notification issued.
8. On the other hand, Mr. N. Ibotombi, the learned senior
counsel for the first respondent argued that the relief for setting
aside the election of the first respondent has rendered infructuous
by lapse of time. In this view, grounds raised in the election petition
Election Petition No. 7 of 2017
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for setting aside the election of the first respondent has been
rendered academic. According to learned senior counsel, this Court
should undertake and decide an issue unless it is a living issue
between the parties. If an issue is purely academic in that, its
decision one way or the other would have no impact on the position
of the parties, it would be waste of public time to engage itself in
deciding it. According to learned senior counsel, by the subsequent
notification of the Election Commission of India, election for the
aforesaid constituency was scheduled on 27.2.2022 and
accordingly, election was conducted.
9. To analyse the arguments of learned counsel for the
parties, it would be necessary to deal with the decisions relied upon
by the learned counsel for the petitioner first. In Telangana Rastera
Samithi (supra), the Hon'ble Supreme Court held that simply by
submitting resignation, a successful candidate against whom
allegations of corrupt practices are made, cannot escape the
consequences of Section 8-A of the Act, if the same are ultimately
found to be proved.
10. In Sheodan Singh (supra), the Hon'ble Supreme
Court observed that the purity of elections is of utmost importance
in a democratic set-up. No one can be allowed to corrupt the course
Election Petition No. 7 of 2017
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of an election and get away with it either by resigning his
membership or because of the fortuitous circumstances of the
assembly having been dissolved. The pubic are interested in seeing
that those who had corrupted the course of an election are dealt
with in accordance with law. In the said decision, the Hon'ble
Supreme Court further observed that the contest is really between
the constituency on the one side and the person or persons
complained of on the other. The Act does not provide for the
abatement of an election petition either when the returned
candidate whose election is challenged resigns or when the
assembly is dissolved.
11. In Laknath Padhan (supra), the Hon'ble Supreme
Court held as under:
"4.The position might be different if the allegation
against the respondent were of corrupt practice.
Then it would not be academic to consider
whether or not the respondent was guilty of the
corrupt practice charged against him, because a
finding of corrupt practice has serious
consequences. If the respondent is found guilty of
corrupt practice during the election, not only his
election would be declared void, but he would
also incur certain electoral disqualifications.
Section 8A provides that a person found guilty of
Election Petition No. 7 of 2017
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a corrupt practice by an order under Section 99
shall be disqualified for a period of six years from
the date on which, that order takes effect. The
purity of elections is of utmost importance in a
democratic set up and the law, has, therefore,
taken serious note of corrupt practice in elections
and laid down a disqualification for a period of six
years on an order being made by the High Court
recording a finding of corrupt practice at the time
of disposing of the election petition. It is,
therefore, obvious that when a corrupt practice is
charged against the respondent in an election
petition, the trial of the election petition must
proceed to its logical end and it should be
determined whether the corrupt practice was
committed by the respondent or not. ..."
12. In Dhartipaka Madan Lal Agarwal (supra), the
Hon'ble Apex Court held as under:
"5. .... Section 98 read with Section 99 indicates
that once the machinery of the Act is moved by
means of an election, charges of corrupt practice, if
any, raised against returned candidate must be
investigated. On conclusion of the trial if the Court
finds that a returned candidate or any of his election
agent is guilty of commission of corrupt practice he
or his election agent, as the case may be, would be
guilty of electoral offence incurring disqualification
Election Petition No. 7 of 2017
P a g e | 10
from contesting ay subsequent election for a period
of six years. In this state of legal position we had to
devote considerable time to the present
proceedings as the appellant insisted that even
though six years period has elapsed and
subsequent election has been 'held nonetheless if
the allegations made by him make out a case of
corrupt practice the proceedings should be
remanded to the High Court for trial and if after the
trial the Court finds him guilty of corrupt practice the
respondent should be disqualified. ...."
13. Section 86(6) of the Act of 1951 mandates that trials
in election cases shall, as far as is practicable, proceed on a day-
to-day basis and Section 86(7) directs the Court to endeavour to
conclude the trial within six months from the date on which the
petition is presented to the High Court.
14. It is true that no one can be allowed to corrupt the
course of an election and get away with it either by resigning his
membership or because of the fortuitous circumstance of the
assembly being dissolved. The public are interested in seeing that
those who had corrupted the course of an election are dealt with in
accordance with law. An election to the highest legislative body in
the country or even to any of the other legislative bodies is not
merely a lis between individuals.
Election Petition No. 7 of 2017
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15. The dictum of the Hon'ble Apex Court is that in an
election petition, the contest is really between the constituency on
the one side and the person or persons complained of on the other.
Once the machinery of the Act is moved by a candidate or an
elector, the carriage of the case does not entirely rests with the
petitioner. There is no quarrel on the aforesaid proposition.
16. Though the term of the legislative assembly in
question expired and the next assembly election for the State of
Manipur announced, in the light of the decisions of the Hon'ble Apex
Court, this Court is inclined to proceed with the matter further based
on the materials produced by the petitioner and the first respondent,
since the petitioner alleged commission corrupt practice by the first
respondent during the election in question.
17. According to the petitioner, on 4.3.2017 around 1.00
p.m., the first respondent entered Patpuihmun Polling Station and
went straight to the two polling agents, namely Lalngilnei and
Remruotsang and told them not to raise any objection against his
supporters, if they enter to cast their votes for second or third time.
The first respondent also threatened the polling agent Lalngilnei by
pointing his finger on his forehead with anger and loud and harsh
voice, as the said polling agent continued to raise objections against
Election Petition No. 7 of 2017
P a g e | 12
persons who were trying to vote by impersonation. In order to
threaten more, the first respondent again asked the name of the
father. The first respondent also made physical attack on him.
18. According to the petitioner, thereafter, the polling
agent Remruotsang left the polling booth and went together to the
house of the polling agent Lalngilnei until they were under duress
made to come back to the polling booth at around 3.00 p.m. where
they found the first respondent was still inside the polling booth.
After only about 20 voters casted their votes the polling was closed.
During the said time between around 1.00 to 3.00 pm., the said
polling booth was under seized by the first respondent by remaining
inside the polling booth throughout to allow his supporters to vote in
his favour by impersonation. Even the first respondent used his
security guards to vote in his favour. The said act of the first
respondent inside the Patpuihmun polling booth would amounts to
corrupt practice under Section 100(1)(b) of the Act of 1951, as he
had done booth capturing and caused undue influence with free
exercise of any electoral right.
19. Refuting the aforesaid plea of the petitioner, the first
respondent stated that in connection with the alleged incident, no
complaint was lodged either by the election agents referred to
Election Petition No. 7 of 2017
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above or by the petitioner to the competent authority on the day of
the alleged occurrence. That apart, no complaint has been lodged
either by the Presiding Officer or the polling officials stationed at the
polling station to the Returning Officer or to the Election
Commission of India for re-polling of the said polling booth.
According to the first respondent, there is no material evidence to
support allegations of the petitioner.
20. On a thorough reading of the evidence of the chief-
examination of the petitioner's side witnesses, this Court finds that
almost all the witnesses deposed verbatim. In fact, the petitioner
has failed to produce the witness Lalngilnei for cross-examination.
When the petitioner made allegation that the first respondent
pointed finger on the forehead of Lalngilnei, it is the bounden duty
of the petitioner to produce the said witness for cross-examination.
21. Further, the evidence of the other important witness
namely Remruotsang is also not supported the case of the
petitioner. In fact, in his evidence, witness Remruotsang deposed
that he was not at all in Imphal in the year 2018, 2019 and upto the
end of November, 2020. When Remruotsang was not at Imphal
during the month of November, 2020, how he could able to file his
chief-examination by way of proof affidavit on 4.11.2019. The clear
Election Petition No. 7 of 2017
P a g e | 14
answer of Remruotsang during his cross-examination is to the
effect that he has not signed the examination in chief affidavit. In
view of the above, the chief-examination of Remruotsang is highly
doubtful and the petitioner cannot rely upon the same. As stated
supra, the evidences of the other witnesses also support the plea
of the petitioner.
22. The Act of 1951 is a complete and self contained code
within which any rights claimed in relation to an election or an
election dispute must be found. The scheme of the Act would show
that an election can be questioned under statute as provided by
Section 80 on the grounds contained in Section 100 of the said Act.
Section 83 laid down a mandatory provision in providing that an
election petition shall contain a concise statement of material facts
and set forth full particulars of corrupt practice. The pleadings are
regulated by Section 83 and it makes it obligatory on the election
petitioner to give the requisite facts, details and particulars of each
corrupt practice with exactitude. If the election petition fails to make
out a ground under Section 100 of the said Act, it must fail at the
threshold. Allegations of corrupt practice are in the nature of
criminal charges. It is necessary that there should be no vagueness
in the allegations so that the returned candidate may know the case
Election Petition No. 7 of 2017
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he has to meet. If the allegations are vague and general and the
particulars of corrupt practice are not stated in the pleadings, the
trial of the election petition cannot proceed for want of cause of
action. The emphasis of law is to avoid a fishing and roving inquiry.
23. In the instant case, when the petitioner made
allegation that on 4.3.2017, the first respondent remained inside
and seized polling station and threatened the polling agents and
also forcing the polling officers, succeeded in allowing his
supporters, including his security guards to vote for him by
impersonation, he is bound to examine the polling officials and the
Presiding Officer concerned who were stationed at the polling
booth. However, the petitioner has failed to examine the polling
agents, polling officials and the Presiding Officer, who were present
at the time when the alleged incident took place. Therefore, the
booth capturing and undue influence with free exercise of electoral
right alleged by the petitioner is not supported by any materials and
the said allegation was invented only for the purpose of filing the
election petition, particularly, to attract the corrupt practice under
Section 100(1)(b) of the Act of 1951.
24. It is pertinent to mention that the petitioner has not
mentioned the names of the workers and/or agent from whom he
Election Petition No. 7 of 2017
P a g e | 16
had received the information for seizure of the polling booth. The
petitioner even failed to mention the names of the security
personnel who had alleged to have casted votes. Therefore, on the
basis of such unsubstantiated pleadings and evidence, it cannot be
said that the petitioner has make out a case of booth seizure
attracting the rigours of Section 123(8) read with Section 135 of the
Act of 1951. If really an incident took place as alleged by the
petitioner, the polling officials could have lodged the complaint
before the Returning Officer. However, in the instant case, no such
complaint was made by the polling officials to the Returning Officer
stating that the first respondent remained inside and seized the
polling booth in question and threatened the polling agents and also
there was attack on the polling agents.
25. On a perusal of the complaint Annexure A/5 appended
to the election petition, it is seen that the election agent of one
J.Ringum Khobung lodged a complaint to the Returning Officer on
5.3.2017 stating that he received information from a reliable
sources that the first respondent casted proxy votes by force and
then threatened the agents of the other candidates that he would
hire arm groups if the polling agent refuse to oblige his demands.
As stated supra, the election to the constituency was held on
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P a g e | 17
4.3.2017 and the said complaint was stated to have been given on
the next date. If really there had been occurrence as alleged by the
petitioner, definitely, the polling officers would have lodged the
complaint. In the absence of any complaint by the polling officials,
this Court doubts about Annexure A/5 complaint and also is of the
view that it has been made belatedly by making allegations
convenient to him.
26. The allegation levelled against the petitioner in regard
to the corrupt practice does not amount to the corrupt practice as
mandated under the provisions of the Act of 1951, as no complaint
has been lodged by the polling officials who were at the scene of
occurrence stating that the first respondent had committed corrupt
practice. The material facts and particulars as to the corrupt practice
are required to be supported by relevant documents. In the instant
case, as stated supra, the plea of the corrupt practice alleged by
the petitioner is not supported by any material evidence and hence,
Section 8A of the Act of 1951 will not attract. Nothing has been
produced by the petitioner to substantiate that the act allegedly
done by the first respondent is the commission of corrupt practice.
27. The allegation of corrupt practice levelled by the
petitioner against the first respondent has been discussed by this
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P a g e | 18
Court in the earlier paragraphs in view of the arguments raised by
learned counsel for the parties while advancing their arguments for
the purpose of the point whether this Court has to proceed with the
election petition further.
28. Coming back to the point whether this Court has power
to proceed with the election petition further, as stated supra, though
no provision of the Act of 1951 provides for a specific order of
dismissal on the ground of infructuousness, clause (a) of Section
98 of the Act of 1951 provides for an order of dismissal of an
election petition, of course, at the conclusion of the trial and the
procedures for trial prescribed by Sections 86, 87 and other
provisions of the Act make the procedure applicable under the Code
of Civil Procedure to the trial of suits applicable as nearly as may
be to the election petitions.
29. In this backdrop, we may now turn to the procedural
provisions in the Act insofar as they are relevant for our purpose:
"81. Presentation of petitions. - (1) An election
petition calling in question any election may be
presented on one or more of the grounds specified
in Sub-section (1) of Section 100 and Section 101
to the High Court by any candidate at such election
or any elector within forty-five days from, but not
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earlier than the date of election of the returned
candidate, or if there are more than one returned
candidate at the election and the dates of their
election are different, the later of those two dates.
Explanation.--In this Sub-section, "elector" means
a person who was entitled to vote at the election to
which the election petition relates, whether he has
voted at such election or not.
*****
(3) Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition, and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
83. 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 parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and Election Petition No. 7 of 2017 P a g e | 20
(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 of pleadings:
Provided that where the petitioner alleges any corrupt practice, the petition 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 petition shall also be signed by the petitioner and verified in the same manner as the petition.
86. Trial of election petitions.- (1) The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117.
Explanation.--An order of the High Court dismissing an election petition under this Sub- section shall be deemed to be an order made under Clause (a) of Section 98.
(2) As soon as may be after an election petition has been presented to the High Court, it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under Sub-section (2) of Section 80A.
Election Petition No. 7 of 2017 P a g e | 21 (3) Where more election petitions than one are presented to the High Court in respect of the same election, all of them shall be referred for trial to the same Judge who may, in his discretion, try them separately or in one or more groups. (4) Any candidate not already a respondent shall, upon application made by him to the High Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the High Court, be entitled to be joined as a respondent.
Explanation.--For the purposes of this Sub-section and of Section 97, the trial of a petition shall be deemed to commence on the date fixed for the respondents to appear before the High Court and answer the claim or claims made in the petition. (5) The High Court may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.
Election Petition No. 7 of 2017 P a g e | 22 (6) The trial of an election petition shall, so far as is practicable consistently with the interests of justice in respect of the trial, be continued from day to day until its conclusion, unless the High Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded.
(7) Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial.
87. Procedure before the High Court.- (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
Election Petition No. 7 of 2017 P a g e | 23 (2) The provisions of the Indian Evidence Act, 1872 (1 of 1972), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.
30. From the afore-quoted provisions, it would appear that Section 81 of the Act enables a petitioner to call in question any election on one or more of the grounds specified in sub-section (1) of Section 100 of the Act. Section 83, the pivotal provision for the present case, requires that:
(a) the election petition must contain a concise statement of "material facts" on which petitioner relies and (b) he should also set forth "full particulars" of any corrupt practices which the petitioner alleges. Proviso to Clause (c) of sub-section (1) of Section 83 also provides that where the petitioner alleges any corrupt practice, the election petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. It is plain that the requirement of disclosure of "material facts" and "full particulars" as stipulated in the Section is mandatory. Section 86 mandates that where the election petition does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, the High Court should dismiss the election petition. Section 87, which lays down the Election Petition No. 7 of 2017 P a g e | 24 procedure required to be followed by the High Court while trying an election petition, requires that every election petition shall be tried, as nearly as may be, in accordance with the procedure applicable under the Code to the trial of the suits, subject of course to the provisions of the Act and of any requirement made thereunder.
31. The proviso to Section 87 of the said Act confers discretion on the High Court to refuse for reasons to be recorded in writing to examine any witness or witnesses, if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition. Recourse can be had to the said proviso to refuse to examine any witnesses in the election petition and conclude the trial to make an order under Section 98(a) of the Act of 1951. In that view, the High Court is not barred from taking recourse to such action, which, in fact, is the procedure adopted by the Hon'ble Supreme Court itself in appropriate cases. On a comprehensive consideration of the facts and circumstances of the case, this Court is of the view that further examination of the witnesses in the election petition is not required.
32. At this juncture, it is apposite to mention the decision of the Hon'ble Supreme Court in the case of P.H.Pandian v. P.Veldurai and another, (2013) 14 SCC 685, where an appeal Election Petition No. 7 of 2017 P a g e | 25 under Section 116-A of the Act of 1951 was filed questioning the judgment and order made in the election petition. In the said case, the Hon'ble Supreme Court observed that though fresh elections have since been held to Tamil Nadu Legislative Assembly and to an extent the appeal has been rendered infructuous, the manner in which the election petition was dealt with by the High Court causes concern and necessitates. In the said case, Their Lordships have also made reference to some salient facts. Ultimately, the Hon'ble Supreme Court observed that it is settled practice of Supreme Court not to pronounce upon matters which are only of an academic interest. Once the charge of corrupt practice fails, rest of the appeal would be rendered infructuous because fresh elections have already taken place and the old assembly is no longer in existence. Even if the appellant therein was to succeed on the issue that the returned candidate had a subsisting contract with the Panchayat Union and the State Government and was, therefore, disqualified to be chosen for the seat under Section 9-A of the Act of 1951, it would only be of an academic interest.
33. It is trite law that the proceedings of the election petition are technical and special proceedings. The Hon'ble Supreme Court has explained the legal position in that regard in the Election Petition No. 7 of 2017 P a g e | 26 case of Ram Sukh v. Dinesh Aggarwal, (2009) 10 SCC 541. Paragraph 7 of the said decision is relevant and the same is quoted hereunder:
"7. Before examining the merits of the issues raised on behalf of the election petitioner with reference to the relevant statutory provisions, it would be appropriate to bear in mind the observations of this Court in Jagan Nath v. Jaswant Singh. Speaking for the Constitution Bench, Mehr Chand Mahajan, C.J., had said that the statutory requirement of election law must be strictly observed and that the election contest is not an action at law or a suit in equity, but is purely a statutory proceeding unknown to the common law and that the Court possess no common law power. It is also well settled that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. Nevertheless, it is also to be borne in mind that one of the essentials of the election law is to safeguard the purity of the election process and, therefore, the courts must zealously ensure that people do not get elected by flagrant breaches of that Election Petition No. 7 of 2017 P a g e | 27 law or by indulging in corrupt practices, as enumerated in the Act."
34. In the light of the above decision, as stated supra, allegation of corrupt practice levelled by the petitioner is not supported by materials facts. That apart, the alleged booth capturing stated by the petitioner does not constitute corrupt practice, since no polling officials have spoken about the same or made complaint either to the Returning Officer or to the State Election Commission. In the absence of complaint by the officials, the alleged charge of corrupt practice advanced by the petitioner fails.
35. Whenever in a petition, which includes election petition, the relief claimed with regard to main issue involved becomes redundant or infructuous, then for other relief, the Courts may exercise its discretion and may not proceed further in case right of the plaintiff or dependent satisfied or not grievance remained pending against defendant or respondents because of the change of circumstances. The Court may use its discretion to drop the proceeding and may not proceed further in a matter even if, some relief of academic nature stand survive. Election Petition No. 7 of 2017 P a g e | 28
36. In Kashi Nath Mishra v. Vikramaditya Pandey and others, (1998) 8 SCC 735, the Three Judge Bench of the Hon'ble Supreme Court dismissed the election appeal as infructuous, where the term of the assembly expired by efflux of time and another election was held and another assembly was constituted.
37. Similar was the decision of another Three Judge Bench of the Hon'ble Supreme Court in the case of Romesh v. Ramesh K.Rana, (2000) 9 SCC 265. Though in the said decision, no allegation of the commission of corrupt practice levelled, since pending case, the assembly itself was dissolved, the Hon'ble Supreme Court held that nothing further survives for consideration and accordingly dismissed the election appeal.
38. In the present case, as stated supra, admittedly, the first respondent submitted his resignation from the membership of the Manipur Legislative Assembly. Fresh notification for election for the 12th Manipur Legislative Assembly held. Therefore, the relief claimed by the petitioner has become infructuous.
39. It is the consistent view of the Hon'ble Supreme Court that the time of the Court is precious one and academic exercise is not warranted unless still some relief may be granted to petitioner may be followed. Though charge of corrupt practice was levelled Election Petition No. 7 of 2017 P a g e | 29 against the first respondent, the same is supported by material facts, apart from the fact that the act allegedly done by the first respondent on the date of occurrence would mean corrupt practice. Therefore, this Court finds that there is no impediment or obstacle in dismissing the election petition, as the prayer itself has become infructuous.
40. In view of the aforesaid discussion and in the light of the settled law of the Hon'ble Supreme Court, this Court is of the considered view that nothing further survives in this matter. Accordingly, the election petition is dismissed as having been rendered infructuous. There is no order as to costs.
41. Registry is directed to issue copy of this order to both the parties through their WhatsApp/email.
JUDGE FR/NFR Sushil Election Petition No. 7 of 2017