Supreme Court of India
Markio Tado vs Takam Sorang on 10 May, 2013
Equivalent citations: AIR 2013 SUPREME COURT 3202, 2013 (7) SCC 524, 2013 AIR SCW 3545, (2014) 1 CIVLJ 223, AIR 2014 SC (CIVIL) 205, (2013) 127 ALLINDCAS 47 (SC), (2013) 3 ALLMR 274 (SC), (2013) 4 ALLMR 447 (SC), (2013) 5 ALL WC 4960, (2013) 5 GAU LT 18, 2013 (3) SCC (CRI) 597, 2013 (4) ALLMR 447, 2013 (3) ALLMR 274, 2013 (7) SCALE 205, 2013 (127) ALLINDCAS 47, 2013 (99) ALL LR 17 SOC, (2013) 7 SCALE 205
Author: H.L. Gokhale
Bench: H.L. Gokhale, G.S. Singhvi
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 8260 OF 2012
Markio Tado ... Appellant
Versus
Takam Sorang ... Respondents
J U D G E M E N T
H.L. Gokhale J.
This statutory appeal under Section 116A of the Representation
of the People’s Act, 1951, seeks to challenge the judgment and order of the
Gauhati High Court dated 12.11.2012, allowing the Election Petition No.
1(AP) of 2009, renumbered as Election Petition No. 1 (AP) of 2012, filed by
the Respondent No. 1 whereby the election of the appellant from 20-Tali
(ST) constituency of the Arunanchal Pradesh Assembly was declared void, and
whereby the first respondent was declared elected to the State Legislative
Assembly from the said constituency. After passing of the said judgment
and order, the appellant applied for the stay of the said order, and the
learned Judge by his order dated 16.11.2012 stayed the impugned judgment
and order for a period of 14 days from the date of the said order. He made
it clear that the appellant will have the right to participate in the
assembly proceedings but will not have the right to vote and will not be
entitled to any remuneration as an elected member of the assembly. This
appeal, therefrom, was admitted on 27.11.2012, and by the order passed on
that date by this Court, the above order dated 16.11.2012 was directed to
continue to remain in operation. This interim order has been subsequently
continued until further orders.
2. Facts leading to this appeal are as follows. The appellant and
the respondent No. 1 herein contested the election to the Arunachal Pradesh
Legislative Assembly from 20-Tali (ST) Assembly Constituency held in
October 2009. The respondent no.1 was the sitting MLA from the said
constituency at the time when the election was held, and the Government
formed by the Indian National Congress was in power in the State. The
appellant was a candidate of the People’s Party of Arunanchal Pradesh
(PPA), and the first respondent was that of the Indian National Congress.
The voting took place on 13.10.2009, and the appellant was declared elected
on 22.10.2009, defeating his nearest rival the respondent No. 1, by 2713
votes. Respondent No. 1 filed Election Petition No. 01/2009 to challenge
the election of the appellant on the ground of corrupt practice of booth
capturing.
3. This 20-Tali (ST) Assembly Constituency consists of two circles
viz. (i) Tali, and (ii) Pipsorang. Each of the circles was having 10
polling stations. It was alleged in the petition by the first respondent
that on two polling stations viz. (i) 7-Roing and (ii) 2-Ruhi from circle
Tali, boxes (containing EVMs) were illegally removed by the party workers
of the appellant, and votes in favour of the appellant were cast single
handedly. The genuine voters were not allowed to exercise their voting
rights as they were threatened for their lives by the miscreants of the
appellant. It was claimed that polling agents of the first respondent, at
these two polling stations, jointly reported about the happenings in these
polling stations on 15.10.2009, to the Assistant Returning Officer. It was
further alleged that such incidents also took place in 6 more polling
stations.
4. It was stated in para 9 of the petition, that it was necessary
to bring the EVMs and counter foils of Form 17A (register of voters) of
these 8-polling stations (mentioned in para-7 of the petition) for forensic
test and other examinations etc. before the Hon’ble Court for proper
adjudication of the case. It was claimed that the votes received by the
appellant in these 8 polling stations were 3763, and if they were deleted
from the votes of appellant, the first respondent would be declared as
elected. It was prayed that the records of (i) register of voters
counterfoils (Form 17-A) of these 8 polling stations described in paragraph
7 of the petition, (ii) EVMs of these 8 polling stations, and (iii) records
relating to 20 Tali (ST) Assembly Constituency be called, and the appellant
be directed to show cause as to why votes cast by booth capturing in 8
polling stations, in favour of the appellant, should not be declared as
illegal, and the election order dated 22.10.2009 not be declared as void,
and why the respondent No. 1 should not be declared as the elected
candidate.
5. The petition was contested by the appellant by filing a Written
Statement. He submitted that no unfair means were employed by him, or by
his agents, and stated that the allegation of illegal practice adopted in 8
polling stations is completely false. He submitted that the election was
conducted peacefully with free and fair means. The polling stations were
guarded by police personnel who carried arms and ammunition. There was no
booth capturing or criminal intimidation at all. EVMs and voters’
counterfoils were duly verified at the Receiving Centre, and there was no
need to call for any of these documents, nor was there any question to
declare the election void.
6. Thereafter, the learned Judge by his order dated 8.3.2010
formulated the following issues:- (i) Whether the Election Petition is
maintainable?; (ii) Whether the polling team of 7-Roing polling station
alongwith the EVM were kidnapped on 12.10.2009 by PPA Workers?; (iii)
Whether booth capturing was committed at 2-Ruhi and 5-Guchi polling
stations on 13.10.2009 by PPA workers, including the Petitioner?; (iv)
Whether any offence of booth capturing was committed at any of the other 5
polling stations; (v) Whether Annexures 1 to 9 to the Election Petition are
forged, fabricated and an afterthought?; (vi) Whether the election of the
returned candidate Markio Tado is liable to be declared void?; and (vii)
Whether the Election Petitioner is entitled to be declared elected?
7. It is relevant to note that, before the evidence could start,
the first respondent filed Interlocutory Application No. 6 of 2010 in the
said Election Petition on 29th March, 2010. In para 1 thereof he submitted
as follows:-
“1. That your applicants beg to state and submit that some
thousand of voters of those 8 polling stations viz. (i) Giba, (ii)
Tungmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5-Guchi,
(vii) 8-Dotte, (viii) 2-Ruhi of 20 Tali (ST) Assembly Constituency
have double entry in different 38 polling stations of 13-(ST) Itanagar
Assembly Constituency. So far your applicant knowledge is concerned
about 80% of the voters of 20-(ST) Tali Assembly Constituency from
those 8 polling stations viz. (i) 6-Giba, (ii) 4-Tugnmar, (iii) 15-
Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5-Guchi, (vii) 8-Dotte,
(viii) 2-Ruhi have cast their votes at 13-(ST) Itanagar Assembly
Constituency and not at 20-(ST) Tali Constituency.”
Thereafter, he gave the list of 38 polling stations of Itanagar
constituency. He claimed that the total number of such voters, who had
their names in those 38 polling stations, was 1304. He, therefore, prayed
that the record of register of voters counterfoils (Form 17-A) of the above
38 polling stations of 13-(ST) Itanagar Assembly Constituency from the
District Returning Officer, Distt. Papum Pare be called.
8. This application was opposed by the appellant. The learned
Single Judge noted the submissions on behalf of the respondent No. 1. He
also noted the submissions on behalf of the appellant that there was no
allegation of double enrollment, and no issue had been framed in this
respect in the election petition, and therefore the application was liable
to be dismissed. Having noted the submissions, the learned Single Judge
rejected the said application by his order dated 31.03.2010 observing “I am
of the considered view that calling of records as sought for by the
applicant is not justified at this stage.”
9. When the evidence was recorded, PW (1) stated that 1 person
voted for another person. PW (2) stated that she was not allowed to enter
the polling station, and yet she stated that there was single handed
voting. PW (3) was the polling agent of the respondent No. 1, but he did
not state that he lodged any complaint about whatever had happened at the
polling station. PW (4) stated that he was not allowed to enter the
polling station. He stated that the workers of both the parties were not
allowed to enter the polling station, but at the same time he said that the
polling agents of both the parties were inside the polling station. He has
filed no complaint. PW(5) made some interesting statements. He stated
that he was the agent of the Indian National Congress, and he was forced to
vote for his candidate. He also stated that he did not file any complaint
with the presiding officer. PW (6) also made similar interesting
statements in the sense that it was proposed that a few votes be casts in
favour of Indian National Congress. It is relevant to note that at the
polling station, where he cast his vote, Indian National Congress got 42
votes. PW (7) was the polling agent of the first respondent at the Roing
polling station. He claims to have lodged the complaint, but he does not
know who wrote that complaint. PW (8) stated in his cross-examination that
he does not know whether any polling officer was kidnapped. PW (9) makes
an interesting statement that he was forced to cast some votes for the
Indian National Congress.
10. Thereafter, the first respondent PW (10) went into the witness
box on 4.4.2010. In his examination in chief, he stated that he had sent a
fax message to the Returning Officer of 20-Tali (ST) Assembly Constituency
on 15.10.2009 alleging the booth capturing of 2-Ruhi and 7-Roing polling
stations. He stated that he had complained about the booth capturing in 6
more polling stations, and produced copies of complaints. He stated that
there was single handed voting in favour of the appellant, and first
respondent’s voters were threatened and not allowed to cast their votes.
He further stated that a large number of voters had double entries in the
electoral roll of 20 Tali (ST) as well as Itanagar (ST) Assembly
Constituency. They had actually cast their votes at 38 different polling
stations of 13-(ST) Itanagar Assembly Constituency, and in their place
votes were cast in Tali Constituency by the miscreants of the appellant.
The electoral rolls of the two constituencies were to be exhibited. He
further pointed out that a vote was cast against a dead person by name
Markio Tama from 2-Ruhi polling station, and the death certificate of the
person concerned was produced.
11. The first respondent, in his cross examination on 9.6.2010,
accepted that he had not made any averments in the election petition
regarding double enrollment of the voters in the two Assembly
Constituencies. He accepted that he was aware that the final electoral
rolls were published by the authorities concerned before the election was
held, prior to which the draft roll was published for information of the
voters concerned, and that he did not lodge any complaint before the
authorities concerned about the double enrollment in the two
constituencies. He explained it by stating that he did not know that such
double enrollment had taken place. He could not say who actually cast the
vote for Markio Tama, who had already expired.
12. The first respondent accepted that he had appointed his polling
agents for all the polling stations. He knew about the duties of the
polling agents which included raising objection in case of detection of any
impersonation during the polling time, before the Presiding Officer
concerned by filling up a prescribed form alongwith a fee of Rs. 2/-. He
stated that his polling agents were not allowed to enter into the polling
booths, and the candidates appointed by the appellant acted as fake polling
agents for the first respondent. He however, accepted that he has not
stated in election petition that the candidates appointed by the opposite
party had acted as fake polling agents for him. He further accepted that
his complaint to the Returning Officer did not mention all the 8 polling
stations. It mentioned only about 2 polling stations. He also accepted
that he did not mention the names of persons involved in booth capturing.
He stated in his examination-in-chief itself as follows-
“I have no direct evidence regarding casting of votes by
impersonation by the booth capturing party but it can be proved if the
finger prints and thumb impression taken and the signatures put in
Form 17A of the respective polling station are compared by the
respective votes.”
13. The first respondent had alleged that in two polling stations
viz. Ruhi and Roing, booth capturing had taken place which was on the basis
that in Ruhi the first respondent got only 3 votes as against appellant
getting 697 votes, and in Roing he got only one vote as against the
appellant getting 1196 votes. On this aspect, it was put to him that there
were two circles in this constituency viz. Tali and Pipsorang. The above
two polling stations were in Tali Circle. The first respondent accepted
that the returned candidate secured no vote in 11-Vovia polling station.
He also accepted that the returned candidate secured only 7 votes in 13-
Zara polling station, both falling in Pipsorang circle. Thereafter, he
accepted that
“It may be correct that securing less vote by a candidate may be
due to his less attachment to the people of a particular area and it
may also be the one of the reasons for losing the election.”
The first respondent also accepted that Micro Observers were
appointed in all the polling stations and they were provided with digital
cameras for their use, as and when required during the election, for all
the purposes.
14. It was at that stage that the first respondent moved another
application viz. Misc. Case No. 05(AP) of 2010 on 29th June, 2010. In that
application he repeated that some of the voters of the 8 polling stations
mentioned earlier, had double entries in different 38 polling stations of
13 Itanagar (ST) Assembly Constituency. In para 2 he stated that 30% of
voters of Tali Constituency, from those 8 polling stations, had cast their
votes in Itanagar and not in Tali, and in their place the double voting was
effected on behalf of the appellant, and therefore it was necessary to get
the record of the voters’ counterfoils (in Form 17A) from the 38 polling
stations under 13-(ST) Itanagar Assembly Constituency. The appellant
opposed this application. The counsel for the appellant submitted that
this was a fishing inquiry to improve the case. This time however, the
learned Judge observed:
“This allegation sounds to be new one, but when it is closely
examined, it also comes under the purview of booth capturing because
votes by impersonation is one of the modus operandi adopted towards
accomplishment of securing votes by use of illegal method or illegal
resource.”
15. The learned Judge referred to a judgment of this Court in Hari
Ram Vs. Hira Singh reported in AIR 1984 SC 396, that electoral rolls and
counter foils should be called sparingly, and only when sufficient material
is placed before the Court. He also referred to a judgment of this Court
in Fulena Singh Vs. Vijoy Kr. Sinha reported in 2009(5) SCC 290 wherein it
was held that inspection of the record of register of voters in Form 17-A
would be permissible where a clear case is made out. The learned Judge
held that the official record would be the most reliable evidence to decide
as to whether there was impersonation, and thereafter passed the order
calling for the record of registers of voters’ counterfoils in form 17A
from 38 polling stations of 13-(ST) Itanagar Assembly Constituency, which
order was challenged by the appellant by filing one SLP earlier.
16. This earlier petition was numbered as Civil Appeal No. 1539 of
2012 which came to be decided by this Court on 2.12.2012. It was pointed
out on behalf of the appellant that the Election Petition was filed on the
basis of corrupt practice of booth capturing, and what was being canvassed
on behalf of the respondent No. 1 was the allegation of
impersonation/double voting on the part of the appellant. It was submitted
on behalf of the appellant that booth capturing is a specific corrupt
practice under section 123 (8) read with section 135A of 1951 Act. Booth
capturing involves use of force, whereas impersonation or double voting is
on the basis of deception. This submission was accepted by this Court.
This was apart from the fact that impersonation or double voting would lead
to improper reception of votes, which is another ground for declaring an
election to be void under section 100 (1) (d) (iii) of the Act, and this
ground was not pleaded in the petition nor was any issue framed thereon for
trial. It was canvassed on behalf of the appellant that double voting or
impersonation could not be considered as facets of booth capturing which
was also accepted by this Court.
17. This Court while deciding Civil Appeal No. 1539 of 2012 noted
that there was hardly any evidence to justify any plea of impersonation or
double voting. Therefore, this Court held in the said appeal, that it was
thus obvious that having failed to place any material with respect to
either booth capturing or impersonation, the first respondent was trying to
make fishing and roving inquiry to improve his case by calling for the
record of the voters register from Itanagar Constituency, in support of his
grievance of double voting. In the absence of any evidence with respect to
the persons who, at the instance of the appellant, allegedly captured the
booths or made double voting or impersonation in Tali Constituency, no such
inference could have been drawn. The learned Single Judge, therefore, was
clearly in error in allowing the second application made by the first
respondent.
18. As seen from the above, the learned Judge while deciding Misc.
Case No.5(AP) of 2010 had relied upon the judgment of this court in Fulena
Singh (supra) to justify his direction to produce the record of register of
voters’ counterfoils in Form 17-A of 38 polling stations of 13-(ST)
Itanagar constituency. This court, therefore, while deciding Civil Appeal
1539 of 2012 explained the judgment in Fulena Singh, and the correct legal
position with respect to the production of such records in court. It
referred to the Constitution Bench judgment of this court in Ram Sevak
Yadav v. Hussain Kamil Kidwai, reported in AIR 1964 SC 1249, which has held
that an order for inspection cannot be granted as a matter of course having
regard to the secrecy of the ballot papers. To seek such an order two
conditions are required to be fulfilled:
(i) that the petition for setting aside an election contains an
adequate statement of the material facts on which the petitioner
relies in support of his case; and
(ii) the tribunal is prima facie satisfied that in order to decide
the dispute and to do complete justice between the parties inspection
of the ballot papers is necessary.
But an order for inspection of ballot papers cannot be made to support
vague pleas made in the petition, not supported by material facts, or to
fish out evidence to support such pleas. In the present case, there was no
material whatsoever to justify the production of the register of
counterfoils of votes in Form 17-A and therefore, this court allowed the
said Civil Appeal and dismissed Misc. Case (EP) No. 05 (AP) of 2010 by
judgment and order dated 2.2.2012
19. Facts which had come on record clearly showed that the first
respondent received overwhelming votes in some polling stations, whereas
the appellant received similarly overwhelming votes in other polling
stations. The first respondent had in fact accepted that it depended on
the popularity of the candidate whether he would receive more votes in any
particular voting station. Assuming that the ground of improper reception
of votes could be raised for declaring the election to be void under
section 100 (1) (d), this Court noted in the decision of C.A No. 1539 of
2012 as follows:-
“28. Besides, the ground of improper reception requires a
candidate to show as to how the election in so far as it concerns
the returned candidate was materially affected, in view of the
requirement of Section 100 (1) (d) of the Act of 1951. First
respondent has stated that there were some 1304 double entries of
voters. The allegation of respondent No.1 on evidence was only
with respect to Roing and Ruhi polling station. The votes
received by the appellant in both these polling stations put
together come to 1873. The appellant has won with a margin of
2713 votes. That being so the second application could not have
been entertained even on that ground in the absence of prima facie
case that the result of the election had been materially
affected.”
20. Therefore, this Court went into the issue as to whether the
record of the voters’ counterfoils in Form 17 (A) from 38 polling station
of 13 Itanagar (ST) Assembly Constituency could be called. It examined the
relevant provisions of Rule 93 of Conduct of Elections rules, 1961 and the
judgments governing the field, and held in this matter also as in Ram Sevak
Yadav (supra), that an order for inspection of ballot papers could not be
granted to support the vague pleas made in the petition not supported by
material facts or to fish out the evidence to support such pleas. This
Court therefore, allowed that appeal and set aside the judgment and order
dated 14.9.2010 and dismissed Misc. Case No. 5 (AP)/2010 dated 29.6.2010.
The judgment in Civil Appeal 1539 of 2012 in Markio Tado Vs. Takam Sorang
and Ors. is reported in 2012 (3) SCC 236.
21. In this background when the matter proceeded further there was
no occasion for the Court to once again call for that record. The learned
Judge still passed an order on 19.3.2012 on Misc. Case (EP) 06 (AP) of 2010
holding that:-
“it is considered expedient to send the registers of voters (Form
17A) which were already procured from the District Election Authority
under sealed cover to the Director of Regional Forensic Science
Laboratory (FSL), Police Training Centre, Banderdewa, Arunachal Pradesh
requesting him to conduct scientific examination and verification of
signatures/finger prints appearing in Form 17A and to ascertain as to
whether the thumb impression and signatures contained and recorded in
Form 17A (voters register) were put single handedly and fraudulently by
few persons as a measure of impersonation of the genuine voters
concerned and after such scientific examination/verification to submit
report to the Registry of this Court is sealed cover within 3rd of May,
2012. The registry was directed to take steps accordingly.
This order dated 19.3.2012 passed by the learned Judge was challenged by
the appellant by filing Special Leave Petition 12707 of 2012, by pointing
out that such an order could not be made in the teeth of the judgment and
order rendered by this Court in Civil Appeal No. 1539 of 2012. However, the
appellant, preferred to withdraw the SLP No. 12707 of 2012 subsequently,
with a liberty to agitate the questions raised therein, if required, when
the main Election Petition was decided.
22. The learned Judge proceeded to examine court witnesses
including finger print expert, CW3. Thereafter, the court examined the
defence witnesses, and after hearing the arguments of the counsel for both
the parties allowed the Election Petition, and held that the election of
the petitioner was void. On the basis of the calculations of votes made by
the learned judge, he held that the first respondent had received more
votes, and therefore, declared him as elected from the constituency
concerned. It is this order which is under challenge.
23. Now, as can be seen from the narration above, the Election
Petition was filed only on the ground of booth capturing. The respondent
No. 1 himself accepted that he could not name any person involved in the
act of booth capturing. The evidence on record clearly showed that, apart
from some allegations, there was no material evidence placed in support
thereof. The petitioner tried to claim impersonation and double voting as
a facet of booth capturing. This submission was already rejected by this
Court while deciding C.A No. 1539 of 2012 (supra) by holding that
impersonation and double voting would amount to deception and it will be a
facet of improper reception of votes and not booth capturing. Booth
capturing involves use of force and that was not established. The petition
was not filed on the ground of improper reception of votes. Even if that
ground was to be looked into, the respondent No. 1 accepted in his evidence
that he had no direct evidence regarding casting of votes by impersonation.
24. The learned judge has clearly transgressed the limits of his
jurisdiction, by going into the exercise of calling for the handwriting and
finger print experts, and comparing the voters’ signatures and finger
prints with the help of the records in Form 17A, when that was clearly held
to be impermissible in the present case itself. This is apart from the fact
that this has resulted into a waste of the time of the Court, which is so
precious. The evidence was recorded on a number of dates and so many
witnesses, including public officers, were called when their evidence was
not required. It would be relevant to refer to the observations of this
Court in paragraph 12 of Azar Hussain v. Rajiv Gandhi reported in AIR 1986
SC 1253 in the context of rejecting an election petition summarily, at the
threshold, where such a case is not made out. The observations are to the
following effect,
“12. Learned counsel for the petitioner has next argued that in
any event the powers to reject an election petition summarily under
the provisions of the Code of Civil Procedure should not be exercised
at the threshold. In substance, the argument is that the court must
proceed with the trial, record the evidence, and only after the trial
of the election petition is concluded that the powers under the Code
of Civil Procedure for dealing appropriately with the defective
petition which does not disclose cause of action should be exercised.
With respect to the learned counsel, it is an argument which it is
difficult to comprehend. The whole purpose of conferment of such
powers is to ensure that a litigation which is meaningless and bound
to prove abortive should not be permitted to occupy the time of the
court and exercise the mind of the respondent. The sword of Damocles
need not be kept hanging over his head unnecessarily without point or
purpose. ………..”
(emphasis supplied)
25. The judge clearly ignored that the law declared by this Court
is binding on all courts within the territory of India under Article 141 of
the Constitution of India, and judicial discipline required him to follow
the mandate of the Constitution. He entered into an impermissible
exercise, and deleted the votes received by the appellant which he
considered to be tainted votes. It is quite shocking to see that the
learned judge has proceeded to delete the votes of the appellant from 8
polling stations, although the grievance was only about Ruhi and Roing
polling stations. By making these deductions, he came to the conclusion
that the respondent No. 1 had received 826 votes more. As can be seen from
paragraph 28 of the judgment, rendered in Civil Appeal No. 1539 of 2012,
that at best the case of the first respondent was that there were double
entries of voters in 1304 names. The allegation was only with respect to
two polling stations. In those polling stations, the appellant had
received 1873 votes. Even if these 1304 votes were to be deleted, it would
not affect the result materially since the appellant had won with a margin
of 2713 votes. The learned judge, therefore, ignored that even if the
ground of improper reception of votes under section 100(1)(d)(iii) was to
be taken, the respondent no.1 had failed to establish that the result of
the election of the appellant had been materially affected by such improper
reception of votes. The decision of the learned judge was therefore
clearly flawed and untenable.
26. Thus, the learned judge went into the counterfoils of the
voters inspite of the fact that this court had already ruled in the
judgment in C.A. 1539 of 2010, that in the facts of the present case, no
case was made out for calling of the counterfoils. It is not that he was
unaware of the judgment rendered by this court. He referred to this
judgment in Para 9(i) by stating that CA No. 1539 of 2010 was preferred
against his judgment and order dated 14.9.2010. Thereafter, he specifically
noted “the said Civil Appeal was allowed vide judgment and order dt.
2.2.2012 dismissing the aforesaid M.C. (EP) No. 5 (AP) of 2010 under
Section 83(1) of the R.P. Act as reported in (2012) 3 SCC 236.”
Thereafter, however he proceeded to act exactly contrary to the direction
emanating from the dismissal of M.C. (EP) No. 5 (AP) of 2010, which amounts
to nothing but judicial indiscipline and disregard to the mandate of
Article 141 of the Constitution of India. This is shocking, to say the
least, and most unbecoming of a judge holding a high position such as that
of a High Court Judge. We fail to see as to what made the judge act in such
a manner, though we refrain from going into that aspect.
27. Before we conclude, we may state that it is unfortunate that
such acts of judicial impropriety are repeated inspite of clear judgments
of this court on the significance of Article 141 of the Constitution. Thus,
in a judgment by a bench of three judges in Dwarikesh Sugar Industries Ltd.
v. Prem Heavy Engineering Works (P) Ltd. and Anr., reported in (1997) 6 SCC
450, this court observed,
“32. When a position, in law, is well settled as a result of
judicial pronouncement of this Court, it would amount to judicial
impropriety to say the least, for the subordinate courts including the
High Courts to ignore the settled decisions and then to pass a
judicial order which is clearly contrary to the settled legal
position. Such judicial adventurism cannot be permitted and we
strongly deprecate the tendency of the subordinate courts in not
applying the settled principles and in passing whimsical orders which
necessarily has the effect of granting wrongful and unwarranted relief
to one of the parties. It is time that this tendency stops.”
We may as well refer to Para 28 of the State of West Bengal & Ors. v.
Shivanand Pathak and Ors., reported in (1998) 5 SCC 513, wherein this court
observed,
“If a judgment is overruled by the higher court, the judicial
discipline requires that the judge whose judgment is overruled must
submit to the judgment. He cannot, in the same proceedings or in
collateral proceedings between the same parties, rewrite the overruled
judgment…”
28. In the circumstances, we have no option but to allow this
appeal and set aside the impugned judgment and order rendered by the
learned judge of Gauhati High Court dated 12.11.2012. The Election
Petition filed by the respondent no. 1, bearing Election Petition No. 1(AP)
of 2009, renumbered as Election Petition No. 1 (AP) of 2012, shall stand
dismissed. The parties will bear their own costs.
…………..……………………..J.
( G.S. Singhvi )
…………………………………..J.
( H.L. Gokhale )
New Delhi
Dated: May 10, 2013
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