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Saturday, October 3, 2015

Section 86(7) of the Act reads as follows:- “86. Trial of election petitions – (1-6) xxxxx (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 of which the election petition is presented to the High Court for trial.”=… ‘At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper—no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point.’” 19. A voter casts his vote as a responsible citizen to choose the masters for governing the country. That being the trust of the electorate in an elected candidate, when he faces an assail to his election, it should be his sanguine effort to become free from the assail in the election petition and work with attainment and not take shelter seeking adjournments with the elated hope that he can be triumphant in the contest by passage of time. This kind of attitude has to be curbed from all angles because law does not countenance it. 20. We are absolutely conscious that in this case the election petitioner has also filed an application for early determination of the preliminary objection. The respondent, the elected candidate, has filed series of applications. We are of the convinced opinion that the election petition pending before the High Court has to be decided with extreme alertness and in quite promptitude. As the court has not framed issues, it shall proceed to frame issues. Thereafter, the evidence shall commence and the court shall, regard being had to the statutory command and the norms in a democratic polity, dispose of the election petition by end of February 2016. All the miscellaneous applications shall be decided at the time of final hearing so that the procrastination is totally ostracised. With the aforesaid observations and directions, the appeal stands disposed of. There shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.8063  of 2015
                        (@ SLP(C) NO. 15813 OF 2015)



Pukhrem Sharatchandra Singh       ...   Appellant

                                Versus

Mairembam Prithviraj @ Prithibiraj Singh ...       Respondent




                               J U D G M E N T



Dipak Misra, J.
      What ordinarily would have entailed dismissal  of  the  special  leave
petition treating it with loathe, regard being had  to  the  nature  of  the
order passed by the learned Single Judge in Misc. Case (E.P) No. 1  of  2012
in Election Petition No. 1 of 2012 as he had only adjourned the matter,  but
the chronology of events, the ultimate  consequence  that  would  emerge  by
efflux of time, the command of the provision contained in Section  86(7)  of
the Representation of the People Act, 1951 (for brevity, “the  Act”),  every
conceivable stand adopted in a  dexterous  manner  by  the  respondent,  the
elected  candidate,  harbouring  the  notion  that  he  singularly  has  the
intellectual imperialism, which has the  effect  potentiality  to  frustrate
and defeat the election trial, for the High Court has not even been able  to
frame issues lest proceed with the trial, has impelled us to  interfere  and
write a verdict.  It needs no special emphasis to state  that  causation  of
delay in the conclusion of the trial  of  an  election  petition  leaves  an
impression that the elected candidate has the skilfulness to enjoy his  full
term without  being  concerned  or  bothered  about  the  challenge  to  his
election.  As it appears, he does not perceive the pendency  as  hanging  of
the sword of Damocles or even if it is so, he believes that by his  hypnotic
power he can make it hang in the air so that the threat becomes totally non-
existent.  Either way, it depicts a sad state of things.
2.    The necessary facts.  The appellant, a resident of Phairembam  Leikai,
Morang located within the  27-Moirang  Assembly  Constituency  of  Bishnupur
District, Manipur, was a candidate in the 10th Manipur Legislative  Assembly
Election  from  he  said  Constituency.    The  election  for  the   Manipur
Legislative Assembly was held on 28.01.2012 and the appellant  contested  as
a candidate from the aforementioned  constituency  being  nominated  by  the
Nationalist  Congress  Party  (“NCP”  for  short).   The  respondent  became
successful in the election and was declared  as  a  member  of  the  Manipur
Legislative Assembly.  It is apt to note here that at the time of  scrutiny,
the appellant had objected to  the  nomination  of  the  respondent  as  per
Section 36(2) of the Act on the ground  that  he  had  failed  to  file  the
proper affidavit as prescribed under Article 173  of  the  Constitution  and
further the affidavit was a forged one inasmuch as he had falsely stated  at
paragraph 9 of the affidavit dated 06.01.2012 that his  highest  educational
qualification is MBA, and he had passed out from the Mysore  University  and
that apart the said affidavit also contained certain other facts which  were
incorrect and he had also not subscribed to the oath  before  the  Returning
Officer or any competent authority as prescribed by the Election  Commission
of  India.   The  Returning  Officer,  after  affording  an  opportunity  of
hearing, declined to reject the nomination.  After the  election  was  over,
the counting of votes took place and the  respondent  was  declared  as  the
elected candidate.
3.    The appellant  challenged  the  election  before  the  High  Court  of
Manipur at Imphal in Election Petition  No.  1  of  2012.   As  the  factual
narration would unveil, the respondent filed  the  written  statement  after
two years to the main election petition  and  during  the  pendency  of  the
election petition, the returned  candidate  filed  number  of  miscellaneous
applications.  It is pertinent to refer to the said applications, as Mr.  N.
Kumarjit,  learned  senior  counsel  for  the  appellant  has  laid  immense
emphasis them.  We think it appropriate, for the sake  of  completeness,  to
reproduce the same:-

“1.   Misc. Case (EP) No.1 of 2012 as preliminary objection  on  the  ground
of maintainability of Election Petition No. 1 of 2012 – filed on  27-06-2012
and the same is pending.

2.    Misc. Case (EP) No. 4 of 2012 for  amendment  of  his  application  in
Misc. Case (EP) No. 1 of 2012. The same is partly allowed on 06-02-2013.

3.    Misc. Case (EP) No.1  of 2013 for impleading the Returning Officer  of
the election and the same is rejected on15-04-2014.

4.    Misc. Case (EP) No. 5 of 2014 filed by the  respondent  for  amendment
of application in Misc. Case (EP) No. 4 of 2014 was also allowed  on  14-05-
2014.

5.    Misc. Case (EP) No. 4 of 2014 filed by the  respondent  for  condoning
the delay in filing the written statement was allowed on 02-06-2014.

6.    On 02-06-2014 filed another misc. application  i.e.  Misc.  Case  (EP)
No. 6 of 2014 for dismissing the Election Petition taking  the  ground  that
the Challan Copy for depositing cost under section 117 of the RP  Act,  1951
is not signed by the petitioner.  The same is pending.

7.    Misc. Case (EP) No. 8 of  2014  filed  for  condonation  of  delay  in
filing the misc. application again for amendment of  the  misc.  application
in Misc. Case (EP) No. 1 of 2012 was allowed on 09-09-2014.

8.    Misc. Case (EP) No. 9  of  2014  filed  for  amendment  of  the  Misc.
Application  third time in Misc. Case (EP) No. 1 of 2012 was allowed on  09-
09-2014.

9.    Misc. Case (EP) No. 10 of 2014 filed for  dismissal  of  the  election
petition on the ground that election petition is  incomplete  was  withdrawn
on 05-11-2014.

10.   On 14-01-2015 filed another misc. application  i.e.  Misc.  Case  (EP)
No. 1 of 2015 for dismissal of the election petition stating that  no  cause
of action is disclosed.  The same is pending.”

4.    At this juncture, it is relevant to mention that the High Court  while
dealing with M.C. No. 4 of 2012 whereby the respondent had sought  amendment
to his preliminary  objection  pertaining  to  the  maintainability  of  the
election petition had allowed the amendment except  the  proposed  amendment
in respect of paragraph  5(F).   Against  the  said  order,  the  respondent
preferred an appeal by special leave i.e. Civil Appeal No.  10599  of  2013.
This Court recorded the original stand and the amended one and came to  hold
as follows:-

“We have considered  the  entire  issue.   In  our  opinion,  the  aforesaid
amendment would in no manner change the nature of  the  plea  taken  by  the
appellant.  Reading of the entire paragraph 5 of  the  MC  (PE)  1  of  2012
clearly shows that the appellant has claimed that the Election  Petition  is
not signed by the election  petitioner/respondent  herein.   We,  therefore,
find merit in the submission made by Mr. Jaideep Gupta  that  the  aforesaid
amendment also has to be allowed in the interest of justice.

Consequently, the appeal is  allowed.   The  order  of  the  High  Court  is
modified to the effect that paragraph ‘F’ can also be amended,  as  proposed
by the appellant.”

5.    The said order was passed  on  19.11.2013.   It  is  asserted  in  the
memorandum of appeal that the respondent filed Misc.  Case  E.P.  No.  1  of
2013 for impleading the Returning Officer as respondent no.2  and  the  said
application has not been disposed of and the matter was  adjourned  on  many
an occasion.  This situation  compelled  the  election  petitioner  to  file
Misc. Case E.P. No. 2 of 2013 dated 11.12.2013 to hear the case  on  day  to
day  basis.  Eventually  on  3.4.2014,  the  respondent  filed  the  written
statement.
6.    As the case was not being taken up, as averred,  the  appellant  filed
an application forming the subject matter of Misc. Case E.P. No. 7  of  2014
to  dispose  of  the  election  petition  on  a  preliminary  issue  on  the
foundation that the respondent had filed a false affidavit while  submitting
his nomination papers which was evincible from the  admission  made  in  the
written statement.  The matter was adjourned from time to time.  Hence,  the
present appeal, by special leave, has been filed challenging the  manner  in
which it is conducted and the dilatory tactics ingeniously  adopted  by  the
respondent to procrastinate the hearing of the election petition.
7.    When the matter was listed  on  the  first  occasion,  we  had  issued
notice fixing a returnable date.  Despite service  of  notice,  no  one  has
entered appearance on behalf of the respondent.
8.    It is interesting to note that the election petition was taken  up  by
the High Court on 24.8.2015.  The learned Single  Judge  on  that  date  has
passed the following order:-
“When the matter has been put up for hearing today, it  has  been  submitted
by Mr. Iswarlal, learned counsel for the  respondent  that  the  respondents
have filed an  SLP  before  the  Hon’ble  Supreme  Court  being  S.L.P.  No.
15813/2015 and the  Hon’ble  Supreme  Court  has  fixed  on  23.09.2015  for
hearing and prays that the matters be taken up after disposal  of  the  said
SLP.

Mr. N. Kumarjit, learned senior counsel  for  the  petitioner  submits  that
since no stay order has been passed there is no impediment on  the  part  of
this Court to proceed with the Election Petition.   However,  Mr.  Kumarjit,
learned senior counsel seeks some time  to  take  necessary  instruction  in
this regard.  List these matters on 09.09.2015 as prayed by the parties.”

9.     We  have  reproduced  the  said  order  only  to  indicate  that  the
adjournment  was  sought  by  the  respondent  and  not  by   the   election
petitioner.  The adroit effort to cause delay is absolutely  manifest.    It
is submitted by Mr. N. Kumarjit, learned senior counsel  for  the  appellant
that despite the statutory provision contained in Section 86(7) of  the  Act
that 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, the same has not been kept  in  view  and  the  respondent  has  been
successful in getting the matter adjourned on numerous occasions  by  filing
variety of applications.  Learned senior counsel would further  submit  that
the respondent chose not to file the written statement  for  two  years  and
the intention is to see that the term is over.  He has  also  apprised  this
Court that issues have not been framed.
10.   Section 86(7) of the Act reads as follows:-
“86.  Trial of election petitions – (1-6) xxxxx
(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 of which the election petition is presented to the High  Court  for
trial.”

11.   While dealing with the role of Election Tribunal  and  the  conception
of disposal of a challenge to election, a three-Judge Bench in Satya  Narain
v. Dhuja Ram[1] has observed that:-
“Keeping  in  the  forefront  the  proper  functioning  of  democracy,   the
principal object of the Act is purity  of  elections.  When,  therefore,  an
election of a returned candidate is challenged under  the  Act,  expeditious
trial of the election dispute is sought to be enforced  by  the  Legislature
making all safeguards against delay. Trial has to be  necessarily  expedited
to rid the candidate as well as the constituency interested  in  the  result
of the election, of any taint or suspicion of corrupt  practices  which  are
again clearly enumerated in the Act. To take, therefore,  another  important
object of the Act viz. expeditious disposal  of  an  election  petition,  by
Section 86(b) “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”. Again  under  Section  86(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”.
Further Section 87(1) introduces the Civil Procedure Code  only  subject  to
the provisions of the Act and of any rules made  thereunder.  Section  87(2)
makes a deeming provision for application of the Evidence Act  only  subject
to the Acts. Therefore, there is no scope for free play in  the  application
of the provisions of those two Acts. The very object  of  expeditious  trial
will be defeated if the presentation of  the  election  petition  should  be
treated casually and lightly permitting all kinds of devices  to  delay  the
ultimate trial.  The  purpose  of  enclosing  the  copies  of  the  election
petition for all the respondents is to enable quick despatch of  the  notice
with the contents of the  allegations  for  service  on  the  respondent  or
respondents so that there is no delay in the  trial  at  this  very  initial
stage when the election petition is presented.  If  there  is  any  halt  or
arrest in progress of the case, the object of the  Act  will  be  completely
frustrated. We are, therefore, clearly of opinion that  the  first  part  of
Section 81(3) with which we  are  mainly  concerned  in  this  appeal  is  a
peremptory provision and total non-compliance  with  the  same  will  entail
dismissal of the election petition under Section 86 of the Act.”
                                                         [Emphasis supplied]

12.   In P. Nalla Thampy Thera v. B.L. Shanker[2], this Court while  dealing
with the justification of granting one adjournment opined as follows:-
“The High Court was justified in giving  only  one  adjournment  as  a  last
chance and fixing the trial on 9-3-1981, in view of  the  statutory  mandate
that an election petition shall be disposed of as far as practicable  within
six months from the  date  of  presentation  of  the  election  petition  as
required by Section 86(7) of the Act.”

13.   In F.A. Sapa v. Singora[3], another three-Judge Bench, in a  different
context stated that if the vexatious applications are entertained, it  would
defeat the very object of  expeditious  disposal  of  election  petition  as
envisaged in Section 86(7) of the Act.
14.   From the aforesaid authorities, it is quite  clear  that  an  election
petition has to be decided in quite promptitude as there  is  an  obligation
cast upon the Court to dispose of the same within a period  of  six  months.
Engrafting a provision in the nature  of  Section  86(7)  of  the  Act,  the
legislative intendment is clear that the Court has to endeavour  to  dispose
of an election petition as expeditiously as possible and not  to  allow  the
parties to  take  resort  to  unnecessary  adjournments  or  file  vexatious
applications.
15.   In the case at hand, as we have  stated,  the  elected  candidate  has
been taking time at his own pleasure and leisure and filing applications  as
he desired giving vent to his whim and  fancy  and  the  Court  has  granted
adjournment in an extremely liberal manner.  All the aspects  can  be  taken
exception to and they really run counter to the  conception  of  expeditious
disposal
16.   At this juncture,  we  may  state  without  any  hesitation  that  the
fundamental purpose for expeditious disposal of an election petition  is  to
sustain the purity of parliamentary democracy.  The  concept  of  purity  of
democracy has been emphatically stated in Rameshwar  Prasad  and  others  v.
Union of India and another[4].
17.   Recently, in Manoj Narula v. Union of India[5], majority view  in  the
Constitution Bench is to the following effect:-
“Democracy, which has been best defined as the government of the people,  by
the people and for the people, expects prevalence  of  genuine  orderliness,
positive propriety, dedicated discipline and sanguine sanctity  by  constant
affirmance of constitutional morality which is  the  pillar  stone  of  good
governance. While dealing with the concept of  democracy,  the  majority  in
Indira Nehru  Gandhi  v.  Raj  Narain[6],  stated  that  “democracy”  as  an
essential feature of the Constitution is unassailable.  The  said  principle
was reiterated in T.N. Seshan, CEC of India v. Union of India[7] and  Kuldip
Nayar v. Union  of  India[8].  It  was  pronounced  with  asseveration  that
democracy is the basic and fundamental structure of the Constitution.  There
is no shadow of doubt that democracy in India is a product of  the  rule  of
law and aspires to establish an egalitarian social order. It is not  only  a
political philosophy but also an embodiment of constitutional philosophy.”

18.   In Mohinder  Singh  Gill  v.  Chief  Election  Commissioner[9],  while
laying emphasis on fundamental values of democracy  which  includes  holding
of free and fair  election  by  adult  franchise  in  a  periodical  manner,
Krishna Iyer, J. quoted the statement of Sir Winston Churchill which  is  to
the following effect:-
“2. … ‘At the bottom of all tributes paid to democracy is  the  little  man,
walking into a little booth, with a little pencil, making a little cross  on
a little bit of paper—no amount of rhetoric  or  voluminous  discussion  can
possibly diminish the overwhelming importance of the point.’”

19.   A voter casts his vote as a responsible citizen to choose the  masters
for governing the country.  That being the trust of  the  electorate  in  an
elected candidate, when he faces an assail to his  election,  it  should  be
his sanguine effort to become free from the assail in the election  petition
and work with attainment and not take shelter seeking adjournments with  the
elated hope that he can be triumphant in the contest  by  passage  of  time.
This kind of attitude has to be curbed from all angles because law does  not
countenance it.
20.   We are absolutely conscious that in this case the election  petitioner
has also filed an application for early  determination  of  the  preliminary
objection.  The respondent, the  elected  candidate,  has  filed  series  of
applications.  We are of the convinced opinion that  the  election  petition
pending before the High Court has to be decided with extreme  alertness  and
in quite promptitude.  As the court has not framed issues, it shall  proceed
to frame issues.  Thereafter, the evidence  shall  commence  and  the  court
shall, regard being had  to  the  statutory  command  and  the  norms  in  a
democratic polity, dispose of the  election  petition  by  end  of  February
2016.  All the miscellaneous applications shall be decided at  the  time  of
final hearing so that the procrastination is totally ostracised.
21.   With the aforesaid observations  and  directions,  the  appeal  stands
disposed of.  There shall be no order as to costs.

                                             .............................J.
                                                               [Dipak Misra]



                                             ..........................., J.
    [Prafulla C. Pant]
New Delhi
October 01, 2015
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[1]     (1974) 4 SCC 237
[2]     (1984) Supp. SCC 631
[3]     (1991) 3 SCC 375
[4]     (2006) 2 SCC 1
[5]     (2014) 9 SCC 1
[6]     1975 Supp SCC 1
[7]     (1995) 4 SCC 611
[8]     (2006) 7 SCC 1
[9]     (1978) 1 SCC 405

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