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2013 Supreme(Gau) 504
IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
Sri C.C. Singpho – Appellants
Vs.
Khumral Lungphi and Sri Siraiong Singpho – Respondent
Misc. Case 3253/2010 in Election Petition 4/2009
Decided On: 22.08.2013
For Appellant/Petitioner/Plaintiff:Mr. K. Agarwal and Mr. D. Mazumdar, Advocates
For Respondents/Defendant:Mr. S. Bhattacharjee, Advocate
Headnote:
Representation of the People Act, 1951 - Sections 80, 80A r/w 81, 100 and 123(7) - Election Rules, 1961 - Code of Civil Procedure, 1908 - Order VI Rule 16 read with Order VII Rule 11 - Election petition - Non-compliance of issuance of certificate - Seeking striking out of pleadings in election petition and rejecting, election petition itself - Held, It is, no doubt, true that averments, made, at para 30, by the election petitioner, are to effect that in respect of each candidate, Part II of Form 17C is required to be completed in all respects and has to be signed by counting supervisor and also by candidates, their election agents and their counting agents; whereas, in present case, none of aforementioned provisions was adhered to and, in fact, these provisions were totally violated as no Part II of Form 17C was either shown nor signature of election petitioner, his election agent or counting agents was taken thereto - Because of non-compliance of issuance of certificate, in question, in terms of result of counting, one cannot help but hold that result of election, in the present case, must be held to have been materially affected or else, resultant effect would be that if by any means, hook or crook, a person either manages to obtain, or accidentally or inadvertently happens to receive, a certificate of victory in his favour, his election would remain untouched - Such a proposition would be wholly irrational - Miscellaneous Application dismissed.
Iqbal Ahmed Ansari, J.
1. With the help of an election petition, made under Sections 80 and 80A read with Section 81 of the Representation of the People Act, 1951, (in short, the 'ROP Act'), the opposite party herein, as election petitioner, has called in question the election of the present applicant (who, stands, now, impleaded, in the election petition, as respondent No. 1) to the Arunachal Pradesh Legislative Assembly from 49 Bordumsa-Diyun (General) Legislative Assembly Constituency, the election petition having given rise to Election Petition No. 4/2009. It is in this election petition that the present Miscellaneous Application has been made, under Order VI Rule 16 read with Order VII Rule 11 of the Code of Civil Procedure, seeking striking out of the pleadings in the election petition and rejecting, thereafter, the election petition itself.
2. In the election petition, the election petitioner, i.e., the opposite party herein, has prayed for:
(i) Order for recounting of the votes recorded in EVMs used in the impugned election.
(ii) On recounting, if the results are in favour of the Election Petitioner, be further pleased to
(iii) Declare the election of the respondent No. 2, the returned candidate from Bordumsa-Diyun Legislative Assembly Constituency to be void under the mandate of the Representation of Peoples Act, 1951 and the Conduct of Election Rules, 1961.
3. Before coming to the grounds seeking striking out of the pleadings and rejection of the election petition, it is pertinent to point out that Sections 80 and 80A of the ROP Act provide for presentation of the election petitions, Section 82 of the ROP Act provides for parties to the election petition and Section 83 of the ROP Act provides for the contents of the election petition. Section 83, being material, is reproduced below:
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
(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.
4. A bare perusal of Section 83 will clearly show that an election petition shall contain a concise statement of the material facts on which the petitioner relies. Section 83 also provides that an election petition shall be signed by the election petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, (in short, 'the Code') for the verification of pleadings. Section 83 further provides that any Schedule or Annexure to the election petition shall also be signed by the election petitioner and verified in the same manner as the election petition.
5. Coupled with the above, the proviso to Section 83 makes it clear that where the election 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. Since there are no allegations of corrupt practice, the applicant refrains from dealing with proviso to Section 83 of the ROP Act.
6. Chapter III of the ROP Act embodies provisions for trial of election petitions. As regards trial of election petitions, Section 87 provides that subject to the provisions of the ROP Act and the Rules made thereunder, every electi
