Supreme Court of India
Kimneo Haokip Hangshing vs Kenn Raikhan on 13 September, 2024
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
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2024 INSC 689 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(Arising Out of Special Leave Petition (C) No. 20580 of 2023)
KIMNEO HAOKIP HANGSHING …APPELLANT
VERSUS
KENN RAIKHAN & ORS. …RESPONDENTS
JUDGMENT
SUDHANSHU DHULIA, J.
Leave granted.
2. The appellant before this Court is a Member of Legislative
Assembly (hereinafter “MLA”) and was elected from the 46-Saikul
Assembly Constituency in the 12th General Elections to the
Manipur Legislative Assembly, which were held in 2022.
Signature Not Verified
Digitally signed by
Nirmala Negi
Date: 2024.09.13
15:50:23 IST
Reason:
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The respondent, who was also a contestant from the same
seat, filed an Election Petition before the High Court of Manipur
challenging the result of the election on the grounds that the
appellant has not disclosed her assets in her nomination papers
and that she had indulged in “corrupt practices” in the election.
The appellant filed an application under Order VII Rule 11 of the
Code of Civil Procedure, 1908 (“CPC”) read with Section 86 of the
Representation of the People Act, 1951 (“RPA”) for rejection of the
petition, which was dismissed. The application dismissed by the
High Court on 05.07.2023 is presently under challenge before this
Court.
3. The respondent in his Election Petition inter alia raised the
following grounds in challenge to the election of the appellant:
“(1) Because the [appellant] has been declared as
the returned/successful candidate by improperly
accepting the nomination paper despite the
concealment of the asset and investment of about
Rs. 2 crore for land development in the said
property of land and construction inside the
agricultural land mentioned in her Form 26
affidavit…
(2) Because the [appellant] had concealed her total
income for Financial Year 2021-22 and shown as
Rs. 0 even though she was serving as Committee
Officer at Secretariat of Manipur Legislative
Assembly till 31.12.2021.”
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4. Before the High Court, the present appellant then moved an
application under Order VII Rule 11 for rejection of the petition on
the grounds that it does not disclose any cause of action as it does
not specify any corrupt practices alleged to have been committed
by the appellant, nor is there any averment regarding concealment
of her income/assets. Therefore, the Election Petition does not
comply with the requirements of Section 83 of RPA and ought to
be dismissed at the threshold.
5. The High Court vide the impugned order held that whether
the appellant had any income or not and whether he had given a
wrong declaration at the time of his nomination needs to be looked
into in trial for which evidence has to be led by the parties and
examined by the Court. The petition cannot be dismissed under
Order VII Rule 11 application. Consequently, the application under
Order VII Rule 11 filed by the appellant was dismissed. Aggrieved,
the appellant is now before us.
6. Section 83 of the RPA is reproduced below:
“(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
4alleged 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.”
(emphasis supplied)A perusal of the section shows that an Election Petition
should, inter alia, contain a concise statement of material facts and
particulars of any corrupt practices which is alleged against the
returned candidate, etc. Further, the Proviso to Section 83(1) of
the Act requires that the Election Petition shall also be
accompanied by an affidavit in prescribed form to support the
allegations of corrupt practices.
7. Over the years, Election Petitions have been filed invariably
on the grounds which are similar to the ones raised before this
Court.
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The only question is whether the Court can dismiss such a
petition at the very threshold on an application under Order VII
Rule 11 CPC or that the petition needs a detailed consideration by
the Court. The answer to this will depend upon what kind of
statutory compliances have been made in the Election Petition.
The case of the present appellant before this Court is that if
the provisions as referred above, wherein material details have to
be given by the respondent and particularly the details of corrupt
practices etc., has to be strictly construed and any deviation by the
respondent on this requirement shall make the petition liable to
be dismissed at the very threshold.
All the same, this is not what is the requirement of law.
Rather the settled position of law here is that an Election Petition
should not be rejected at the very threshold where there is a
“substantial compliance” of the provisions.
8. Thus, we will have to see whether “substantial compliance”
of Section 83(1)(a) and 83(1)(b) has been done by the respondent.
In para 15 of the Election Petition, the respondent has
pleaded that construction worth approx. Rs. 2 crores has taken
place on agricultural land of the appellant, however, the column
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for investment in land through construction has been left empty
by the appellant. Thereafter, the respondent has also pleaded that
the appellant was serving as a Committee Officer in the Assembly
Secretariat, Manipur Legislative Assembly till 31.12.2021, yet, she
has shown her income for FY 2021-22 as Rs.0/-, which is untrue.
In para 16 of the Election Petition, the respondent has
referred to Section 33 of RPA and alleged non-compliance with the
requirement of furnishing true and correct information by
candidates. Further, in ground A (as reproduced above) it is
asserted that since the appellant has concealed her investment of
Rs. 2 crores in her land, her nomination papers ought to have been
rejected.
On a perusal of the petition as a whole, including the
averments reproduced above, it is clear that a cause of action has
been disclosed by the respondent. Whether the appellant has
concealed her investments and her income, and thus her
nomination has been improperly accepted, is a triable issue.
9. Secondly, the affidavit, which is required as per the proviso
to Section 83(1)(c) of RPA has to be given in Form 25 as per the
Conduct of Election Rules, 1961, where Rule 94A reads as under:
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“94A. Form of affidavit to be filed with
election petition.— The affidavit referred to in
the proviso to subsection (1) of section 83 shall
be sworn before a magistrate of the first class or
a notary or a commissioner of oaths and shall
be in Form 25.”The relevant portion of Form 25 is also reproduced below:
I, ______, the petitioner in the accompanying
election petition calling in question the election
of Shri/Shrimati _____ (Respondent No.__) in the
said petition) make solemn affirmation/oath and
say—
(a) that the statements made in paragraphs
________ of the accompanying election petition
about the commission of the corrupt practice of
________ and the particulars of such corrupt
practice mentioned in paragraphs ________ of the
same petition and in paragraphs _________ of the
Schedule annexed thereto are true to my
knowledge;
(b) that the statements made in paragraphs
________ of the said petition about the
commission of the corrupt practice of _________
and the particulars of such corrupt practice
given in paragraphs _________ of the said petition
and in paragraphs _______ of the Schedule
annexed thereto are true to my information…
10. A question had come up before a three Judge Bench of this
Court in G.M. Siddeshwar v. Prasanna Kumar (2013) 4 SCC
776 as to whether an Election Petition is liable to be dismissed at
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the very threshold even if the allegations of corrupt practices of a
returned candidate have not been given by a petitioner in terms of
the proviso in Section 83(1)(c) of RPA. The finding of this Court was
that this cannot be done even if an affidavit is not filed in terms of
the proviso. What is mandatory, however, is that there should be
substantial compliance. In other words, if substantial compliance
in terms of furnishing all that is required under the law has been
given, the petition cannot be summarily dismissed.
11. In a more recent case also from Manipur (Thangjam
Arunkumar v. Yumkham Erabot Singh, 2023 SCC OnLine SC
1058), this Court upheld the dismissal of the returning
candidate’s Order VII Rule 11 application by the Manipur High
Court in an Election Petition. The Court after referring to and
applying the test laid down in Siddeshwar (supra) held as follows:
“14. The position of law that emerges for the above
referred cases is clear. The requirement to file an
affidavit under the proviso to Section 83(1)(c) is not
mandatory. It is sufficient if there is substantial
compliance. As the defect is curable, an opportunity
may be granted to file the necessary affidavit.”
12. In view of the reasons stated above, we see no reason to
interfere with the finding of the High Court of Manipur that the
Election Petition discloses a cause of action and that there is
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substantial compliance of the requirements provided under
provisions of RPA and thus the petition cannot be dismissed under
Order VII Rule 11 CPC.
13. The appeal is, therefore, dismissed.
14. Interim order(s), if any, shall stand vacated.
15. Pending application(s), if any, shall stand disposed of.
..……..………………………….J.
[SUDHANSHU DHULIA]
..……..………………………….J.
[AHSANUDDIN AMANULLAH]
New Delhi.
SEPTEMBER 13, 2024.