Kimneo Haokip Hangshing vs Kenn Raikhan

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: 2

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.” 3

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 4

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.” (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.

5

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 6

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: 7

“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 8

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 9

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.