KIMNEO HAOKIP HANGSHINGversusKENN RAIKHAN & ORS.

                 [2024] 9 S.C.R. 354 : 2024 INSC 689

                       Kimneo Haokip Hangshing
                                 v.
                         Kenn Raikhan & Ors.
                      (Civil Appeal No. 10549 of 2024)
                             13 September 2024
     [Sudhanshu Dhulia* and Ahsanuddin Amanullah, JJ.]

                           Issue for Consideration
       Issue arose as to whether the Court can dismiss an election petition
       at the very threshold on an application u/Ord. VII r. 11 CPC or that
       the petition needs a detailed consideration by the Court.

                                  Headnotes†

       Representation of the People Act, 1951 – ss. 83, 86 – Contents
       of the petition – Trial of election petition – Appellant elected
       in the General Elections to the State Legislative Assembly –
       Election petition by the respondent-contestant from the same
       seat, challenging the election of the appellant alleging that
       the appellant did not disclose her assets in her nomination
       papers and had indulged in corrupt practices in the election –
       Application u/Ord. VII r. 11 CPC read with s. 86 for rejection
       of the election petition by the appellant – Dismissed by
       the High Court holding that the election petition discloses
       a cause of action and that there is substantial compliance
       of the requirements provided under provisions of RPA and
       thus the election petition cannot be dismissed u/Ord. VII r. 11
       application – Interference with:
       Held: Not called for – Perusal of s. 83 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. – Proviso to
       s. 83(1) requires that the election petition to be accompanied
       by an affidavit in prescribed form to support the allegations of
       corrupt practices – Election petition should not be rejected at
       the very threshold where there is a “substantial compliance” of
       the provisions – In the election petition, the respondent pleaded


* Author
[2024] 9 S.C.R.                                                              355

           Kimneo Haokip Hangshing v. Kenn Raikhan & Ors.


     there was non- compliance with the requirement of furnishing
     true and correct information by the appellant – On a perusal of
     the petition as a whole, including the averments stated, 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 – Also, affidavit, which is required as per the
     proviso to s. 83(1)(c) has to be given in Form 25 as per the
     Conduct of Election Rules, 1961 – Code of Civil Procedure, 1908 –
     Ord. VII r. 11. [Paras 6, 8, 9, 12]

                              Case Law Cited

     G.M. Siddeshwar v. Prasanna Kumar [2013] 4 SCR 1107 : (2013)
     4 SCC 776; Thangjam Arunkumar v. Yumkham Erabot Singh [2023]
     11 SCR 392 : 2023 SCC OnLine SC 1058 – referred to.

                                 List of Acts
     Code of Civil Procedure, 1908; Representation of the People Act,
     1951; Conduct of Election Rules, 1961.

                              List of Keywords

     Non disclosure of assets in nomination papers; Corrupt practices;
     Rejection of the election petition; Cause of action; Election Petition
     to be accompanied by affidavit in prescribed form; Substantial
     compliance; Nomination.

                             Case Arising From

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10549 of 2024
     From the Judgment and Order dated 05.07.2023 of the High Court
     of Manipur at Imphal in MC (El.Pet.) No. 66 of 2022 in El. Pet. No.
     34 of 2022.

                         Appearances for Parties

     D N Goburdhan, Sr. Adv., B. Krishna Prasad, Mrs. Rajani K Prasad,
     Mrs. Sunita Rani Singh, Advs. for the Appellant.
     Ahanthem Henry, Ahanthem Rohen Singh, Tadup Tana Tara, Mohan
     Singh, Aniket Rajput, Ms. Khoisnam Nirmala Devi, Kumar Mihir,
     Advs. for the Respondents.
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                  Judgment / Order of the Supreme Court

                                  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.
       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.”
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
[2024] 9 S.C.R.                                                           357

           Kimneo Haokip Hangshing v. Kenn Raikhan & Ors.


     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 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
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       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.
       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 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.
[2024] 9 S.C.R.                                                         359

           Kimneo Haokip Hangshing v. Kenn Raikhan & Ors.


     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:
           “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 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
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       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 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.

       Result of the Case: Appeal dismissed.



       †
           Headnotes prepared by: Nidhi Jain