Hayeng Mangfi Vs Kompu Dolo

Kompu Dolo Age: 62 Occupation : Address:Son of Late Tagung Rebe resident of Village Rebe PO and PS Chayang Tajo East Kameng District Arunachal Pradesh 790102

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VERSUS

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Hayeng Mangfi Age: 48 Occupation : Address:Son of Late Tangu Mangfi resident of Nari Camp Village PO Sawa PS Chayang Tajo East Kameng District Arunachal Pradesh 790102

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-----------Advocate for : Minki Boje Advocate for : D Mazumdar Sr. Advocate appearing for Hayeng Mangfi: Advocate appearing for respectively.

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BEFORE

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THE HON ’ BLE MR JUSTICE ARUN DEV CHOUDHURY

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For the Elected Candidate :Mr. D. Das, Senior Counsel. Mr. I. Das, Advocate.

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For the Respondent : Mr. M. G. Singh, Advocate. Date of Hearing : 19.02.2025 Date of Judgment & Order : 08.05.2025

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JUDGMENT & ORDER(CAV)

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Heard Mr. D. Das, learned Senior Counsel assisted by Mr. I. Das, learned counsel for the Elected Candidate. Also heard Mr. M. G. Singh, learned counsel for the respondent. The present application is filed under Order VII Rule 11 of the C.P.C. 1908, read with Section 83 of the Representation of Peoples Act, 1951, (hereinafter referred to as the RP Act, 1951), praying for rejection of the Election Petition No. 01(AP)/2024 for want of cause of action.

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2. Brief facts till filing of the Election Petition:-

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2.1. A notification dated 20.03.2024 was issued by the Chief Electoral Officer, Arunachal Pradesh, Itanagar, under Section 15(1) of the RP Act, 1951. Subsequently, notice under Section 30 and Section 56 of the Act, 1951 were issued for election to the 9 Chayang Tajo (ST) Assembly Constituency, along with other constituency.

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2.2. The last date of filing nomination was fixed on 27.03.2024 and the date of scrutiny of nomination was on 28.03.2024. The election petitioner as well as the respondents filed their respective nomination papers.

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2.3. On 28.03.2024, the nominations filed by the parties were scrutinized by Returning Officer and the nominations papers submitted by the election petitioner as well as the respondent elected candidate were accepted.

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2.4. On 19.04.2024, the Arunachal Pradesh Legislative election was held as set out by the Election Commission of India vide notification dated 20.03.2024, including the 9 Chayang Tajo (ST) Assembly Constituency of East Kameng District.

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2.5. On 22.04.2024, a representation was filed by the election petitioner for cancellation and re-poll of Nari Camp Polling Station 17, Kapu Dada Polling Station 32, Veo Polling Station 2, Krema Pao Polling Station 19 on the ground of alleged booth capturing, booth rigging, and malpractice by the Elected Candidate. Certain allegations regarding wrong acceptance of the nomination paper of the elected candidate was also raised and the same was rejected by the Returning Officer contending that during the scrutiny of Form 17A (Voters List) and other documents on 21.04.2024, the Election Petitioner’s election agent, did not make any complaints

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about the four polling stations. On 24.04.2024, similar representation was filed before the General Observer for the cancellation and re-poll of Nari Cap Polling Station 17, Kapu Dada Polling Station 32, Veo Polling Station 2, Krema Pao Polling Station 19 on the ground of alleged booth capturing, booth rigging and malpractice by the Elected Candidate.

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2.6. On 02.06.2024, the result of the 9 Chayang Tajo (ST) Assembly Constituency for the 11^th Arunachal Pradesh Assembly Election was declared, declaring the Elected Candidate as return candidate with 8,809 votes as opposed to 2,214 votes for the Election Petitioner.

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3. Arguments on behalf of the Elected Candidate:

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Mr. D. Das, learned Senior Counsel for the Elected Candidate had made elaborate and extensive arguments as many as on …. Dates and accordingly his arguments are summarised in the following manner :

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3.1 Booth Capturing / Booth Rigging / Malpractice .

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3.1.1 The Hon’ble Supreme Court in Azhar Hussain –Vs- Rajiv Gandhi reported in 1986 Supp SCC 315 held that when alleging corrupt practice, the election petitioner must state with exactness the time of assistance, the manner of assistance, the persons from whom assistance was obtained or procured, the time and date of the same must be precisely stated. In the instant election petition, the Election Petitioner failed to attribute the allegations to the Elected Candidate and made bald and vague statements without basis. It is seeking a roving and fishing inquiry from this Hon’ble Court.

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3.1.2 Moreover, though the Election Petitioner has alleged voters were intimidated and their votes were forcibly cast in favour of the Elected

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Candidate, there is no FIR from said voters lodged against the Elected Candidate and/ or his election agent. Additionally, assuming, while not admitting, that votes purportedly casted in favour of the Elected Candidate through malpractice were discarded, even then it would not affect the result materially since the Elected Candidate has won the election with a margin of over 6,685 votes.

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3.1.3 It is well settled that Section 83 of the said Act mandates concise statements of material facts, such as how the returned candidate has engaged in corrupt practice. Material facts encompass the entire bundle facts; they are primary and basic facts which must be pleaded in support of the case presented by an election petitioner to demonstrate his cause of action. Moreover, the omission of a single material fact would result in an incomplete cause of action, entitling the returned candidate to seek dismissal of the Election Petition under Order VII Rule 11 of the CPC. Such material facts are absent in the pleadings. Furthermore, the evidence provided in support of the pleadings must be clear, cogent, satisfactory, credible, and positive, and it should withstand the rigours of strict and scrupulous scrutiny, which is not available in the pleadings of the election petition.

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3.1.4 Therefore, on the face it, the allegations regarding alleged booth capturing / booth rigging/ malpractice in respect of the four polling stations (Nari Camp Polling Station 17, Kapu Dada Polling Station-32, Veo Polling Station-2, and Krema Pao Polling Station-19) by the Elected Candidate / his agents/ his supporters do not fulfil the requirement under Section 83 of the said Act. The Election Petitioner had merely made bald and vague allegations without any basis that would comply

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with the requirement of concise statements of material facts. Moreover, the allegations are hearsay and not sustained as to the involvement of the Elected Candidate, either directly or indirectly. Furthermore, the Election Petitioner has failed to produce any record or document and/or is sustained with evidence in support that would lead to a conclusion or result that the allegations made have been committed, rendering the election void under Section 100 of the said Act. The allegations regarding the polling stations are vague, inadequate, without proof, and are an afterthought. Therefore, the instant Election Petition is wholly misconceived and is required to be rejected at the threshold under Order VII Rule 11 of the CPC.

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3.1.5 It is crucial for the court to scrutinise the pleadings relating to corrupt practices in a stringent manner. Courts have consistently frowned upon vague pleadings that allow for a wide scope to adduce evidence. Material facts including positive statements of fact as well as positive assertions of a negative fact are not present in the pleadings. The pleadings made do not disclose any cause of action and the Election Petition is required to be rejected/ dismissed under Order VII Rule 11 of the CPC.

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3.2 Improper Acceptance of Nomination:

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3.2.1 Nondisclosure of FIR :

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3.2.1.1 It is settled law that the law does not hold a person guilty or deem or brand a person a criminal only because an allegation is made against the person of having committed a criminal offence, be it the form of an off-the-cuff allegation or an allegation in the form of an FIR or a complaint or an accusation in a final report. Moreover, a bare perusal

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of Form 26 read with Section 33Aof the RP Act, 1951, makes it clear that a contesting candidate must declare cases against them, in which charges have been framed or a competent court has taken cognizance and it is not the requirement that pendency of police case where no charge sheet has been filed should be disclosed. Beyond that, the registration of the said FIR was not within the knowledge of the Elected Candidate, nor any notice under Section 41A of the Code of Criminal Procedure, 1973 has been issued, or any summons were issued by the court of competent jurisdiction. Moreover, in the reply dated 22.04.2024 by the Returning Officer to the Election Petitioner, it is clearly stated that during scrutiny of Form 26 and nomination paper, the Election Petitioner and his authorised representative thoroughly examined the nomination papers of the Elected Candidate and made no objections to any of the entry in the nomination papers or the affidavit. Therefore, it is clear that the Election Petitioner is attempting to dislodge a democratic process with vexatious and malicious intentions, and wants this Court to conduct a fishing and roving inquiry. Thus, the Elected Candidate did not suppress or misrepresent any material facts while filing his Form 26 affidavit and nomination papers.

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3.2.1.2 A bare perusal of the FIR makes it clear that allegations are primarily against Shri Yura Tagang for purportedly misusing his power and position to favour the Elected Candidate’s erstwhile proprietorship firm, M/s H.M. Traders. The FIR 13 of 2024, registered on 08.03.2024, naming the Elected Candidate as an accused by Shri Takar Bagang, is filed with malafide intentions and based on concocted facts from the

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year 2019.

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3.2.1.3 In light of the above, the allegations raised in the connected Election Petition regarding the non-disclosure of criminal background/ criminal antecedents of the Elected Candidate are baseless and inadequate for declaring the results of the election as void and amount to an incomplete cause of action entitling the returned candidate to pray for dismissal of the Election Petition under Order VII Rule 11 of the CPC.

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3.2.2 Non disclosure of immovable property :

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3.2.2.1 The Elected Candidate had provided all the necessary information in his Form 26 affidavit with his nomination paper and did not intentionally suppress, misrepresent, or make any false statement of facts that materially impacted the election results.

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3.2.2.2 The plot of land that the Election Petitioner alleges to have not been disclosed by the Elected Candidate to unduly influence the voters, is actually mentioned in the affidavit (Form-26) filed along with his nomination paper in Section B titled ‘Details of Immovable assets’ at serial number ‘II’, i.e., ‘Land located at Jollang Village, Papumpare’.The said plot of land is kept as collateral security with Arunachal Pradesh State Cooperative Apex Bank against a loan secured by the Elected Candidate, and the documents of the said plot of land are with the Bank authorities. Additionally, on the day of the scrutiny, the Election Petitioner or his authorised representative made no objections to the nomination papers and affidavit filed by the Elected Candidate. This is clearly indicative from the reply dated 22.04.2024 by the Returning Officer to the Election Petitioner. Therefore, it is clear that the Election

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Petitioner is attempting to dislodge a democratic process with vexatious and malicious intentions, and wants this Hon’ble Court to conduct a fishing and roving inquiry.

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3.2.2.3 In light of the above, the allegations raised in the connected Election Petition regarding the non-disclosure of a plot of land at Jollang Village are baseless and inadequate to declare the election results void. It amounts to an incomplete cause of action entitling the returned candidate to pray for dismissal of the Election Petition under Order VII Rule 11 of the CPC.

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3.2.3 Non disclosure of Trade licence ;

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3.2.3.1 The allegation is that the elected candidate made a statement in C.R.P (C) No. 17 (AP) of 2024 filed by the elected candidate that the Elected Candidate is the proprietor of M/s H.M. Traders, however, such fact was not disclosed in the Form 26. However, such allegation is result of misreading of the statement made by the Elected Candidate in the said C.R.P (C) case. In C.R.P (C) No. 17(AP) of 2024, inasmuch as the Elected Candidate stated that“hewas a proprietor of a Firm, namely, M/s H.M.Traders” inasmuch as the said M/s H.M. Traders has been defunct since the year 2014, and the purported trade license of the firm has not been renewed.

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3.3 Non opening of account in the name of the elected candidate or joint account with Agent:

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3.3.1 Section 77 of the RP Act, 1951, requires a candidate to keep a separate and correct account, either by himself or by his election agent, of all election expenditures incurred or authorised. Thus, there

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is no bar to open a separate account in the name of a candidate’s election agent. Section 123 (6) read with Section 77 of the said Act and Rule 90 of the Conduct of Election Rules, 1961, purports to restrict unlimited flow of money power, and makes expenditure in excess of the limit fixed, a corrupt practice. Moreover, when alleging contravention of Section 77 of the said Act, the initial onus is on the election petitioner to satisfy the Court on basis of the materials produced by him, that the candidate concerned has incurred expenditure in connection with the election in excess of the limit fixed by Rule 90 of the Conduct of Election Rules, 1961.Therefore, corrupt practice as per the said Act consists of exceeding the prescribed expenditure limit, which must be proved. Mere allegations of omissions to open account or that the account was not properly kept, would not afford a cause of action from filing an election petition. Any allegation of corrupt practice pertaining to election expenditure must be averred that non-compliance has materially affected the result of an election.

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3.3.2 The Elected Candidate duly authorised his election agent, Shri Anil Rebe, to open a separate bank account for all expenditures incurred in connection with the election during the period from 27.3.2024 to till the date of declaration of the election results, and the same was submitted to the Returning Officer as well as the Expenditure Observer. The Elected Candidate and his election agent have maintained proper election expenditure accounts. Accordingly, the Elected Candidate in the instant application has appended the authorisation letter, and the bank statement submitted to the Election Expenditure Observer. Therefore, opening of account in the name of agent cannot be said to

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be corrupt practice.

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3.3.3 The allegations in the connected election petition are vague and mere assumptions that do not constitute corrupt practices under the provisions of the RP Act, 1951, nor do they warrant interference from this Court. Assuming that the Election Petitioner seeks to declare the election results void on the grounds that the failure to open a joint bank account constitutes corrupt practice or contravenes Section 100 of the RP Act, 1951, the Election Petitioner has not demonstrated how the Elected Candidate’s failure to open a bank account in his name or a joint account with his election agent, Shri Anil Rebe, materially affected the result of the election.

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3.4 Concluding Argument:

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3.4.1 While concluding, Mr. Das learned Senior Counsel submits that the allegations raised in the Election Petition do not disclose a cause of action, the same is liable to be dismissed in limine. The same does not satisfy the grounds contemplated under Section 100 of the RP Act, 1951, to disclose a cause of action, and fails to conform with the requirements under Sections 81 and 83 of the RP Act, 1951. Accordingly, the Election Petition is liable to be rejected under Order VII Rule 11 of the CPC.

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3.4.2 Mr. Das, learned Senior Counsel for the Elected Candidate to buttress his argument relied on the following judgments: Hari Shanker Jain –VsSonia Gandhi reported in (2001) 8 SCC 233, Azhar Hussain –Vs- Rajiv Gandhi reported in 1986 Supp SCC 315, Dhartipakar Madam Lal Agarwal –Vs- Rajiv Gandhi reported in 1987 Supp SCC 93, Karim Uddin

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Barbhuiya –Vs- Aminul Haquw Laskar reported in 2024 SCC Online SC 509, C.P. John –Vs- Babu M. Palissery reported in (2014) 10 SCC 547, Thangjam Arunkumar –Vs- YumkhamErabot Singh reported in 2023 SCC Online SC 1058, Gadakh Yashwantrao Kankarrao –VsBalasahebVikhe Patil reported in (1994) 1 SCC 682, Lalit Kishore Chaturvedi –Vs- Jagdish Prasad Thada, reported in 1990 Supp SCC 248, Thakkar Singh –Vs- Tulsi Ram reported in 2010 SCC Online HP 5137, MarkioTAdo –Vs- Takam Sorang reported in (2013) 7 SCC 524 and Satish Ukey -Vs- Devendra Gangadharrao Fadnavis reported in AIR 2019 SC 5101.

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4. Argument on behalf of the Election Petitioner:

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Mr. M. G. Singh, learned Counsel for the Election Petitioner, submits the following:-

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4.1.1 So far Booth capturing/booth rigging and malpractices at four polling stations, at para 19, 19.1, 19.2, 19.3, 19.4 and 20 of the election petition, the chronology of events of malpractices in the four polling stations, including the full particulars, names of the polling station and individuals, and date and place, providing each and every detail as far as possible are pleaded. Therefore, it is a subject matter for trial being statement of material facts providing details as far as practicable, as per law inasmuch as cause of action is clearly made out from such statement. At para 17, 21.4.4, 22, 23, 24 and 25, and 27 of the election petition, details pleadings on corrupt practice and material particular as far as possible, are made.

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4.1.2 As regards pleading that the election was materially affected by

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improper acceptance of the nomination paper and corrupt practices, the election petitioner has specifically pleaded at para 6, 6.1.3, 6.2, 12.5, 15 and 26 of the election petition, as to how the result of the election has been materially affected by improper acceptance of the nomination paper. It is not always necessary to specifically plead the material affect of improper acceptance of nomination paper when there are only two candidates in the fray. Therefore, it is a subject matter for trial being statement of material facts.

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4.2 So far relating to Non-disclosure of Criminal Case/FIR No. 13/2024, there are specific pleadings of undue influence by way of concealing the FIR, thereby undermining the integrity and free & fair exercise of electoral process depriving the voter of making an informed choice. At para 6.1 and 6.1.2 in the election petition, it is clearly stated the facts and pleadings as to materially affecting the election. At para 6.1.3 in the election petition, it is stated that the respondent/Elected Candidate has intentionally concealed the facts. At para 7 & 8 in the election petition, it is pleaded that non disclosure of criminal case and immovable property amounts to undue influence.

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4.2.1 As regards non disclose of immovable property in his Form-26, at para 6.2 in the election petition, it is pleaded that it is intentional and deliberate non-disclosure of immovable property and same has materially affected the result of the election. Further, details of the property is clearly given at para 6.2.1 in the election petition along with a copy of land holding certificate issued by the Deputy Commissioner, Itanagar. At para 6.2, 6.2.1 and 6.2.2 in the election petition, it is stated that the non disclosure is intentional, deliberate which amounts

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to undue influence.

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4.2.2 As regards Non-disclosure and filing of false Form 26 Affidavit, at para 6, 7 and 8 in the election petition,it is specifically pleaded that non disclosure of criminal case and immovable property amounts to undue influence. Therefore, it is a subject matter for trial being statement of material facts.

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4.3 So far relating to Non-disclosure of Elected Candidates possession of a trade license and material particulars leading to violation of constitutional provision, which undermines the integrity of the electoral process, specific statements are available at para 13, 13.1, 13.2, 13.3, 13.4, 13.5 and 14 of the election petition. Therefore, it is a subject matter for trial being statement of material facts.

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4.4 Non opening of a separate bank account exclusively for monitoring election expenditure as mandated by election rules/guidelines in compliance of Section 77 of the RP Act, 1951.

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4.4.1 At para 12 in the election petition, it is stated that it is the mandate of Election Commission of India and the RP Act, 1951 for a candidate to open a separate Bank Account for the purpose of election expenditure and it is specifically pleaded that no separate bank account exclusively for monitoring election expenditure as mandated by the Election Rules, Guidelines in compliance of Section 77 of the RP Act, 1951 has not been opened by the Elected candidate, rather the account open was admittedly in the name of the election agent of the elected candidate and same is not even a joint account.

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4.4.2 It is admitted in the argument of the counsel for the respondent/Elected Candidate that the respondent/Elected Candidate has failed to open the separate Bank Account.

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Further, at para 12, 12.1, 12.2, 12.3.1, 12,3,4, 12.4 and 12.5 of the election petition material particulars of such allegation are provided.

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Mr. Singh, learned counsel in support of his contention relies on the following judgments: Dr. Ramachandran –Vs- R. V. Janakiraman reported in (1999) 3 SCC 267, P.V.Guru Raj Reddy –Vs- P. Neeradha Reddy reported in (2015) 8 SCC 331, Srihari NumandasTotala –VsHemant Vithal Kamat reported in (2021) 9 SCC 99, Ashraf Kokkur –VsK. V. Abdul Khader and Ors reported in (2015) 1 SCC 129, Eldeco Housing and Industries Ltd. –Vs- Ashok Vidyarthi and Ors. Reported in 2023 INSC 1043, Madiraju Venkata Ramana Raju –Vs- Peddireddigari Ramchandra Reddy & Ors reported in 2018 (14) SCC 1, Durai Mutthuswami –Vs- N. Nachiappan and Others reported in 1973 2 SCC 45 and Sri Mairembam Prithviraj @ Prithviraj Singh –Vs- Shri PukhremSharatchandra Singh reported in (2016) 9 SCR 687.

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5. Findings of this Court:

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5.1 Principles of Law:

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5.1.1 Before dealing with the pleadings made in the Election petition, which is the fundamental and basic consideration for rejection of an election petition for non disclosure of cause of action under Order VII Rule 11 of CPC as well as under Section 83 of the RP Act, 1951, let this Court first summarise the principles of law laid down in the judgments cited by both the learned counsels for the parties in the following

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paragraphs:

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5.1.2 Though Code of Civil Procedure, 1908, is made applicable in case of an Election Petition, however, Election Petition is governed by the RP Act, 1951, a special statute, which prescribes exceptional procedure and certain rigours. The object of such rigour is that by way of an Election Petition, the democratically expressed will of the electoral can be reversed and therefore, it has consistently been held by the Hon’ble Apex Court and different High Courts that such petition must be in strict conformity with the statutory requirements, more particularly, Section 83 of the RP Act, 1951 and Order VII Rule 11 of the CPC.

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5.1.3 From the judgment cited at bar by the learned counsels for the parties, it is clear that Section 83 of the RP Act, 1951 mandates that an Election Petition must contain concise statements of material facts on which the petition relies. The Election Petitioner is to set forth, the full particular of any corrupt practice, including names, dates and places so far as practicable, need to sign and verify and a separate affidavit under Form-25, is to be filed, when corrupt practices are alleged. Failure to comply with mandate of Section 83 of the RP Act, 1951, shall necessarily render the Election Petition incomplete and make it vulnerable to rejection.

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5.1.4 Now coming to Order VII Rule 11 of the CPC,it empowers a Court to reject a plaint, which includes an Election Petition on different grounds, more particularly, where it does not disclose a cause of action and where the suit or petition appears to be barred by law from the pleading and statement.

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5.1.5 Cause of action refers to a bundle of facts which taken with the law applicable to them, gives the plaintiff/petitioner a right to relief against defendant. It is the foundation of the plaint and in absence of such facts, such plaint or petition can be rejected.

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5.1.6 The material facts are those primary facts which must be pleaded to form a complete cause of action. Absence of material facts renders an Election Petition inherently defective, making it vulnerable for rejection without trial inasmuch as when the allegation of corrupt practice are vague and lacks material particular, the same cannot form the basis of a triable issue.

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5.1.7 It is by now well settled that compliance of Section 83(1) of the RP Act, 1951, is not directory but mandatory. An Election Petition which fails to state material facts or is not supported by necessary affidavit, more particularly, when allegation of corrupt practise are there, is liable to be dismissed without a trial. Such provision under Section 83 of the RP Act, 1951 is a statutory safeguard against frivolous and politically motivated challenges.

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5.1.8 The standard of pleading, when it relates to allegation of corrupt practices,is at a higher standard. Allegation of corrupt practices, must be pleaded with precision, including specific names, dates, places and the role of the returned candidate. Bald or generalised allegation, specifically those not supported by an affidavit in Form-25, are held to be insufficient and in such a case, it warrants a summary dismissal under Order VII Rule 11 of CPC.

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5.1.9 It is also settled law and discernible from the judgments cited at bar

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that litigations which are frivolous, vexatious,are to nip in the bud.

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5.1.10 To summarise, it is well settled that the interplay between Section 83 of the RP Act, 1951 and the Order VII Rule 11 of CPC, underscores a judicially recognized principle that Election Petitions must stand or fall on the strength of their pleading. The absence of material facts, material particulars, non disclosure of cause of action or failure to comply with requirement of affidavit, when it is allegation of corrupt practices, goes to the very root of maintainability of an Election Petition. Therefore, taking note of the need to protect the democratic mandate, the Hon’ble Apex Court has been adopting a strict scrutiny standard in admitting an Election Petition.

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5.2 The pleadings in the Election Petition:

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In the aforesaid backdrop of settled propositions of law, now let this Court deal with the pleadings in the present Election Petition and to consider whether the present Election Petition is liable to be dismissed summarily for want of cause of action more particularly, for nonadherence of Section 83 of the RP Act, 1951. The pleading made can be summarized as follows:

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5.2.1 Booth capturing/Booth rigging/Malpractice in four polling stations:

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The Election Petitioner has alleged that the Elected Candidate has resorted to corrupt practices, i.e., booth capturing/ booth rigging/ malpractice in four polling stations, namely (i) Nari Camp Polling Station-17; (ii) Kapu Dada Polling Station-32; (iii) Veo Polling Station2; and (iv) Krema Pao Polling Station-19 which have materially

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affected the election of the returned candidate (the Elected Candidate).

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Accordingly, in paragraphs 18, 19, 19.1, 19.2, 19.3, 19.4, 24, and 25 of the Election Petition, the Election Petitioner has raised various allegations regarding booth capturing/ booth rigging/ malpractice in four polling stations committed by the Elected Candidate / his agent / his supporters. The date and the place and the person involved are also mentioned. To this effect, the Election Petitioner filed his Form-25 declaration.

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In paragraph 19.1 of the Election Petition, the Election Petitioner raised allegations of malpractice in Nari Camp Polling Station-17. These allegations can be divided into four categories, namely: i. Shri Raj Pao, the Election Petitioner’s election agent, received information about malpractice inside the Nari Camp Polling station. Upon inspection, it was found that the polling agent of the Election Petitioner was not performing his duties. Therefore, Shri Raj Pao issued a revocation letter removing Shri Nito Mangam and appointing Shri Sama Yangfo. However, the presiding officer did not accept the Letter. ii. When Shri Raj Pao visited Nari Camp Polling Station, he found that Shri Nito Mangam, the polling agent of the Election Petitioner, was missing and one Shri Lock Mangam was discharging duties as an INC agent without any authority. It is also alleged that Shri Lock Mangam casted votes for dead and non-APST voters. iii. Five individuals, namely Shri Pacha Mangam, Shri Sangte Mangam, Ulu, Shri Dahi Mangam, and Shri Gandhi Mangam committed malpractice by harassing voters and casting votes for others and. iv. The Elected Candidate casted his vote

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twice.

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In paragraph 19.2 of the Election Petition, the Election Petitioner has alleged that the Elected Candidate’s polling at Kapu Dada Polling Station 32 casted votes on behalf of absentee voters. The Election Petitioner claims that his election agent, Shri Raj Pao, received information from one Shri Taguk Dada that many voters did not turn up to cast their votes. It is alleged that the polling agent of the Elected Candidate in collusion with the presiding officer casted votes on behalf of the absentee voters through malpractice and by using muscle power.

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In paragraph 19.3 of the Election Petition, the Election Petitioner states that his election agent informed him about booth capturing in Veo Polling Station 2. It is alleged that some BJP supporters are using muscle power and intimidation to cast votes for other voters. It is specifically alleged that one Shri Roma Veo casted the vote of Shri Roman Veo.

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In paragraph 19.4 of the Election Petition, it is claimed that the Election Petitioner’s election agent informed him, in Krema Pao Polling Station 19, that one Shri Mohan Pao casted votes in favour of the Elected Candidate without the consent of the voters. It is particularly alleged that Shri Mohan Pao used his muscle power to forcefully cast votes of eight voters, Shri Khya Salu, Shri Saju Pao, Smt. Yagiam Pao, Smt. Yaso Pao, Smt. Laxami Pao, Shri Khya Pai, Shri Taring Pao, and Smt. Yasang Pao.

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In light of the allegations regarding booth capturing, booth rigging,

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and malpractice in Nari Camp, Kapu Dada, Veo, and Krema Pao polling stations, the Election Petitioner addressed letters dated 22.04.2024 to the Returning Officer and District Election Officer and letters dated 24.04.2024 to the General Observer requesting cancellation and repolling.

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In addition to the allegation raised in paragraphs 18 and 19 of the election petition regarding corrupt practice of booth capturing/ booth rigging/ malpractice in the four polling stations, the Election Petitioner, in Form 25 appended to the Election Petition, has also asserted that paragraphs 24 and 25 regarding the commission of the corrupt practice of booth capturing committed by the Elected Candidate/ his agent/ his supporters are true to his information.

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In paragraph 24 of the Election Petition, the Election Petitioner has contended that the results of the election were materially affected and as such is liable to be declared as void on the ground that due process as mandated under the said Act and the Conduct of Election Rules 1961 was not adhered to during the counting of postal ballots.

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In paragraph 25 of the Election Petition, the Election Petitioner claims that the Booth Level Officer, Shri Rahul Mangam, failed to delete the names of 11 deceased voters from the electoral list of Nari Camp polling station 17. It is alleged that all these votes casted their votes in favour of the Elected Candidate, which amounts to corrupt practice.

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5.2.2 Improper acceptance of nomination paper materially affecting the results of the election in favour of the Returned Candidate.

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In the Election Petition at paragraphs 6 to 10 and 13 to 17 of the Election Petition, the Election Petitioner alleges that the Elected Candidate filed a falsified affidavit under Form 26 along with the nomination, which amounts to undue influence on the voters. In particular, the Elected Candidate purportedly failed to disclose a pending criminal case, immovable property, and the trade licence in the name of M/s H.M. Traders. As a result of the improper acceptance of the affidavit submitted by the Elected Candidate, the results of the election have been materially affected by procedural and substantial irregularities as specified under Section 100 of the said Act.

¶134

5.2.2.1 So far relating to Non-Disclosure of FIR, the Election Petitioner, in paragraph 6.1 of the Election Petition, alleges that the Elected Candidate failed to disclose his involvement in a criminal case, FIR No. 13 of 2024, under Sections 120(B)/ 409/ 420 of the Indian Penal Code, 1860, read with Sections 13(1)(a)/ 13(2) of the Prevention of Corruption Act, 1988 naming him as an accused. In doing so, it is alleged that the Elected Candidate kept voters in the dark regarding his purported criminal background and activities, which amounts to undue influence and corrupt practice.

¶135

It is alleged in the F.I.R. that the proprietor of M/s H.M. Traders, in collusion with the then Bank Manager (Shri Yura Tagang) of Itanagar Cooperative Apex Bank Limited availed a multi-crore loan through cash credit overdraft and DBP facilities without pledging any mortgage as security in equivalent or at par to the loaned amount. It is further alleged that the Elected Candidate defaulted in the repayment of monthly EMI. Upon this, the Bank filed a claim before Lok Adalat,

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Yupia, and Shri Yura Tagang waived off more than Rs 12 crores. The Lok Adalat at Yupia vide order dated 09.03.2019 settled and decreed the claim for a final settlement amount of Rs 10 crores. Further, it is also alleged that on 12.03.2019, Shri Yura Tagang misused his power and position to issue a false no due certificate in favour of the Elected Candidate. Based on this complaint, a FIR was registered on 08.03.2024.

¶138

The Election Petitioner pleaded in his Election petition that he did not receive the majority of the vote due to the Elected Candidate’s nondisclosure of his purported criminal background. As such, the integrity of the electoral process was undermined, and the results of the elections were materially affected.

¶139

In the Election Petition, raised the ground under Section 100(1)(d)(i) of the RP Act, 1951 for invalidating the election of the returned candidate by making averments in the election petition, inter alia stating that the affidavit in the prescribed Form did not disclose pendency of an FIR against him having knowledge about it.

¶140

5.2.2.2 So far relating to Non-Disclosure of Immovable Property ,the Election Petitioner at paragraph 6.2 of the Election Petition has alleged that the election result was materially affected because the Elected Candidate allegedly failed to disclose a plot of land measuring 150000 m2 at Jullang Village in his nomination paper and Form-26 affidavit. It is alleged that the purported reason for non-disclosure is intentional, deliberate, and malafide, intended to influence the voters unduly and amount to undue influence and corrupt practice.

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Page No.# 24/35

¶142

5.2.2.3 As regards Non-Disclosure of Trade License, the Election Petitioner, in paragraphs 13 to 16 of the Election Petition, has alleged that the Elected Candidate purportedly has a trading license through the proprietor firm, M/s H.M Traders. This constitutes an office of profit and is prohibited under Article 191(1)(a) of the Constitution of India. Thus, the Elected Candidate’s non disclosure violates the constitutional provision and undermines the integrity of the electoral process.

¶143

The Election Petitioner in his election petition pleaded and relied on C.R.P (C) No. 17 (AP) of 2024 and contended that the Elected Candidate has “admitted to being the proprietor of M/s H.M. Traders” in the said C.R.P. Furthermore, in paragraph 13.5 of the election petition, the Election Petitioner contends that the Elected Candidate holds an office of profit by possessing a trading licence through the proprietary firm M/s H.M. Traders, which renders the Elected Candidate ineligible to contest the election.

¶144

5.2.2.4 The last ground on which the Election Petitioner is seeking to set aside the results of the election under Section 100 of the said Act is that the Elected Candidate has frustrated the objectivity of transparency and accountability in election expenditure by not opening separate bank account to maintain election expenditure rather it is pledged that the bank account was opened in the name of the agent of the elected candidate not even jointly with the elected candidate.

¶145

In paragraph 12 of the election petition, the Election Petitioner contends that the Elected Candidate has violated the mandate of the Election Commission of India and the said Act by failing to open a

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separate bank account for election expenditures, as required under Section 77 of the RP Act. This frustrates the objective of transparency and accountability in election expenditures.

¶148

At paragraph 12.1 and 12.2 of the election petitions, it is pleaded that the Elected Candidate has evaded scrutiny of his election expenses, thereby undermining the integrity of the electoral process. Furthermore, reliance has been placed on Section 77 of the said Act to plead that candidates should keep an accurate account of all election expenses incurred from the date of nomination to the date of declaration of results. It is also pleaded that the Elected Candidate has been using the account of his election agent for election expenses and the same was opened much before the necessary timeline provided under Rule 3.4 of the Election Commission of India Handbook for Candidates 2023.

¶149

In light of the allegations, the Election Petitioner has represented various authorities, praying for the disqualification of the Elected Candidate (see paragraphs 12.3 to 12.3.3 of the election petition).To this end, the Election Petitioner has also filed an RTI application requesting details of election expenditures and the daily bank transaction account of the Elected Candidate and his election agent (see paragraphs 12.3.4 and 12.4 on pages 35 to 36 of the instant election petition).

¶150

It is also pleaded that the result of the election was materially affected by improper acceptance of the nomination paper and corrupt practice.

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6. Determination made by this Court:

¶153

6.1 Taking note of the aforesaid settled proposition of law and the pleading, now let this Court deal with the present application including the pleadings and arguments of the learned counsel for the parties in the following manners:-

¶154

6.2 Coming to the issue of corrupt practices, there are two-fold allegations one is relatable to interference with free exercise of electoral right such as booth capturing etc., and other part is failure to open a separate bank account. Therefore, let this Court deal with both this issues together.

¶155

6.3 The essential ingredients of corrupt practice of undue influence under Section 123(2) of the RP Act, 1951, is that there should not be any direct or indirect interference or attempt to interfere on the part of the candidate or his agent or any other person with consent of the candidate or his agent with the free exercise of any electoral right. It is also to be noted that Section 123(2)(a)(i) of the RP Act, 1951, brings under the fold of undue influence, any threat to any candidate or any elector, or any person in whom a candidate or an elector interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community. Therefore, in the present context,this Court is to look into the concise statement of the material facts, the full particulars of such corrupt practice, whether available in the pleadings in terms of Section 83(1) of the RP Act, 1951.

¶156

6.4 As recorded hereinabove, in the case in hand, the election petitioner

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pleaded specifically how there was booth capturing etc. in four polling booths. The nature of influence, the voters on whom it was exercised and the time and place are also stated. Such statement and allegations cannot be said to be fishing and roving. Since, there is pleading in the Election Petition, that the booth capturing were committed with the consent of the returned candidate and the place of such booth capturing as well as the person involved are named and there is specific statement that votes were polled under the influence of the election petitioner against dead men and on behalf of others, in the considered opinion of this Court, in the touchstone of Section 123 of the RP Act, 1951 read with Order VII Rule 11 of the CPC 1908, it is to be held that the election petition discloses cause of action of corrupt practices. At the cost of repetition, this Court records that the election petitioner has pleaded precise facts constituting corrupt practice of undue influence. The nature of such influence, the person whom it was exercised and time and place of it, are also pleaded as per as practicable and it is also specifically stated that there is interference of the returned candidate and his agent.

¶159

6.5 In the considered opinion of this Court, the object and purpose of pleading as required to be made under Section 83(1) of the RP Act, 1951, i.e. assurance that each side is fully aware of the questions that are raised or is to be considered so that they have opportunity of placing the relevant evidence, appropriate to issues before the court for its consideration, are satisfied in the case in hand.

¶160

6.6 Now coming to the issue for non opening of bank account in terms of Section 77 of the RP Act, 1951, the said Section deals with account

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of election expenses and the limit thereof. Sub Section 1 of Section 77 of the RP Act, 1951, mandates that every candidate at an election, shall either by himself or by his election agent, keep a separate and current account of all the expenditures in connection with the election incurred or authorised by him or by his election agent between the date on which he had filed the nomination and the date of declaration of the result thereof, (both of dates inclusive). In the case in hand, it is pleaded in the election petition that the elected candidate has been using the account of his election agent and the same was opened much before the necessary timeline provided under Paragraph 3.4 of the Election Commission of India Handbook for Candidates 2023.

¶163

6.7 Paragraph 3.4 of the Election Commission of India Handbook for Candidates, 2023, prescribes that a separate bank account to be opened by each candidate for election expenditure. Paragraph 3.4.2, prescribes that the bank account can be opened, either in the name of the candidate or in the joint name with his election agent for the purpose of election expenditure and such bank account should not be opened in the joint name with any family member of the candidate or with any other person, if he/she is not the election agent of the candidate. Paragraph 3.4.3, mandates that existing bank account of the candidate should not be used for this purpose and such bank account is to be a separate bank account for election purpose. Paragraph 3.4.1 prescribes that such bank account shall be opened at least one day before the date on which the candidate files his nomination papers.

¶164

6.8 A contention is raised by the elected candidate that he has been

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using the bank account of his election agent for the election purposes much before the necessary timeline provided under Paragraph 3.4 of the Handbook for Candidate, 2023. Therefore, in the aforesaid backdrop of pleading and the mandate of Section 77 of the RP Act, 1951 read with the provision of Paragraph 3.4 of Handbook for Candidate 2023, issued by the Election Commission of India, this Court is of the view that the such pleading clearly raises a statement that the elected candidate has not maintained a bank account as mandated under the aforesaid provision. Therefore, material particulars and details are there in this regard too.

¶167

6.9 An argument is being advanced that election petition is unclear under which provision of the RP Act, 1951, the election petitioner is invoking to declare the election void besides mentioning Section 77 of the RP Act, 1951 in paragraph 20.1 in the election petition. In the considered opinion of this Court, Section 123(6) of the RP Act, 1951, treats an action of incurring or authorising of expenditure in contravention of Section 77 of the RP Act, 1951 a corrupt practice. Therefore, there is no ambiguity as regards the aforesaid provision inasmuch as in the opinion this Court, when corrupt practice is pleaded as regards contravention of Section 77 and material particular and details are given as prescribed under Section 83(1) of the RP Act, 1951, pleading of provision of law i.e. Section 123 (6) of RP Act, 1951, shall not be necessary. To conclude, it cannot be said that the statement as regards corrupt practices relatable to Section 123 (6) of the RP Act, 1951 made in the Election Petition, are bald or generalize allegation. The material facts and particulars required are also pleaded in this

¶168

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regard and such pleading and material particulars, forms the basis of triable issues. Accordingly, in the considered opinion of this Court, in this count the Election Petition cannot be said to be lacking cause of action.

¶170

6.10 However, it is correct that when corrupt practice is specifically pleaded, a separate affidavit in the Form 25 is required to be made, in terms of the aforesaid provision. In the case in hand, this Court after perusal of the pleading as regards corrupt practice in terms of Section 123(6) of the RP Act, 1951, is of the opinion that specific and precise statements are made in terms of section 83(1) of the RP Act, 1951, alleging corrupt practice relatable to Section 123(6) of the Act, 1951, and therefore, a cause of action to proceed with the election petitioner is also disclosed in the aforesaid paragraphs. However, this Court is also of the unhesitant view that as regards the aforesaid paragraph, the affidavit in Form 25 is not inconformity with the mandate of law inasmuch as the affidavit in Form 25 do not contain such paragraphs. However, the Hon’ble Apex Court in the case of Thangjam Arunkumar –vs- YumkhamErabot Singh and Others reported in 2023 SCC Online SC 1058, clarifies that such defect is not fatal. In the case in hand also, the Election Petition contained an affidavit in terms of Form-25 and also a verification. Though the aforesaid paragraph as regards corrupt practice relatable to Section 123(6) of the RP Act, 1951, is not included in the Form-25, however, same is included in the verification and therefore, there are substantial compliance of Section 83(1)(c) of the RP Act, 1951.

¶171

6.11 Now let this Court deals with illegal acceptance of nomination paper,

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more particularly for non disclosure. Though it is vehemently argued that the elected candidate was not aware of the FIR, however, at this stage, this Court cannot go into the correctness of such statement which is subject matter of evidence. Thus, when it is specifically pleaded that there was an FIR against the elected candidate, that the elected candidate was aware of such fact and that such FIR was not disclosed having knowledge, the contention of the learned counsel for the returned candidate that the returned candidate was not aware of such FIR and therefore he could not disclose it, cannot be gone into at this stage which shall be a matter of trial.

¶174

6.12 In this regard, the learned counsel for the returned candidate has placed heavy reliance on the judgment of the Hon’ble Apex Court in Debendra Gangadharrao Fandavis (Supra) . The Hon’ble Apex Court in Devendra Gangadharrao Fadnavis (supra) held that the disclosure of information of criminal cases, where charges have been framed and cognizance has been taken, only are required to be declared and accordingly, it is contended by the learned Senior Counsel that when it is only an FIR and no charges has been framed or cognizance has been taken, such fact need not be disclosed in the Form 26. However, in the considered opinion of this Court, such determination cannot be made applicable in the present case, in view of the amendment of Form-26, which includes disclosure of pendency of an FIR whereas in Devendra Gangadharrao Fadnavis (supra), the Form 26, at that relevant point of time, specifically prescribed disclosure of the cases, which were pending against the candidate, in which, cognizance has been taken and charges have been framed. In

¶175

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the Form 26, applicable in the present case, though such requirement is still there, however, further disclosure of pending case/number of the FIR etc., has also been added. A reading of Section 33A of the RP Act, 1951 read with Rule 4(a) of the Rules, 1961 and Form – 26 applicable in this case in hand, leads to an unhesitant view of this Court that when the nomination was filed, what was required to be disclosed includes a detail of FIR pending against the candidate, other criminal cases, where cognizance has been taken and/or charges has been framed. Thus, when a specific statement is made that an FIR was pending and was known to the candidate and was not disclosed in Form-26, this Court cannot accept the argument of the learned counsel for the petitioner in this regard at this stage.

¶177

6.13 Now coming to the non disclosure of immovable property of a plot of land measuring 150000 Sqmtr at Jullang Village, specific statement is made at paragraph 6.2 in the Election Petition and it is pleaded that it was not disclosed with an intention to influence the voters unduly. The particular of the plot of land is also disclosed in the pleadings. The stand of the Election Petitioner is that he disclosed a land located at Jullang Village at Papumpare and that land is kept as collateral security with the Arunachal Pradesh State Co-operative Bank against loan secured by the Elected Candidate and that the allegation made by the election petitioner is an attempt to dislodge a democratic process with a vexatious and malicious intention, in the considered opinion of this court cannot be a subject matter for determination at this stage, more particularly, when a specific statements in this regard are made.

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6.14 Similar is the case as regards non disclosure of trade license. The defence taken by the elected candidate that the aforesaid firm is a defunct firm and he was a proprietor of that, again is a subject matter of trial and cannot be a ground of rejection of an election petition for want of cause of action, when, there is specific pleadings.

¶180

6.15 Now let this Court deal with the argument of the Returned Candidate as regards absence of pleading of the material effect on the result of the election for such non-disclosure in the Form 26. A specific statement has been made that such non disclosure has been intended to influence the voter unduly. According to the learned counsel for the elected candidate, such statement is not sufficient. On the other hand, it is the contention of the learned counsel for the election petitioner that when there are only two candidates in the fray, and the nomination is wrongly accepted, there is no necessity to prove and plead materials affect of improper of acceptance of nomination. In this regard the learned counsel for the election petitioner has placed heavy reliance on the determination made by the Hon’ble Apex Court in Madiraju Venkataramana Raju (supra). Let this Court deal with such argument now:-

¶181

6.16 The Hon’ble Apex Court in the case of Durai Mutthuswamy –VsN. Nachiappan and Others reported in 1973 2 SCC 45 and in a subsequent judgment in Sri Mairembam Prithviraj @ Prithviraj Singh –Vs- Shri Pukhrem Sharatchandra Singh reported in (2016) 9 SCR 687 held that, if the improper acceptance of the nomination is of the returned candidate, there is no necessity of prove that the election has been materially affected, for the reason

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that the returned candidate would not have been able to contest the election, if his nomination was not accepted.

¶184

6.17 Taking note of the aforesaid two judgments, the Hon’ble Apex Court in Madiraju Venkataramana Raju (supra) held that absence of averments in the election petition to the effect that improper acceptance of Nomination Form of the returned candidate materially affecting the election result cannot be a ground for rejection of an election petition at its threshold under Order VII Rule 11 of the CPC, when the improper acceptance relates to election of the returned candidate. Therefore, in the considered opinion of this Court, such determination made in Madiraju Venkataramana Raju (supra) is squarely applicable in this case inasmuch as in the said case, the Hon’ble Apex Court was dealing with decision on an application under Order VII Rule 11 with similar allegation that is involved in the present case.

¶185

6.18 To some up this point, the election petitioner has made out a cause of action in pleading that the returned candidate failed to furnish required information. The election petitioner is to prove such pleading during the course of hearing of this election petition wherein the elected candidate shall have a right to clear his position by filing written statement and adducing evidence. However, the defence pleaded in the objection filed in this interlocutory application cannot be taken note of at this stage of consideration of an application under Order VII Rule 11, when the statements made are precise and supported by material facts and particulars.

¶186

6.19 It is well settled that the election petition will have to be read as a

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whole while considering an application under Order VII Rule 11 CPC and cannot be dissected sentence wise or paragraph wise to rule that the same does not disclose a cause of action.

¶189

6.20 For the reasons recorded hereinabove, this Court finds no merit in the present application under Order VII Rule 11 of CPC. Accordingly, the same stands dismissed.

¶190

6.21 While parting with the record, it is made clear that observations made in the present order are only for the purpose of deciding the prayer for rejection of the election petition made by the elected candidate and all contentions of the parties raised in the election petitioner or that may be pleaded in the written statement shall remain open.

¶191

JUDGE

¶192

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