T NENGZAKHAM Vs. STATE OF MANIPUR

JUDGEMENT

(1.) THE sole question which falls for consideration in this writ petition is, whether this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India can direct the Returning Officer/District Election Officer, Churachandpur to dispose of the representation filed by the petitioner on 29.01.12 and 01.02.12 for reference to the Election Commission of India' According to Mr. Serto T. Kom, the learned counsel for the petitioner, the direction prayed for by the petitioner will in no way retard or interrupt or protract or stall the election process, and such direction may be issued by this Court to enable him to contest the election in a meaningful and purposeful manner. The learned counsel contends that the error complained of by the petitioner is an error contemplated by Section 58(b) of the Representation of the People Act, 1950 ("the Act" for short), and the Returning Officer has acted in breach of this provision in not referring the complaint of the petitioner to the Election Commission of India for taking appropriate action under Section 58(2) of the Act. Mr. R.S. Reisang, the learned Senior State Counsel, however, vehemently opposes the prayer and contends that the writ petition, if allowed, will have the effect of undue interference by this Court in the election process, which is not permissible in terms of the decision of the Apex Court in C. Subrama-nyam Vs. K. Ramajaneyullu & Ors., (1998) 8 SCC 703; The Election Commission of India Vs. Shivaji, AIR 1988 SC 61; Mohinder Singh Gill Vs. The Chief Election Commissioner, AIR 1978 SC 851 and Sehpu Haokip Vs. Speaker, Manipur Legislative Assembly, 1998 (2) GLT 133. It is his submission that the subject-matter of the complaint lodged by the petitioner is a matter which can be agitated by him only by way of an election petition after the declaration of the result of the election.

(2.) THE factual background prompting the petitioner to move this writ petition may now be noticed. The petitioner filed the nomination paper for the ongoing election to the Manipur Legislative Assembly from 56-Thanlon (ST) Assembly Constituency in the name of "T. Nengzakham", which, according to him, is his correct name. He belongs to a Paite tribe of Manipur. However, when the election was held on 28.1.2012, he found to his dismay that his correct name was not displayed in the Electronic Voting Machine (EVM) and was, instead, displayed as "Nengzakham" thereby omitting the prefix "T." therefrom. According to the petitioner, this deprived him of his valuable right to be properly and correctly identified by the concerned voters as one of the contesting candidates and, therefore, of his chance of winning the election. It is his case that the prefix "T" stands for the name of his clan, namely, "Tombing" and without this prefix, he cannot be identified for the simple reason that there are a number of persons belonging to Paite Tribe in Manipur having the same name; even in the electoral roll for 56/19 Polling Station in respect of Thanlon "B" House No. 74, Sl. No. 296 GCTO107664, the name of Nengzakham, which is not the name of the petitioner herein, also found a place. Aggrieved by the error in recording his name in the EVM, which is likely to have disastrous consequences for him, he immediately approached the respondent No. 3 on 29.1.2012 and again on 1.2.2012 by filing written representations for displaying his correct name in the EVM and thereafter order re-poll for all the polling stations of the 56/Thanlon Assembly Constituency in accordance therewith. The respondent No. 3 did not dispose of his representations. This is how this writ petition has been filed.

(3.) A cursory look at Section 58(1)(b) of the Act will show that once an error in displaying the name of the petitioner as entered by him in his nomination form was brought to the notice of the respondent No. 3, it was for him to examine the nature of the error complained therein and if he was prima facie satisfied that the error or irregularity in the procedure complained of was such as likely to vitiate the poll, he was statutorily oblige to report the error forthwith to the Election Commission of India, which should then act in accordance with Section 58(2) of the Act. In the instant case, the error in displaying the name of the petitioner in the EVM was reported to the Returning Officer/District Election Officer on 29.1.2012 i.e. a day after the election vide the letter at Annexure-A/3. The Returning Officer apparently did not immediately take action upon such complaint. This prompted him to file another representation on 1-2-2012 vide Annexure-A/4. No action was apparently taken by the Returning Officer even after this whereupon this writ petition came to be filed by the petitioner. The receipt of those representations by the respondent No. 3 was not denied by the learned State counsel. His only contention, as already noted, is that this Court under Article 226 of the Constitution has no jurisdiction to interfere with the election process and that if the petitioner is aggrieved by the conduct of the election including the error pointed out by him, his remedy lies in an election petition after the declaration of the result of the election and not before. In my judgment, the entertainment of this writ petition, on the peculiar facts of this case, will not amount to retarding, interrupting, protracting or stalling the election proceedings. This Court is not staying or halting the election process; it merely wants the Returning Officer and the Election Commission to discharge the duty imposed upon them by the statute. The Returning Officer has failed to exercise the jurisdiction vested in him by law. Normally, in the inimitable words of Justice Krishna Iyer, natural justice involves the irritating inconvenience for men in authority, of having to hear both sides since notice and opportunity are its marrow, but that is no excuse to ignore or circumvent a statutory duty imposed upon them. By allowing this writ petition, it should not be construed that I have already adjudged the tenability or otherwise of the complaint made by the petitioner. I have not nor do I intend to do so; that will be beyond my jurisdiction and will amount to usurping the functions legitimately belonging to the Returning Officer or the Election Commission. All that I say is that the Returning Officer should have disposed of the representation of the petitioner in accordance with law after observing the principles of natural justice. For example, if he determines that the error complained of does not fall within the four corners of Section 58(1)(b) of the Act, he need not report the same to the Election Commission, but a decision he must take one way or the other. Observance of principles of natural justice does not, however, always or necessarily include personal hearing of the complainant. In the view that I have taken, the proposition of law laid down by the Apex Court that this Court under Article 226 of the Constitution should not interfere with the election process until the declaration the result of the election does not, and cannot, mean that it cannot direct the Election Commission or its subordinates to carry out their statutory duties so long as such direction will not have the effect of retarding, interrupting, protracting or stalling the election proceedings. After all, if the error complained of is determined by the Election Commission to be an error contemplated by Section 58(1)(b) of the Act, it may consider declaring the poll in that particular constituency to be void and appoint a day, fix the hours, for taking a fresh poll at that polling station or place, etc. However, if it is satisfied that the error or irregularity in procedure complained of is not material, it may dismiss the complaint. This much exercise is contemplated by the statute even before the completion of the election process in order to correct or smoothen the progress of the election proceedings. Failure to undertake this exercise will attract the jurisdiction of this Court under Article 226 of the Constitution. After all, this is what a writ of mandamus is meant for.