Markio Tado Vs Takam Sorang

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Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No. 8260 OF 2012

Markio Tado ... Appellant

Versus

Takam Sorang ... Respondents

J U D G E M E N T

H.L. Gokhale J.

This statutory appeal under Section 116A of the

Representation of the People’s Act, 1951, seeks to challenge the

judgment and order of the Gauhati High Court dated 12.11.2012, allowing

the Election Petition No. 1(AP) of 2009, renumbered as Election Petition

No. 1 (AP) of 2012, filed by the Respondent No. 1 whereby the election of

the appellant from 20-Tali (ST) constituency of the Arunanchal Pradesh

Assembly was declared void, and whereby the first respondent was

declared elected to the State Legislative Assembly from the said

constituency. After passing of the said judgment and order, the appellant

applied for the stay of the said order, and the learned Judge by his order

dated 16.11.2012 stayed the impugned judgment and order for a period

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of 14 days from the date of the said order. He made it clear that the

appellant will have the right to participate in the assembly proceedings

but will not have the right to vote and will not be entitled to any

remuneration as an elected member of the assembly. This appeal,

therefrom, was admitted on 27.11.2012, and by the order passed on that

date by this Court, the above order dated 16.11.2012 was directed to

continue to remain in operation. This interim order has been

subsequently continued until further orders.

2. Facts leading to this appeal are as follows. The appellant and

the respondent No. 1 herein contested the election to the Arunachal

Pradesh Legislative Assembly from 20-Tali (ST) Assembly Constituency

held in October 2009. The respondent no.1 was the sitting MLA from the

said constituency at the time when the election was held, and the

Government formed by the Indian National Congress was in power in the

State. The appellant was a candidate of the People’s Party of Arunanchal

Pradesh (PPA), and the first respondent was that of the Indian National

Congress. The voting took place on 13.10.2009, and the appellant was

declared elected on 22.10.2009, defeating his nearest rival the

respondent No. 1, by 2713 votes. Respondent No. 1 filed Election Petition

No. 01/2009 to challenge the election of the appellant on the ground of

corrupt practice of booth capturing.

3. This 20-Tali (ST) Assembly Constituency consists of two circles

viz. (i) Tali, and (ii) Pipsorang. Each of the circles was having 10 polling

stations. It was alleged in the petition by the first respondent that on

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two polling stations viz. (i) 7-Roing and (ii) 2-Ruhi from circle Tali, boxes

(containing EVMs) were illegally removed by the party workers of the

appellant, and votes in favour of the appellant were cast single handedly.

The genuine voters were not allowed to exercise their voting rights as

they were threatened for their lives by the miscreants of the appellant. It

was claimed that polling agents of the first respondent, at these two

polling stations, jointly reported about the happenings in these polling

stations on 15.10.2009, to the Assistant Returning Officer. It was further

alleged that such incidents also took place in 6 more polling stations.

4. It was stated in para 9 of the petition, that it was necessary to

bring the EVMs and counter foils of Form 17A (register of voters) of these

8-polling stations (mentioned in para-7 of the petition) for forensic test

and other examinations etc. before the Hon’ble Court for proper

adjudication of the case. It was claimed that the votes received by the

appellant in these 8 polling stations were 3763, and if they were deleted

from the votes of appellant, the first respondent would be declared as

elected. It was prayed that the records of (i) register of voters

counterfoils (Form 17-A) of these 8 polling stations described in paragraph

7 of the petition, (ii) EVMs of these 8 polling stations, and (iii) records

relating to 20 Tali (ST) Assembly Constituency be called, and the

appellant be directed to show cause as to why votes cast by booth

capturing in 8 polling stations, in favour of the appellant, should not be

declared as illegal, and the election order dated 22.10.2009 not be

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declared as void, and why the respondent No. 1 should not be declared as

the elected candidate.

5. The petition was contested by the appellant by filing a Written

Statement. He submitted that no unfair means were employed by him, or

by his agents, and stated that the allegation of illegal practice adopted in

8 polling stations is completely false. He submitted that the election was

conducted peacefully with free and fair means. The polling stations were

guarded by police personnel who carried arms and ammunition. There

was no booth capturing or criminal intimidation at all. EVMs and voters’

counterfoils were duly verified at the Receiving Centre, and there was no

need to call for any of these documents, nor was there any question to

declare the election void.

6. Thereafter, the learned Judge by his order dated 8.3.2010

formulated the following issues:- (i) Whether the Election Petition is

maintainable?; (ii) Whether the polling team of 7-Roing polling station

alongwith the EVM were kidnapped on 12.10.2009 by PPA Workers?; (iii)

Whether booth capturing was committed at 2-Ruhi and 5-Guchi polling

stations on 13.10.2009 by PPA workers, including the Petitioner?; (iv)

Whether any offence of booth capturing was committed at any of the

other 5 polling stations; (v) Whether Annexures 1 to 9 to the Election

Petition are forged, fabricated and an afterthought?; (vi) Whether the

election of the returned candidate Markio Tado is liable to be declared

void?; and (vii) Whether the Election Petitioner is entitled to be declared

elected?

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7. It is relevant to note that, before the evidence could start, the

first respondent filed Interlocutory Application No. 6 of 2010 in the said

Election Petition on 29th March, 2010. In para 1 thereof he submitted as

follows:-

“1. That your applicants beg to state and submit that some thousand of voters of those 8 polling stations viz. (i) Giba, (ii) Tungmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5-Guchi, (vii) 8-Dotte, (viii) 2-Ruhi of 20 Tali (ST) Assembly Constituency have double entry in different 38 polling stations of 13-(ST) Itanagar Assembly Constituency. So far your applicant knowledge is concerned about 80% of the voters of 20-(ST) Tali Assembly Constituency from those 8 polling stations viz. (i) 6-Giba, (ii) 4-Tugnmar, (iii) 15-Richik, (iv) 7-Roing, (v) 10-Yarda, (vi) 5-Guchi, (vii) 8-Dotte, (viii) 2-Ruhi have cast their votes at 13-(ST) Itanagar Assembly Constituency and not at 20-(ST) Tali Constituency.”

Thereafter, he gave the list of 38 polling stations of Itanagar

constituency. He claimed that the total number of such voters, who had

their names in those 38 polling stations, was 1304. He, therefore, prayed

that the record of register of voters counterfoils (Form 17-A) of the above

38 polling stations of 13-(ST) Itanagar Assembly Constituency from the

District Returning Officer, Distt. Papum Pare be called.

8. This application was opposed by the appellant. The learned

Single Judge noted the submissions on behalf of the respondent No. 1. He

also noted the submissions on behalf of the appellant that there was no

allegation of double enrollment, and no issue had been framed in this

respect in the election petition, and therefore the application was liable to

be dismissed. Having noted the submissions, the learned Single Judge

rejected the said application by his order dated 31.03.2010 observing “I

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am of the considered view that calling of records as sought for by the

applicant is not justified at this stage.”

9. When the evidence was recorded, PW (1) stated that 1 person

voted for another person. PW (2) stated that she was not allowed to enter

the polling station, and yet she stated that there was single handed

voting. PW (3) was the polling agent of the respondent No. 1, but he did

not state that he lodged any complaint about whatever had happened at

the polling station. PW (4) stated that he was not allowed to enter the

polling station. He stated that the workers of both the parties were not

allowed to enter the polling station, but at the same time he said that the

polling agents of both the parties were inside the polling station. He has

filed no complaint. PW(5) made some interesting statements. He stated

that he was the agent of the Indian National Congress, and he was forced

to vote for his candidate. He also stated that he did not file any complaint

with the presiding officer. PW (6) also made similar interesting

statements in the sense that it was proposed that a few votes be casts in

favour of Indian National Congress. It is relevant to note that at the

polling station, where he cast his vote, Indian National Congress got 42

votes. PW (7) was the polling agent of the first respondent at the Roing

polling station. He claims to have lodged the complaint, but he does not

know who wrote that complaint. PW (8) stated in his cross-examination

that he does not know whether any polling officer was kidnapped. PW (9)

makes an interesting statement that he was forced to cast some votes for

the Indian National Congress.

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10. Thereafter, the first respondent PW (10) went into the witness

box on 4.4.2010. In his examination in chief, he stated that he had sent a

fax message to the Returning Officer of 20-Tali (ST) Assembly

Constituency on 15.10.2009 alleging the booth capturing of 2-Ruhi and 7-

Roing polling stations. He stated that he had complained about the booth

capturing in 6 more polling stations, and produced copies of complaints.

He stated that there was single handed voting in favour of the appellant,

and first respondent’s voters were threatened and not allowed to cast

their votes. He further stated that a large number of voters had double

entries in the electoral roll of 20 Tali (ST) as well as Itanagar (ST)

Assembly Constituency. They had actually cast their votes at 38 different

polling stations of 13-(ST) Itanagar Assembly Constituency, and in their

place votes were cast in Tali Constituency by the miscreants of the

appellant. The electoral rolls of the two constituencies were to be

exhibited. He further pointed out that a vote was cast against a dead

person by name Markio Tama from 2-Ruhi polling station, and the death

certificate of the person concerned was produced.

11. The first respondent, in his cross examination on 9.6.2010,

accepted that he had not made any averments in the election petition

regarding double enrollment of the voters in the two Assembly

Constituencies. He accepted that he was aware that the final electoral

rolls were published by the authorities concerned before the election was

held, prior to which the draft roll was published for information of the

voters concerned, and that he did not lodge any complaint before the

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authorities concerned about the double enrollment in the two

constituencies. He explained it by stating that he did not know that such

double enrollment had taken place. He could not say who actually cast

the vote for Markio Tama, who had already expired.

12. The first respondent accepted that he had appointed his

polling agents for all the polling stations. He knew about the duties of the

polling agents which included raising objection in case of detection of any

impersonation during the polling time, before the Presiding Officer

concerned by filling up a prescribed form alongwith a fee of Rs. 2/-. He

stated that his polling agents were not allowed to enter into the polling

booths, and the candidates appointed by the appellant acted as fake

polling agents for the first respondent. He however, accepted that he has

not stated in election petition that the candidates appointed by the

opposite party had acted as fake polling agents for him. He further

accepted that his complaint to the Returning Officer did not mention all

the 8 polling stations. It mentioned only about 2 polling stations. He also

accepted that he did not mention the names of persons involved in booth

capturing. He stated in his examination-in-chief itself as follows-

“I have no direct evidence regarding casting of votes by impersonation by the booth capturing party but it can be proved if the finger prints and thumb impression taken and the signatures put in Form 17A of the respective polling station are compared by the respective votes.”

13. The first respondent had alleged that in two polling stations

viz. Ruhi and Roing, booth capturing had taken place which was on the

basis that in Ruhi the first respondent got only 3 votes as against

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appellant getting 697 votes, and in Roing he got only one vote as against

the appellant getting 1196 votes. On this aspect, it was put to him that

there were two circles in this constituency viz. Tali and Pipsorang. The

above two polling stations were in Tali Circle. The first respondent

accepted that the returned candidate secured no vote in 11-Vovia polling

station. He also accepted that the returned candidate secured only 7

votes in 13-Zara polling station, both falling in Pipsorang circle.

Thereafter, he accepted that

“It may be correct that securing less vote by a candidate may be due to his less attachment to the people of a particular area and it may also be the one of the reasons for losing the election.”

The first respondent also accepted that Micro Observers were

appointed in all the polling stations and they were provided with digital

cameras for their use, as and when required during the election, for all

the purposes.

14. It was at that stage that the first respondent moved another

application viz. Misc. Case No. 05(AP) of 2010 on 29th June, 2010. In that

application he repeated that some of the voters of the 8 polling stations

mentioned earlier, had double entries in different 38 polling stations of 13

Itanagar (ST) Assembly Constituency. In para 2 he stated that 30% of

voters of Tali Constituency, from those 8 polling stations, had cast their

votes in Itanagar and not in Tali, and in their place the double voting was

effected on behalf of the appellant, and therefore it was necessary to get

the record of the voters’ counterfoils (in Form 17A) from the 38 polling

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stations under 13-(ST) Itanagar Assembly Constituency. The appellant

opposed this application. The counsel for the appellant submitted that

this was a fishing inquiry to improve the case. This time however, the

learned Judge observed:

“This allegation sounds to be new one, but when it is closely examined, it also comes under the purview of booth capturing because votes by impersonation is one of the modus operandi adopted towards accomplishment of securing votes by use of illegal method or illegal resource.”

15. The learned Judge referred to a judgment of this Court in Hari

Ram Vs. Hira Singh reported in AIR 1984 SC 396, that electoral rolls

and counter foils should be called sparingly, and only when sufficient

material is placed before the Court. He also referred to a judgment of this

Court in Fulena Singh Vs. Vijoy Kr. Sinha reported in 2009(5) SCC

290 wherein it was held that inspection of the record of register of voters

in Form 17-A would be permissible where a clear case is made out. The

learned Judge held that the official record would be the most reliable

evidence to decide as to whether there was impersonation, and thereafter

passed the order calling for the record of registers of voters’ counterfoils

in form 17A from 38 polling stations of 13-(ST) Itanagar Assembly

Constituency, which order was challenged by the appellant by filing one

SLP earlier.

16. This earlier petition was numbered as Civil Appeal No. 1539 of

2012 which came to be decided by this Court on 2.12.2012. It was

pointed out on behalf of the appellant that the Election Petition was filed

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on the basis of corrupt practice of booth capturing, and what was being

canvassed on behalf of the respondent No. 1 was the allegation of

impersonation/double voting on the part of the appellant. It was

submitted on behalf of the appellant that booth capturing is a specific

corrupt practice under section 123 (8) read with section 135A of 1951 Act.

Booth capturing involves use of force, whereas impersonation or double

voting is on the basis of deception. This submission was accepted by this

Court. This was apart from the fact that impersonation or double voting

would lead to improper reception of votes, which is another ground for

declaring an election to be void under section 100 (1) (d) (iii) of the Act,

and this ground was not pleaded in the petition nor was any issue framed

thereon for trial. It was canvassed on behalf of the appellant that double

voting or impersonation could not be considered as facets of booth

capturing which was also accepted by this Court.

17. This Court while deciding Civil Appeal No. 1539 of 2012 noted

that there was hardly any evidence to justify any plea of impersonation or

double voting. Therefore, this Court held in the said appeal, that it was

thus obvious that having failed to place any material with respect to

either booth capturing or impersonation, the first respondent was trying

to make fishing and roving inquiry to improve his case by calling for the

record of the voters register from Itanagar Constituency, in support of his

grievance of double voting. In the absence of any evidence with respect

to the persons who, at the instance of the appellant, allegedly captured

the booths or made double voting or impersonation in Tali Constituency,

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no such inference could have been drawn. The learned Single Judge,

therefore, was clearly in error in allowing the second application made by

the first respondent.

18. As seen from the above, the learned Judge while deciding

Misc. Case No.5(AP) of 2010 had relied upon the judgment of this court in

Fulena Singh (supra) to justify his direction to produce the record of

register of voters’ counterfoils in Form 17-A of 38 polling stations of 13-

(ST) Itanagar constituency. This court, therefore, while deciding Civil

Appeal 1539 of 2012 explained the judgment in Fulena Singh, and the

correct legal position with respect to the production of such records in

court. It referred to the Constitution Bench judgment of this court in Ram

Sevak Yadav v. Hussain Kamil Kidwai, reported in AIR 1964 SC

1249, which has held that an order for inspection cannot be granted as a

matter of course having regard to the secrecy of the ballot papers. To

seek such an order two conditions are required to be fulfilled:

(i) that the petition for setting aside an election contains an

adequate statement of the material facts on which the petitioner

relies in support of his case; and

(ii) the tribunal is prima facie satisfied that in order to decide the

dispute and to do complete justice between the parties inspection

of the ballot papers is necessary.

But an order for inspection of ballot papers cannot be made to support

vague pleas made in the petition, not supported by material facts, or to

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fish out evidence to support such pleas. In the present case, there was no

material whatsoever to justify the production of the register of

counterfoils of votes in Form 17-A and therefore, this court allowed the

said Civil Appeal and dismissed Misc. Case (EP) No. 05 (AP) of 2010 by

judgment and order dated 2.2.2012

19. Facts which had come on record clearly showed that the first

respondent received overwhelming votes in some polling stations,

whereas the appellant received similarly overwhelming votes in other

polling stations. The first respondent had in fact accepted that it

depended on the popularity of the candidate whether he would receive

more votes in any particular voting station. Assuming that the ground of

improper reception of votes could be raised for declaring the election to

be void under section 100 (1) (d), this Court noted in the decision of C.A

No. 1539 of 2012 as follows:-

“28. Besides, the ground of improper reception requires a candidate to show as to how the election in so far as it concerns the returned candidate was materially affected, in view of the requirement of Section 100 (1) (d) of the Act of 1951. First respondent has stated that there were some 1304 double entries of voters. The allegation of respondent No.1 on evidence was only with respect to Roing and Ruhi polling station. The votes received by the appellant in both these polling stations put together come to 1873. The appellant has won with a margin of 2713 votes. That being so the second application could not have been entertained even on that ground in the absence of prima facie case that the result of the election had been materially affected.”

20. Therefore, this Court went into the issue as to whether the

record of the voters’ counterfoils in Form 17 (A) from 38 polling station of

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13 Itanagar (ST) Assembly Constituency could be called. It examined the

relevant provisions of Rule 93 of Conduct of Elections rules, 1961 and the

judgments governing the field, and held in this matter also as in Ram

Sevak Yadav (supra), that an order for inspection of ballot papers could

not be granted to support the vague pleas made in the petition not

supported by material facts or to fish out the evidence to support such

pleas. This Court therefore, allowed that appeal and set aside the

judgment and order dated 14.9.2010 and dismissed Misc. Case No. 5

(AP)/2010 dated 29.6.2010. The judgment in Civil Appeal 1539 of 2012 in

Markio Tado Vs. Takam Sorang and Ors. is reported in 2012 (3) SCC

236.

21. In this background when the matter proceeded further there

was no occasion for the Court to once again call for that record. The

learned Judge still passed an order on 19.3.2012 on Misc. Case (EP) 06

(AP) of 2010 holding that:-

“it is considered expedient to send the registers of voters (Form 17A) which were already procured from the District Election Authority under sealed cover to the Director of Regional Forensic Science Laboratory (FSL), Police Training Centre, Banderdewa, Arunachal Pradesh requesting him to conduct scientific examination and verification of signatures/finger prints appearing in Form 17A and to ascertain as to whether the thumb impression and signatures contained and recorded in Form 17A (voters register) were put single handedly and fraudulently by few persons as a measure of impersonation of the genuine voters concerned and after such scientific examination/verification to submit report to the Registry of this Court is sealed cover within 3rd of May, 2012. The registry was directed to take steps accordingly.

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This order dated 19.3.2012 passed by the learned Judge was challenged

by the appellant by filing Special Leave Petition 12707 of 2012, by

pointing out that such an order could not be made in the teeth of the

judgment and order rendered by this Court in Civil Appeal No. 1539 of

2012. However, the appellant, preferred to withdraw the SLP No. 12707 of

2012 subsequently, with a liberty to agitate the questions raised therein,

if required, when the main Election Petition was decided.

22. The learned Judge proceeded to examine court witnesses

including finger print expert, CW3. Thereafter, the court examined the

defence witnesses, and after hearing the arguments of the counsel for

both the parties allowed the Election Petition, and held that the election of

the petitioner was void. On the basis of the calculations of votes made by

the learned judge, he held that the first respondent had received more

votes, and therefore, declared him as elected from the constituency

concerned. It is this order which is under challenge.

23. Now, as can be seen from the narration above, the Election

Petition was filed only on the ground of booth capturing. The respondent

No. 1 himself accepted that he could not name any person involved in the

act of booth capturing. The evidence on record clearly showed that, apart

from some allegations, there was no material evidence placed in support

thereof. The petitioner tried to claim impersonation and double voting as

a facet of booth capturing. This submission was already rejected by this

Court while deciding C.A No. 1539 of 2012 (supra) by holding that

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impersonation and double voting would amount to deception and it will be

a facet of improper reception of votes and not booth capturing. Booth

capturing involves use of force and that was not established. The petition

was not filed on the ground of improper reception of votes. Even if that

ground was to be looked into, the respondent No. 1 accepted in his

evidence that he had no direct evidence regarding casting of votes by

impersonation.

24. The learned judge has clearly transgressed the limits of his

jurisdiction, by going into the exercise of calling for the handwriting and

finger print experts, and comparing the voters’ signatures and finger

prints with the help of the records in Form 17A, when that was clearly

held to be impermissible in the present case itself. This is apart from the

fact that this has resulted into a waste of the time of the Court, which is

so precious. The evidence was recorded on a number of dates and so

many witnesses, including public officers, were called when their evidence

was not required. It would be relevant to refer to the observations of this

Court in paragraph 12 of Azar Hussain v. Rajiv Gandhi reported in AIR

1986 SC 1253 in the context of rejecting an election petition summarily,

at the threshold, where such a case is not made out. The observations are

to the following effect,

“12. Learned counsel for the petitioner has next argued that in any event the powers to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. In substance, the argument is that the court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers

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under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. With respect to the learned counsel, it is an argument which it is difficult to comprehend. The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. ………..”

(emphasis supplied)

25. The judge clearly ignored that the law declared by this Court

is binding on all courts within the territory of India under Article 141 of the

Constitution of India, and judicial discipline required him to follow the

mandate of the Constitution. He entered into an impermissible exercise,

and deleted the votes received by the appellant which he considered to

be tainted votes. It is quite shocking to see that the learned judge has

proceeded to delete the votes of the appellant from 8 polling stations,

although the grievance was only about Ruhi and Roing polling stations.

By making these deductions, he came to the conclusion that the

respondent No. 1 had received 826 votes more. As can be seen from

paragraph 28 of the judgment, rendered in Civil Appeal No. 1539 of 2012,

that at best the case of the first respondent was that there were double

entries of voters in 1304 names. The allegation was only with respect to

two polling stations. In those polling stations, the appellant had received

1873 votes. Even if these 1304 votes were to be deleted, it would not

affect the result materially since the appellant had won with a margin of

2713 votes. The learned judge, therefore, ignored that even if the ground

of improper reception of votes under section 100(1)(d)(iii) was to be

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taken, the respondent no.1 had failed to establish that the result of the

election of the appellant had been materially affected by such improper

reception of votes. The decision of the learned judge was therefore

clearly flawed and untenable.

26. Thus, the learned judge went into the counterfoils of the

voters inspite of the fact that this court had already ruled in the judgment

in C.A. 1539 of 2010, that in the facts of the present case, no case was

made out for calling of the counterfoils. It is not that he was unaware of

the judgment rendered by this court. He referred to this judgment in Para

9(i) by stating that CA No. 1539 of 2010 was preferred against his

judgment and order dated 14.9.2010. Thereafter, he specifically noted

“the said Civil Appeal was allowed vide judgment and order dt. 2.2.2012

dismissing the aforesaid M.C. (EP) No. 5 (AP) of 2010 under Section 83(1)

of the R.P. Act as reported in (2012) 3 SCC 236.” Thereafter, however he

proceeded to act exactly contrary to the direction emanating from the

dismissal of M.C. (EP) No. 5 (AP) of 2010, which amounts to nothing but

judicial indiscipline and disregard to the mandate of Article 141 of the

Constitution of India. This is shocking, to say the least, and most

unbecoming of a judge holding a high position such as that of a High

Court Judge. We fail to see as to what made the judge act in such a

manner, though we refrain from going into that aspect.

27. Before we conclude, we may state that it is unfortunate that

such acts of judicial impropriety are repeated inspite of clear judgments of

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this court on the significance of Article 141 of the Constitution. Thus, in a

judgment by a bench of three judges in Dwarikesh Sugar Industries

Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Anr., reported

in (1997) 6 SCC 450, this court observed,

“32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.”

We may as well refer to Para 28 of the State of West Bengal & Ors. v.

Shivanand Pathak and Ors., reported in (1998) 5 SCC 513, wherein

this court observed,

“If a judgment is overruled by the higher court, the judicial discipline requires that the judge whose judgment is overruled must submit to the judgment. He cannot, in the same proceedings or in collateral proceedings between the same parties, rewrite the overruled judgment…”

28. In the circumstances, we have no option but to allow this

appeal and set aside the impugned judgment and order rendered by the

learned judge of Gauhati High Court dated 12.11.2012. The Election

Petition filed by the respondent no. 1, bearing Election Petition No. 1(AP)

of 2009, renumbered as Election Petition No. 1 (AP) of 2012, shall stand

dismissed. The parties will bear their own costs.

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………….. ……………………..J. ( G.S. Singhvi )

…………………………………. .J.

( H.L. Gokhale )

New Delhi

Dated: May 10, 2013

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MARKIO TADO Vs TAKAM SORANG

MARKIO TADO Vs TAKAM SORANG