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2006 DIGILAW 296 (ORI)

Biram Majhi v. Pramila Giri @ Nayak

2006-04-13

M.M.DAS

body2006
ORDER M. M. DAS, J. : The respondent in the Election Petition, who is the returned candidate, previously filed Misc. Case No. 11 of 2005, inter alia, praying to hear the question of maintainability of the Election Petition as a preliminary issue. 2. By order dated 3.3.2006, this Court after taking into consideration various case laws cited by the respective parties and on analysing the facts involved in the case and holding that Order 14 of the Code of Civil Procedure is applicable to an Election Petition filed under the Representation of the People Act, 1951 (hereinafter referred to as ‘the Act’), came to the conclusion that by applying Order 14 C.P.C., would be expedient in the interest of justice that all issues framed should be taken up for hearing together and not in a piece meal manner. 3. Now, again the respondent has filed Misc. Case No.4 of 2006 praying for recalling or modifying the order dated 3.3.2006 passed in Misc. Case No.11 of 2005. On hearing the submissions made by the learned counsel for the respective parties, I do not find any reason for either recalling or modifying the said order dated 3.3.2006 passed in Misc. Case No. 11 of 2005. The Misc. Case No.4 of 2006 is, therefore, rejected. 4. The other Misc. Case Petition bearing Misc. Case No.5 of 2006 has also been filed by the respondent with a prayer to dismiss the Election Petition No.1 of 2004 as it does not dis¬close any cause of action for filing the same. Mr. A. K. Mohapatra, learned counsel for the respondent-applicant submitted that a bare reading of the Election Petition will go to show that the same does not disclose any cause of action far less any triable issue. He vehemently argued that the statements made in the Election Petition do not contain any mate¬rial facts and supporting documents have not been produced by the election petitioner to show that the respondent does not belong to Schedule Caste and her nomination paper has been wrongly ac¬cepted. He, therefore, submitted that the pleadings as set out in the Election Petition does not satisfy the provision of Section 81 (1) of the Act and, thus, the Election Petition is liable to be dismissed at the threshold. Mr. He, therefore, submitted that the pleadings as set out in the Election Petition does not satisfy the provision of Section 81 (1) of the Act and, thus, the Election Petition is liable to be dismissed at the threshold. Mr. Mohapatra further submitted that the candidature of the respondent as Scheduled Tribe candi¬date in the election held in the year 2000 was never challenged by the present petitioner who was also a contestant. He, there¬fore, submitted that the challenge made by the petitioner in the present case is hit by the principle of estoppel, waiver and acquiescence. He also contended that the petitioner having not objected to the candidature of the respondent before the Return¬ing Officer, he cannot do so in the present petition which seeks to make a fishing enquiry and this Court while deciding an elec¬tion petition is functioning as a Tribunal which is to proceed as per the provisions of the Act. An election petition must be strictly construed as per the law and should strictly comply with the provisions of the Act and cannot be guided by notions of common law and principles of equity. The election petitioner must state all particulars in his petition, failing which the same would be liable to be rejected. Mr. Mohapatra vehemently argued that the status of the respondent as to whether she belongs to Scheduled Tribe community or not, cannot be decided in an elec¬tion petition. In support of his submission, Mr. Mohapatra relied upon a plethora of judicial pronouncements. But for the sake of brevity, I think that it is not necessary to recapitulate all those decisions for appreciating the contentions raised by Mr. Mohapatra and swell the volume of this order. It would suffice to refer to a few of the decisions cited by him which are the cases of Bhagwati Prasad Dixit “Ghorewala” v. Rajeev Gandhi, A.I.R. 1986 S.C. 1534, F.A. Sapa etc. etc. v. Singora and others etc. A.I.R. 1991 S.C. 1557, M. Budda Prasad v. Simhadri Satyanarayan Rao and others, A.I.R. 1993 S.C. 1178, Ajay Kumar Poeia v. Shyam and others, A.I.R. 2005 S.C. 1941 and Maksudan Raut and others v. State of Bihar and others, A.I.R. 1983 Patna 186. 5. Mr. etc. v. Singora and others etc. A.I.R. 1991 S.C. 1557, M. Budda Prasad v. Simhadri Satyanarayan Rao and others, A.I.R. 1993 S.C. 1178, Ajay Kumar Poeia v. Shyam and others, A.I.R. 2005 S.C. 1941 and Maksudan Raut and others v. State of Bihar and others, A.I.R. 1983 Patna 186. 5. Mr. P. Acharya, learned counsel appearing for the Election Petitioner, on the other hand, submitted that the prin¬ciples laid down in the above case laws will not be applicable to the facts of the present case. In reply to the contention of Mr. Mohapatra that the respondent previously also contested from the said reserved seat as a Scheduled Tribe candidate and the present election petitioner was also a contestant but no objection was ever raised by any candidate regarding the status of the respond¬ent that she does not belong to the Scheduled Tribe, Mr. Acharya relied upon the decision in the case of Satrucharla Vijaya Rama Raju v. Nimmaka Jaya Raju and others, A.I.R. 2006 S.C. 543 and submitted that the Supreme Court has conclusively laid down that every election furnishes a fresh cause of action and even an adjudication in an election petition does not operate as res judicata in a subsequent application. He further submitted that in view of the ratio of the above decision even in spite of the fact that in the previous election, the status of the respondent as a Scheduled Tribe candidate was not questioned, that will not be a bar for the Election Petitioner to maintain the present Election Petition. He further submitted that the inaction of the petitioner in not challenging the status of the respondent as a Scheduled Tribe candidate, in the last election cannot also bar filing of the present petition on the ground of constructive res judicata. 6. Considering the above submissions of the learned coun¬sel for the respective parties, I find that the following ques¬tions are required to be determined: (i) Whether the election petition in the present case can be rejected at the threshold by applying Section 81(1) of the Act on the ground that it does not disclose any cause of action ? 6. Considering the above submissions of the learned coun¬sel for the respective parties, I find that the following ques¬tions are required to be determined: (i) Whether the election petition in the present case can be rejected at the threshold by applying Section 81(1) of the Act on the ground that it does not disclose any cause of action ? and; (ii) Whether by the inaction of the Election Petitioner in not questioning the status of the respondent in the previous elec¬tion, it can be construed that the principles of constructive res judicata, estoppel, waiver and acquiescence, would be applicable to the present case and the Election Petitioner would be held to be forbidden from raising such a dispute ? 7. Section 81 of the Act reads as follows : “81. Presentation of petition -(1) An election petition calling in question any election may be presented on one or more of the grounds specified in (Sub-section (1)) of Section 100 and Section 101 to the (High Court) by any candidate at such election or any elector (within forty five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates) Explanation : xxx xxx (3) xxx xxx” A bare reading of the above Section would go to show that an election petition can be filed on one or more of the grounds specified in Sub-section (1) of Section 100 and Section 101 to the High Court. In the order dated 3.3.2006, after discussing the facts involved in the present case, it has been held that the grounds specified in the Election Petition come under Section 100 of the Act and that as specified in Section 100 of the Act if the High Court is of the opinion that the result of the election in so far as it concerns a returned candidate has been materially affected by improper acceptance of any nomination paper, the High Court shall declare the election of the candidate to be void. 8. In the case of Bhagwati Prasad Dixit (supra), the question that was raised before the Supreme Court was, whether the returned candidate being married to a foreign citizen and having acquired property in a foreign country, ceased to be a citizen of India. 8. In the case of Bhagwati Prasad Dixit (supra), the question that was raised before the Supreme Court was, whether the returned candidate being married to a foreign citizen and having acquired property in a foreign country, ceased to be a citizen of India. The Supreme Court, no doubt held that whatever may be the proceeding in which the question of loss of citizenship of a person arises for consideration, the decision in that pro¬ceeding on the said question should depend upon the decision of the authority constituted for determining the said question under Section 9(2) of the Citizenship Act, 1955. But, however, the Supreme Court presuming that the High Court has jurisdiction to decide the said question held that he allegation made in the election petition regarding acquisition of citizenship of a for¬eign country by the respondent were wholly inadequate to record any finding in favour of the appellant since it is not shown that there is any provision in our law which provides that a person would automatically lose his Indian citizenship on his marriage with a person who is a citizen of a foreign country or by acquir¬ing property in a foreign country. However, in the present case, the primary question raised in the election petition is with regard to the status of the re¬spondent and the pleadings in the election petition as supported by documents annexed thereto with respect to the allegation that the respondent does not belong to the Scheduled Tribe community have been duly made and there is no other specific legislation to conclusively decide such a question so as to debar the jurisdic¬tion of this Court to decide the said question of status of the respondent. It is, therefore, inevitable to conclude that the aforementioned decision of the Supreme Court is clearly distin¬guishable on facts from the present case. 9. In the case of F.A. Sapa etc. etc. (supra), the Supreme Court was dealing with an allegation of corrupt practice raised in an election petition. While doing, the Supreme Court inter¬preting Section 81(3) of the Act held that : (i) the election petition should be accompanied by as many as copies thereof as there are respondents; and (ii) every such copies shall be attested by the petitioner under his own signature to be a true copy of the petitioner. While doing, the Supreme Court inter¬preting Section 81(3) of the Act held that : (i) the election petition should be accompanied by as many as copies thereof as there are respondents; and (ii) every such copies shall be attested by the petitioner under his own signature to be a true copy of the petitioner. It was further held that if a document does not form an integral part of the election petition, it is merely referred to in the petition or filed in the proceedings,as evidence of any fact, failure to supply a copy thereof will not prove fatal. I am constrained to observe that the ratio of the said decision is wholly inapplicable to the present case as no such contingencies arise in the instant case. 10. In the case of M. Budda Prasad (supra), the facts giving rise to the said case disclose that five persons including the respondents therein contested the election to the Andhra Pradesh Legislative Assembly from a particular constituency wherein the respondent was returned as a successful candidate. The appellant was a voter of the Constituency who challenged the election before the Andhra Pradesh High Court. The election petition was dismissed by the High Court against which the appeal was carried to the Supreme Court. On scrutinizing the materials on record, the Supreme Court declined to interfere with the order of the High Court. No question of law appears to have been decided by the Supreme Court in the said case and, therefore, reliance on the said case law placed by Mr. Mohapatra is mis-conceived. 11. In the case of Maksudan Raut and others (supra), the Patna High Court was dealing with a case of “no confidence mo¬tion” under the Bihar Panchayat Samity and Zilla Parishad Act, 1962. Interpreting the validity of the meeting of “no confidence motion” it was held in the said decision that the petitioners having attended subsequent meetings are estopped from challenging the validity of the meetings in which the resolution was passed for convening a “no confidence motion”. In my view, the ratio of the said decision cannot be made applicable to the present case. Hence, contention of Mr. In my view, the ratio of the said decision cannot be made applicable to the present case. Hence, contention of Mr. Mohapatra that the petitioner having contested the election with the respondent in the previous elec¬tion in the year 2000 and having not objected to the nomination of the respondents as a Scheduled Tribe candidate is debarred from raising the said question in the present application and that the principles of waiver, estoppel and acquiescence will be applica¬ble to the present case, are unacceptable. 12. In the case of Ajay Kumar Poeia (supra), I find that the Supreme Court quoting paragraph-4 of the Election Petition which mentioned the grounds of challenge to the election under the heading “GROUNDS” held as follows : “.........The said paragraphs contains the grounds for setting aside the improper acceptance of the nomination papers filed by the first respondent and cannot be treated to be state¬ments containing the requisite material facts, which if proved, would entitle the appellant in obtaining the reliefs sought for. Furthermore, the said statements had been verified and purported to be based on the legal advise. It may be true that for improper verification of the material facts pleading in the election peti¬tion, the same cannot be dismissed at the threshold, but apart from the fact that the appellant herein did not move any applica¬tion for re-verification of the election petition, the averments contained in paragraph 4 (ii) does not satisfy the requirement of Section 81(1) of the Representation of the People Act, 1951 and in that view of the matter, the said plea is not available to the appellant.” But in the present case, relevant facts have been averred in paragraphs-3, 4 and 5 of the Election Petition disclosing materi¬al facts supported by documents which, if proved, would entitle the petitioner to the reliefs sought for. 13. I am, therefore, unable to accept the contention raised by the learned counsel for the respondent that the Election Petition lacks in material facts and does not disclose a cause of action. 14. With regards to the question of application of princi¬ples of constructive res judicata, I am of the view that since it is admitted by both the parties that both of them contested the previous election as reserved candidates and none of them were successful, the question of the present election petitioner chal¬lenging the status of the respondent did not arise. With regards to the question of application of princi¬ples of constructive res judicata, I am of the view that since it is admitted by both the parties that both of them contested the previous election as reserved candidates and none of them were successful, the question of the present election petitioner chal¬lenging the status of the respondent did not arise. The inevita¬ble conclusion, therefore, would be that the Election Petition filed at the instance of the present election petitioner cannot be said to be hit by the principles of constructive res judicata. Accordingly, I do not find it necessary to refer to the case of Satrucharla Vijaya Rama Raja (supra) cited by the learned counsel for the election petitioner since the question of applying the principles of res judicata to the present case does not arise at all as because, the principles of res judicata can only be made applicable to a case if issues involved in a case were raised in a previous lis between the same parties and have been decided and such a contingency does not arise in the present case. 15. In the result, I also find no merit in Misc. Case No.5 of 2006 which is accordingly dismissed. Ordered accordingly.