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2010 DIGILAW 62 (ORI)

SRIDHAR JENA v. SANTOSH KUMAR JENA

2010-02-02

R.N.BISWAL

body2010
JUDGMENT ( 1 ) IN this writ petition, the petitioner challenged the order dated 23-9-2009 passed by the Election Tribunal-cum-District judge, Khurda at Bhubaneswar in C. M. A. No. 12 of 2009, arising out of Election Petition No. 362 of 2008 rejecting the petition filed under Order VII, Rule-11 of C. P. C. by the petitioner. ( 2 ) OPPOSITE party No. 1, a defeated candidate in the last election of Corporators in bhubaneswar Municipal Corporation in respect of Ward No. 40 filed the aforesaid election petition seeking a declaration that the election of the petitioner as Corporator of that ward was illegal and void. At the same time, he prayed to declare him as the elected Corporator for the said Ward No. 40 of the bhubaneswar Municipal Corporation. In that election, the petitioner had secured 2575 votes, whereas opposite party No. 1 secured 2232 votes. After receiving notice in the election petition, petitioner appeared before the election Tribunal-cum-District Judge, khurda at Bhubaneswar and filed an application under Order VII, Rule 11 read with section 151 of C. P. C. giving rise to C. M. A. No. 12 of 2009 for rejection of the election petition on the ground that the election petition was not maintainable since it did not disclose the provision of law under which it was filed, that the allegation of corrupt practice made against the present petitioner in the election petition was not clear and specific and that the election petition was not signed and verified in the mariner as required by law. It is the further case of the petitioner that nondisclosure of criminal antecedent by the present petitioner in the format of affidavit enclosed to the nomination paper as alleged by the election petitioner in the election petition is not a ground for filing election petition alleging corrupt practice. As per the writ petition, without considering the grounds taken in the petition under Order VII, Rule 11 read with Section 151 of C. P. C, properly the learned Election Tribunal-cum-District Judge, Khurda at Bhubaneswar rejected the petition. Hence, the writ petition. As per the writ petition, without considering the grounds taken in the petition under Order VII, Rule 11 read with Section 151 of C. P. C, properly the learned Election Tribunal-cum-District Judge, Khurda at Bhubaneswar rejected the petition. Hence, the writ petition. ( 3 ) LEARNED counsel appearing for the petitioner submitted that opposite party No. 1 filed the election petition alleging that in the affidavit filed by the petitioner at the time of filing his nomination papers for the election did not disclose the fact of pendency of a criminal case i. e. , G. R. Case No. 1096/97 for the offence under Sections 341/323/379/ 506/34 of I. P. C. before the Court of learned s. D. J. M. , Bhadrak, and, as such, the petitioner indulged himself in corrupt practice, which is a ground for declaring the election void. Mainly on that ground, opposite party no. 1 prayed to declare the election of the petitioner as null and void and to declare him as elected. Learned counsel for the petitioner further submitted that even if the entire allegation made in the election petition was accepted as true, still then, it would not make out a case of corrupt practice. Hence, the election Tribunal-cum-District Judge, khurda at Bhubaneswar ought to have allowed the petition under Order-VII, Rule-11 read with Section 151 of C. P. C. ( 4 ) LEARNED counsel for opposite party No. 1 contended that G. R. Case No. 1096 of 1997 for the offence under Sections 341/323/379/ 506/34 of I. P. C. was pending against the petitioner, while he filed an affidavit at the time of filing his nomination papers, but he suppressed this fact in the affidavit. So, this act of opposite party No. 1 would fall under clause-C of Section 87 of the Act. So, this act of opposite party No. 1 would fall under clause-C of Section 87 of the Act. The said section reads as follows : the following shall be deemed to be corrupt practice for the purpose of this Act: " (a) and (b) xxx xxx xxx xxx (c) the publication by a candidate or his agent or by any other person of any statement of fact which is false and which he either believes to be, false or does not believe to be true, in relation to the personal character or conduct of any candidate or in relation to candidature or withdrawal for contest of any candidate being a statement reasonably calculated to prejudice the prospects of that candidate's election (Emphasis supplied ). This, inter alia, relates to publication by a candidate or his agent of any statement of fact which is false in relation to the personal character or conduct of any candidate calculated to prejudice the prospect of that candidate. This does not apply to publication or suppression of fact by a candidate in his favour. So, even if the petitioner did not disclose about the pendency of a criminal case against him in the affidavit filed along with nomination papers, it would not come under corrupt practice. ( 5 ) LEARNED counsel for opp. party No. 1 further submitted that as per clause 1 of the order dated 1st January, 2004 issued by the state Election Commission, Orissa, every candidate seeking election to the Office of corporator of Municipal Corporation in the state shall furnish information relating to his criminal antecedent, assets and liabilities and educational qualifications in the form of affidavit in the format prescribed by the Commission to the concerned Election Officer/returning Officer at the time of filing of nomination papers. Clause 3 of the said order further envisages that non-furnishing of affidavit by the candidate shall be considered to be a violation of the Order and the nomination paper of the candidate concerned shall be liable to rejection at the time of scrutiny by the Election Officer/returning Officer. So, according to the learned Senior counsel Mr. Bijan Ray, since the petitioner did not disclose about pendency of criminal case against him in the affidavit, it amounts to corrupt practice within the meaning of section 87 (g) of the Act, which reads as follows : 87. So, according to the learned Senior counsel Mr. Bijan Ray, since the petitioner did not disclose about pendency of criminal case against him in the affidavit, it amounts to corrupt practice within the meaning of section 87 (g) of the Act, which reads as follows : 87. Corrupt practices : The following shall be deemed to be corrupt practices for the purpose of this Act-" (a) to (f) xxx xxx xxx xxx (g) any other practice which the Government may, by rules, specify to be a corrupt practice. " ( 6 ) PER contra, learned Senior Counsel, Mr. S. K. Mishra appearing for the petitioner submitted that as per clause 6 of the said order, the Election Officer/returning Officer shall neither undertake verification of the correctness or otherwise of the information furnished in the above mentioned affidavit, nor reject the nomination paper on the ground of furnishing wrong information or suppressing material information in the affidavit. So, non-furnishing of criminal antecedent in the affidavit would not amount to corrupt practice. ( 7 ) ADMITTEDLY, the petitioner has furnished affidavit as required under law, but according to opposite party No. 1, he has suppressed about the pendency of criminal case against him. As per Clause 6 of the order suppressing of this fact cannot be a ground for rejecting the nomination paper. The petitioner may be criminally liable for that. But, it would not amount to corrupt practice. His election cannot also be declared void on that ground. The decisions cited on behalf of opp. party no. 1 would not be applicable to the present case. ( 8 ) LEARNED counsel for the petitioner further submitted that Section 89 of the Orissa municipal Corporation Act, 2003 lays down the grounds for which an election can be void. The averments made in the election petition filed by opposite party No. 1 read as a whole does not disclose any ground for declaring the election of the petitioner to be void. So, the election petition deserves to be rejected. It would be useful to quote Section 89 of the Orissa Municipal Corporation Act, 2003, which reads as follows : 89. So, the election petition deserves to be rejected. It would be useful to quote Section 89 of the Orissa Municipal Corporation Act, 2003, which reads as follows : 89. "grounds for declaring elections to be void : (1) Subject to the provision of subsection (2), if the District Judge is of the opinion (a) that on the date of the election, a returned candidate was not qualified or was disqualified to be chosen as a Corporator under the provisions of this Act; or (b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent; or (c) that any nomination paper has been improperly rejected; or (d) that the result of the election insofar as it concerns a returned candidate has been materially affected (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interest of the returned candidate by a person other than that candidate or his agent, or a person acting with the consent of such candidate or his agent, or (iii) by the improper acceptance, refusal of any vote or rejection of any vote which is void, or (iv) by the non-compliance with the provisions of this Act or any rules of orders made thereunder, he shall declare the election of the returned candidate void. (2) If the District Judge is satisfied (a) that no such corrupt practice was committed at the election by the candidate, and every such corrupt practice was committed contrary to the orders and without the consent of the candidate; (b) that the candidate took all measurable means for preventing the commission of corrupt practice at the election; and (c) that in all other respect, the election was free from any corrupt practice on the part of the candidate or any of his agents; he may decide that the election of the returned candidates is not void. " As held earlier, suppression of pendency of criminal case would not amount to corrupt practice. There is no ground in the election petition to declare the election of the petitioner as void. ( 9 ) AT last, Mr. Bijan Ray, learned counsel appearing for opp. " As held earlier, suppression of pendency of criminal case would not amount to corrupt practice. There is no ground in the election petition to declare the election of the petitioner as void. ( 9 ) AT last, Mr. Bijan Ray, learned counsel appearing for opp. party No. 1 contended that the petitioner ought to have filed a revision instead of a writ petition against the impugned order passed under Order 7, Rule 11 of C. P. C. Since he has not filed a revision, the writ petition could not stand. The writ petition was filed on 16-10-2009. In the meantime, more than three months have already elapsed. As discussed earlier, there is no ground to entertain the election petition. So, only because instead of filing a revision, a writ petition has been filed, I am not inclined to reject the writ petition on that ground alone. ( 10 ) UNDER all these grounds the writ petition is allowed, the impugned order passed by the learned Election Tribunal-cum-District Judge, Khurda at Bhubaneswar is set aside and consequentially the Election Petition No. 362 of 2008 stands rejected. No cost. Petition allowed. --- *** --- .