Orissa High Court · 2023
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Mar-2024 19:36:03 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.10942 of 2023 Tanaya Mishra …. Petitioner Mr.P.K.Rath, Sr.Advocate -versus- Ninima Patel and others …. Opp.Parties Mr.S.P.Panda, AGA Mr.M.Akram, Advocate for O.P.No.1 CORAM: JUSTICE B. P. ROUTRAY
Decision
ORDER 13.3.2024 Order No. 6. 1. 2. The matter is taken up through Hybrid mode. Heard Mr.Rath, learned Senior Counsel for the Petitioner and Mr.Akram, learned counsel for Opposite Party No.1 as well as Opposite Party No.1 in-person. 3. The present writ petition has been filed challenging order dated 17th March 2023 passed by the learned District Judge, Sundargarh in Election Petition No.2 of 2022. 4. Present Petitioner, who is the return candidate, filed an application under Order 7 Rule 11 CPC praying for rejection of the election petition on the ground of non-disclosure of material Page 1 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Mar-2024 19:36:03 facts with regard to allegations of corrupt practice. The learned District Judge has rejected the petition which is the subject matter of challenge before this Court. 5. Mr.Rath submits for the Petitioner that learned District Judge has not dealt with the issue at all in the impugned order with regard to non-disclosure of material facts, but has dismissed the petition by diverting the facts. 6. Opposite Party No.1, who argues in person along with her counsel, submits that present writ petition is not maintainable since the provisions of the CPC as well as the contemporary provisions contained in the Representation of the People Act would not be made applicable in the election petition which is filed under the Municipality Act. It is further submitted by Opposite Party No.1 that the allegations about non-disclosure of material facts in the election petition is not a fact at all and therefore the learned District Judge is justified in rejecting the petition of Opposite Party No.1. 7. The return candidate filed her petition under Order 7 Rule 11 on 3rd March 2023 with a prayer to reject the election petition for non-disclosure of material facts with regard to alleged corrupt practice. It is specifically stated in the petition, as seen from Annexure-5, that, “the Petitioner has not been able to make out his case of corrupt practices as pleaded in election petition and ingredients of corrupt practice were missing in election petition for want of details of corrupt practices giving time, place, names of persons, use of words and expression etc. and the averments made in the election petition were not supported by an Page 2 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Mar-2024 19:36:03 affidavit in prescribed form as per requirement of Section 83. The election petition would be liable to be rejected for an ex-facie non-compliance with the proviso to Sub-Section (1) of Section 83 of the Representation of the People Act, 1951 and non- compliance with mandatory requirement… ...”. It is also stated that “It is not averred as to which voter or Government employees were threatened and by whom such threat was given out. Similarly with regard to the allegation of booth capturing, it was not averred as to who were the persons allegedly capturing the booths and if at all true, at whose instance the booths were captured and further to who cash and gift items were distributed……”. 8. Hon’ble Supreme Court in Virender Nath Gautam have distinguished between ‘material facts’ and ‘particulars’ and held as follows: ‘material “34. A distinction between facts’ and ‘particulars’, however, must not be overlooked. ‘Material facts’ are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. ‘Particulars’, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. ‘Particulars’ thus ensure conduct of fair trial and would not take the opposite party by surprise. 35. All ‘material facts’ must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.” Page 3 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Mar-2024 19:36:03 9. Further, in Kanimozhi Karunanidhi vrs. A.Santhana Kumar and others. 2023 SCC OnLine SC 573, it is held:- “28. The legal position enunciated in afore-stated cases may be summed up as under:— i. ii. Section 83(1)(a) of RP Act, 1951 mandates that an Election petition shall contain a concise statement of material facts on which the petitioner relies. If material facts are not stated in an Election petition, the same is liable to be dismissed on that ground alone, as the case would be covered by Clause (a) of Rule 11 of Order 7 of the Code. The material facts must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action, that is every fact which it would be necessary for the plaintiff/petitioner to prove, if traversed in order to support his right to the judgment of court. Omission of a single material fact would lead to an incomplete cause of action and the statement of plaint would become bad. iii. Material facts mean the entire bundle of facts which would constitute a complete cause of action. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. iv. v. vi. In order to get an election declared as void under Section 100(1)(d)(iv) of the RP Act, the Election petitioner must aver that on account of non-compliance with the provisions of the Constitution or of the Act or any rules or orders made under the Act, the result of the election, in so far as it concerned the returned candidate, was materially affected. The Election petition is a serious matter and it cannot be treated lightly or in a fanciful manner nor is it given to a person who uses it as a handle for vexatious purpose. An Election petition can be summarily dismissed on the omission of a single material fact leading to an incomplete cause of action, or omission to contain a concise statement of material facts on which the petitioner relies for establishing a cause of action, in exercise of the powers under Clause (a) of Rule 11 of Order VII CPC read with the mandatory requirements enjoined by Section 83 of the RP Act.” 10. It is true that the Orissa Municipal Act, 1951 contains similar provisions as in the Representation of the People Act, Page 4 of 6 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Mar-2024 19:36:03 1951 in the matter of election petitions. Thus, what is contended by Opposite Party No.1 not to apply the principles of Sections 83 of the Representation of the People Act, are found without any basis. 11. As seen from the impugned order of learned District Judge, he has circumvented the facts to deal with in the impugned order regarding failure of requirement to file an affidavit or defective affidavit and consequences thereof. It is seen that the learned District Judge has failed to deal with the contention about lack of such material facts and non-disclosure of the same in the election petition, as contended by the return candidate in her petition under Order 7 Rule 11 CPC. The learned District Judge is completely silent on the plea of non-disclosure of material facts with regard to corrupt practices as alleged in the election petition and lack of specific pleadings to that effect. It is needless to reiterate here that it is the specific contention of the return candidate regarding non-disclosure of specific material facts regarding the allegations of booth capturing, corrupt practices etc. Thus, in the circumstances, it is felt apposite to direct learned District Judge for re-adjudication of the issue on the petition of the returned candidate filed under Order 7 Rule 11 CPC. 12. Accordingly, the impugned order dated 17th March 2023 under Annexure-1 is set aside and the matter is remitted back to the learned District Judge, Sundargarh to pass fresh orders on the petition of the return candidate dated 3rd March 2023 after granting opportunity of hearing to both parties concerned, as expeditiously as possible. Page 5 of 6 Signature Not Verified 13. Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack Date: 14-Mar-2024 19:36:03 petition is disposed of. With the aforesaid observation and direction, the writ ( B.P. Routray) Judge C.R.Biswal Page 6 of 6