The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR ELPET No.13 of 2024 Babita Mallick …. Election Petitioner Mr. B. Bhuyan, Advocate -Versus- Pramila Mallick Respondent Mr. B. Mishra, Senior Advocate along with Mr. T.K. Biswal, Advocate …. CORAM: JUSTICE R.K. PATTANAIK DATE OF ORDER:28.02.2025 I.A.Nos. 13 &77 of 2024 1. To begin with, the election petition is at the behest of the petitioner with the following reliefs, such as: improperly and A. To declare that the nomination of the respondent, namely, Pramila Mallik having been illegally accepted, hence, the entire process of election in so far as it relates to 48-Binjharpur (SC) Assembly Constituency is materially affected and as such be void and to set aside the same. B. To declare that the respondent that he has not submitted her nomination papers in the prescribed form 2B and filed false affidavit in Form 26 along with the nomination papers so also involved in corrupt practices by way the of booth rigging and has violated Page 1 of 15 Election Rules and the Act and as such, the election is void and to direct a fresh election in respect of the Constituency. C. To call for all relevant election records and documents relating to nomination of the respondent along with affidavit in Form 26 besides the ballot box containing ballots, marked copy of electoral roll of all the booths, result and counting sheets etc. for the purpose of re-counting from all the booths which is in the custody of the Chief Electoral Officer of 48-Binjharpur (SC) Assembly such other Constituency, documents as would be necessary at the time of trial. Jajpur and I.A. Nos.13 of 2024: 2. However, the respondent challenged the election petition with the above IA filed seeking dismissal of the same in terms of Order VII Rule 11(d) CPC read with Section 86 of the Representation of the People Act, 1951 (hereinafter referred to as „the Act‟) on various grounds. 3. The contention of the respondent is that the election petition was to be presented as per Section 81 of the Act within 45 days but not earlier than the date of election of the returned candidate but there has been delay, which is not condonable. The further contention is that the election petition shall have to be signed by the election petitioner and verified in manner as laid down in CPC for the verification of pleadings and in case, any corrupt practice is alleged, it shall also be accompanied with an affidavit in the prescribed form Page 2 of 15 in support of the allegations and particulars thereof in view of Section 83 of the Act and if there is no such compliance of Sections 81, or 82 or 117, such petition is to be dismissed under Section 86 thereof. Referring to such other provisions of the Act besides Rule 94-A of the Conduct of Elections Rules, 1961, besides the above, it is pleaded that the election petition is liable to be dismissed due to non-compliances. Reference has also been made to the relevant provisions of
Legal Reasoning
the Rules of the High Court Orissa, 1948. 4. On the contrary, the election petitioner filed objection to the IA and opposed rejection of the election petition in terms of Order VII Rule 11 CPC with a pleading that the same is not maintainable. It is pleaded that the Stamp Reporter pointed out a defect of delay of three days only without any other defects mentioned vis-à-vis verification etc. The pleading is that as the fundamental principles of free and fair election is challenged and put to strict scrutiny, otherwise also, for any such minor discrepancies and non-compliances, the election petition is not to be rejected, or dismissed, especially, on technical grounds, which would lead to miscarriage of justice. I.A. Nos.77 of 2024: 5. Instant IA is pressed into service by the petitioner to accept the election petition ignoring delay of three days shown by the Stamp Reporter on the grounds stated therein with the explanation offered. On the other hand, the respondent would Page 3 of 15 plead that the delay cannot be condoned as law does not permit the same.
Legal Reasoning
6. Heard Mr. Mishra, learned Senior Advocate assisted by Mr. Biswal, learned counsel for the respondent and Mr. Bhuyan, learned counsel for petitioner. 7. Reiterating the facts pleaded on record and the procedure to be followed with the compliance of provisions of the Act and Rules framed thereunder, Mr. Mishra, learned Senior Advocate for the respondent cited the following decisions, such as, Jyoti Basu and others Vrs. Debi Ghosal and others (1982) 1 SCC 691; Shri Chandrakant Shukla Vrs. Maharaja Martand Singh (1973) 3 SCC 194; Hukumdev Narain Yadav Vrs. Lalit Narain Mishra (1974) 2 SCC 133; Lachhman Das Arora Vrs. Ganeshi Lal and others