Orissa High Court
Debashish Samantaray .... Election vs Mohammed Moquim on 14 October, 2022
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
ELPET No.6 of 2019
Debashish Samantaray .... Election
Petitioner
Mr. Milan Kanungo,
Senior Advocate
-versus-
Mohammed Moquim .... Respondent
Mr. Bidyadhar Mishra,
Senior Advocate
CORAM:
JUSTICE S.K. SAHOO
ORDER
Order No. 14.10.2022
59. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).
Perused the office note.
It is mentioned that in order No.55, the year of the I.A. number has been inadvertently mentioned as '2022' instead of '2020'. Similarly, in the 2nd paragraph of the said order, the date has been mentioned as '28.02.2022' instead of '28.02.2020'. Thus, the letters '2' appearing in both the places are scored out by me in red ink in open Court and corrected as '0'. Similarly, in order no. 57 in paragraph 4, the date has been mentioned as // 2 // '28.02.2022' instead of '28.02.2020' and the year of I.A. number has been inadvertently mentioned as '2022' instead of '2020'. Accordingly, the letters '2' appearing in both the places of the said paragraph is scored out by me in open Court in red ink and corrected as '0'. Registry is directed to carry out necessary correction in the High Court Website.
In pursuance of the order dated 23.09.2022, learned counsel for both the parties have exchanged the draft issues between them and they have also filed the same before this Court today, which are taken on record.
Heard Mr. Milan Kanungo, learned Senior Advocate appearing for the election petitioner and Mr. Bidyadhar Mishra, learned Senior Advocate appearing for the respondent on the question of settlement of issues.
After going through the election petition and the written statement, the following issues are settled:-
ISSUES
1. Whether the Election Petition as laid down is maintainable in law or not?
2. Whether the Election Petitioner has cause of action to file the Election Petition or not?
3. Whether the Election Petition is liable to be dismissed under section 86(1) of the R.P. Act, 1951 for non-compliance of section Page 2 of 13 // 3 // 81(3) of the R.P. Act, 1951 or not?
4. Whether striking/deletion of PART-II of his Nomination in Form-2B by the sole Respondent in pursuance to the instruction given in the prescribed Nomination Form-
2B renders the nomination of the sole Respondent liable for rejection of his nomination or not?
5. Whether the sole Respondent has furnished all the required information as required in PART-III of Nomination Form-2B or not?
6. Whether the sole Respondent has furnished all the required information as required in PART-IIIA of Nomination Form-2B or not?
7. Whether the alleged defects as pointed out by the Election Petitioner regarding deletion of PART-II of Nomination Form-2B as well as with respect to PART-III and PART-IIIA of Nomination Form-2B do not constitute any substantial defect and as such the nomination filed by the sole Respondent is rightly accepted by the Retunring Officer as prescribed under section 36(4) of the R.P. Act, 1951 or not?
8. Whether the Respondent filed his nomination papers in violation of section 33 of the R.P. Act, 1951?
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9. Whether the Respondent has filed his nomination papers before the Returning Officer is in the prescribed Form-2B?
10. Whether PART-III of Form-2B of the nomination papers filed by the Respondent is in the prescribed Form?
11. Whether the Respondent has filled up PART-
IIIA of the nomination papers filed by him before the Returning Officer of 90-Barabati Cuttack Assembly Constituency and as to whether Column no.3 to 9 of PART-IIIA are in the prescribed Form-2B?
12. Whether the nomination papers of the Respondent was liable to be rejected by the Returning Officer as the same was not in the prescribed Form-2B and as to whether the Returning Officer illegally and improperly accepted the nomination papers filed by the Respondent in violation of section 33 of the R.P. Act, 1951 read with Rule 4 of the Conduct of Election Rules, 1961?
13. Whether the Regurning Officer should have rejected the nomination of Respondent in exercise of power under section 36 of the R.P. Act, 1951 at the time of scrutiny of the nomination papers?
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14. Whether on account of the alleged defects as pointed out by the Election Petitioner under paragraph 7(A) of the Election Petition, the result of the election in so far as it concerns the returned candidate/ sole Respondent has been materially affected or not?
15. Whether the sole Respondent has filed his Affidavit in Form-26 dated 03.04.2019 along with his Nomination Papers on 02.04.2019 or has filed the said Affidavit on 04.04.2019?
16. Whether the Returning Officer has received the Affidavit in Form-26 dated 03.04.2019 from the sole Respondent on 04.04.2019 and has issued a "Checklist" dated 04.04.2019 to the sole Respondent for the same or not?
17. Whether the sole Respondent has disclosed all the criminal cases pending against him in his Affidavit in Form-26 dated 03.04.2019 as per the prescribed format and instructions of Form-26 or not?
18. Whether the Respondent has filed the affidavit in the prescribed Form-26 as required under section 33A of the R.P. Act, 1951 read with Rule 4A of the Conduct of Page 5 of 13 // 6 // Election Rules, 1961?
19. Whether the Affidavit dated 03.04.2019 in Form-26 filed along with the nomination papers on 02.04.2019 is valid and legal in the eyes of law?
20. Whether the Returning Officer should have rejected the nomination papers filed on 02.04.2019 along with the affidavit dated 03.04.2019 being non-est in the eyes of law but the same was illegally and improperly accepted by the Returning Officer of 90-Barabati Cuttack Assembly Constituency?
21. Whether the Respondent has made proper and full declaration about the criminal cases pending against him in the affidavit filed in Form-26?
22. Whether the Respondent has disclosed the name and other details of the Joint Account Holder of the Bank account no.1377010031593 in the Federal Bank Ltd. and about the A/c. no.10861745745 in S.B.I. Main Branch, Cuttack in the affidavit filed in Form-26?
23. Whether the sole Respondent is required under law to disclose the name of the joint account holder of the bank accounts Page 6 of 13 // 7 // standing in his name in his Affidavit in Form-26 or not?
24. Whether the bank accounts as mentioned under paragraph-7(D) of the Election Petition stand in the name of the sole Respondent and his wife Firdousia Bano with operational instruction "Either or Survivor" or not?
25. Whether the Respondent has declared the book value of the shares as per the books of the company held by him in the affidavit filed in Form-26?
26. Whether the Respondent has furnished the details in the affidavit filed in Form-26 about the investment made in his name and his spouse's name in the insurance policies?
27. Whether the Respondent is required to give details in respect of each investment made by him and as to whether he has disclosed about the loans given to the companies in the affidavit filed in Form-26?
28. Whether the Respondent has disclosed true and correct details of the properties held by him, his spouse and dependents in the affidavit filed in Form-26?
29. Whether mentioning the name of Mouza as Page 7 of 13 // 8 // "Patpur" instead of "Patapur" in Cuttack distgrict creates any confusion or not?
30. Whether the sole Respondent has correctly disclosed all the movable and immovable assets of self and his spouse in his Affidavit in Form-26 dated 03.04.2019 or not?
31. Whether the Respondent has disclosed about the loans taken by his company from Orissa Rural Housing Development Corporation (OHRDC)?
32. Whether the Respondent has declared the purchase price and development/ construction cost of Immovable properties of his spouse in the affidavit filed in Form- 26?
33. Whether the result of the election has been materially affected insofar as it concerns the returned candidate/ sole Respondent on account of the allegations made in the Election Petition or not?
34. Whether the Returning Officer has rightly and lawfully accepted the nomination of the sole Respondent or not?
35. Whether the sole Respondent has been declared duly elected as MLA from 90- Barabati Cuttack Assembly Constituency by securing lawful valid votes or not?
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36. Whether the election of the Respondent from the 90-Barabati Cuttack Assembly Constituency is to be declared as void?
37. To what relief the Election Petitioner is entitled to?
38. Whether the Election Petitioner has made out a case and is entitled for any reliefs as sought for in his Election Petition or not? Learned counsel for the Respondent has filed a list of witnesses, which is taken on record.
Learned counsel for the Respondent has filed the list of documents along with the documents, which are also taken on record. The same be kept in a sealed cover.
At this stage, learned counsel for the Election Petitioner submitted that he has already filed the list of documents along with some documents and list of witnesses on 29.06.2022.
Today, learned counsel for the Election Petitioner has filed some documents, which are taken on record and the same be kept in a sealed cover.
Learned counsel for both the parties shall appear before the learned Registrar (Judicial) of this Court on 28.10.2022 at 11.00 a.m. and the learned Registrar (Judicial) shall open the sealed cover in respect of the list of documents and allow both the parties to peruse the documents filed today as well as Page 9 of 13 // 10 // earlier and admit the documents, if any, and the list of admitted documents shall be furnished to this Court by the next date by the learned Registrar (Judicial).
List this matter on 04.11.2022 and the matter will be taken up at 2.00 p.m. ( S.K. Sahoo) Judge I.A. No.27 of 2022
60. This is an application filed by the Respondent to call for the documents from the custody of the District Election Officer -cum- Collector, Cuttack.
Mr. Bidyadhar Mishra, learned Senior Advocate appearing for the Respondent submitted that the documents mentioned in the schedule are necessary for effective adjudication of the case.
Mr. Milan Kanungo, learned Senior Advocate appearing for the Election Petitioner submitted that some of the documents have already been called for.
Considering the submissions made by the learned counsel for the respective parties, it is directed that the District Election Officer -cum- Collector, Cuttack shall produce the documents mentioned in the schedule and if any such documents have already been called for, the same shall be mentioned specifically while submitting the rest of the Page 10 of 13 // 11 // documents. So far as sl. no.7 of the schedule is concerned, the criminal antecedents with respect to the Election Petitioner as well as the Respondent are only be furnished. The District Election Officer -cum- Collector, Cuttack shall produce the documents by 22.10.2022 before the learned Registrar (Judicial) which are also to be allowed for perusal and admission by the learned counsel for both the parties on 28.10.2022 as per the previous order.
A free copy of the order along with copy of the I.A. be handed over to Mr. Arupananda Das, learned Additional Government Advocate for the State, which will be forwarded to the District Election Officer -cum- Collector, Cuttack for information.
Accordingly, the I.A. is disposed of.
( S.K. Sahoo) Judge I.A. No.26 of 2022
61. This is an application filed by the Respondent to call for the document from the custody of the Chief Electoral Officer, Odisha as mentioned in the schedule.
Mr. Milan Kanungo, learned Senior Advocate appearing for the Election Petitioner objected to such prayer on the ground that there is no dispute between the publication of such notification and it is not at all Page 11 of 13 // 12 // necessary.
Considering the submissions made by the learned counsel for the respective parties, the prayer is allowed.
The Chief Electoral Officer, Odisha shall cause production of the document mentioned in the schedule in a sealed cover on the next date which is fixed to 04.11.2022.
Learned Registrar (Judicial) shall communicate the order to the concerned authority for compliance.
Accordingly, the I.A. is disposed of.
( S.K. Sahoo) Judge I.A. No.25 of 2022
62. This is an application filed by the Respondent for dismissal of the Election Petition under section 86 (1) of the R.P. Act for non-compliance of section 81(3) of R.P. Act read with Rule 6 of Chapter XXXIII of the Rules of this Court relating to regulate the proceeding under section 80A of the R.P. Act.
Mr. Milan Kanungo, learned Senior Advocate appearing for the Election Petitioner seeks time to file objection to this interim application.
Time is granted till the next date. Since today the issues have been framed in Page 12 of 13 // 13 // respect of the prayer made in this interim application, the same shall be considered during the course of the trial of the Election Petition.
( S.K. Sahoo) Judge I.A. No.23 of 2022
63. The interim order dated 23.09.2022 is extended until further orders.
Mr. Bidyadhar Mishra, learned Senior Advocate appearing for the Respondent seeks some further time to file objection to this application.
The prayer is allowed.
The objection, if any, shall be filed by the next date.
A copy of the order passed in this interim application shall be forwarded by the learned Registrar (Judicial) immediately to the Election Commission of India for compliance.
Issue urgent certified copy as per Rules.
( S.K. Sahoo) Judge RKM Page 13 of 13