SRIDHAR JENA Vs. SANTOSH KUMAR JENA

JUDGEMENT

(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 manner as required by law. It is the further case of the petitioner that non-disclosure 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.

(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 at Bhubaneswar ought to have allowed the petitioner under Order-VII, Rule-11 read with Section 151 of C.P.C.