GYANENDRA KUMAR TRIPATHY Vs. BHAGIRATHI BADAJENA

JUDGEMENT

(1.) The election petition has been filed by one Gyanendra Kumar Tripathy seeking to challenge the election of Respondent No.1-Bhagirathi Badajena (petitioner herein) as the returnedcandidate of the election from 113, Bhubaneswar (North) Assembly Constituency, inter alia, on the ground of improper and illegal acceptance of nomination of Respondent Nos.1, 4, 5 and 9 and also on the ground of improper and illegal rejection of the nomination paper of the election petitioner-Gyanendra Kumar Tripathy. After notices were issued to the respondents, the returned candidate, namely, Bhagirathi Badajena (Respondent No.1 in the election petition) filed the aforementioned Misc. Case under Sections 86 and 87 of the Representation of People Act, 1951 read with Order 7 Rule- 11 and Order No.6 of Rule-16 of the Code of Civil Procedure, 1908 with a prayer to dismiss the election petition under the aforesaid provisions.

(2.) Sri P.Acharya, learned Senior Advocate appearing for the returned candidate, namely, Bhagirathi Badajena (petitioner in this Misc. Case) submitted that the election petitioner, namely, Gyanendra Kumar Tripathy did not comply with the mandatory requirement of section 81 of the Representation of People 1951 Act (hereinafter referred to as the "1951 Act"). It is submitted that SubSection (3) of Section 81 of the 1951 Act is mandatory in nature and the said provision clearly requires that, every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and more importantly, such copy was required to be attested by the election petitioner under his own signature to be a true copy of the petition.

(3.) In the light of the aforesaid submissions, it is averred that this defect in the election petition is fatal and not curable and on this ground alone, the election petition should be dismissed at the threshold for non-compliance of Section 86(3) of the 1951 Act. It is further submitted by the learned counsel appearing for the return candidate-Bhagirathi Badajena, that Section 83(1)(b) of the 1951 Act provides that an Election Petition has to contain "full particulars of any corrupt practice" and the date and place of the commission of each such practice. It is further submitted that Section 83(1)(c) further provides that, the election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleadings. Proviso to Sub-Section 1(c) of Section 83 further requires that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice along with the detailed particulars thereof.