MAYADHAR NAYAK Vs. SUB-DIVISIONAL OFFICERJAJPUR

JUDGEMENT

(1.) This petition has been filed by Shri Mayadhar Nayak. the unsuccessful candidate who contested the election to the Orissa Legislative Assembly from 23-Sukinda Assembly constituency in Cuttack District. The election was held on 31-5-1980. The petitioner stood as a candidate of S. U. C. I. party and secured 15,718 votes while the third respondent Sarat Rout, who stood on Congress (1) ticket, was declared elected securing 22,640 votes. The other candidates, namely, Prafulla Chandra Gharei (respondent No. 2), Sarat Chandra Patra (respondent No. 4), Sarangdhar Muduli (respondent No. 5). Haladhar Dhir (respondent No. 6) and Hrushikesh Rout (respondent No. 7) secured 8385, 3603, 630, 434 and 1957 votes respectively. The total number of valid votes polled was 53,367.

(2.) According to the petitioner, the nominations to fill up the seal from 23Sukinda Assembly constituency were invited by the Returning Officer, Jajpur, on the basis of notification (Ext. 4) issued by the Government of Orissa calling upon the electors to elect a member. The nomination papers were to be filed between 25-4-1980 and 2-5-1980 and the date for scrutiny by the Returning Officer was on 3-5-1980. The last date for withdrawal of nomination papers was 5-5-1980. Eight candidates i.e., the petitioner and respondents Nos. 2 to 8, filed nomination papers. On the date of scrutiny, i.e., 3-5-1980, respondent No. 8 Sanatan Deo (who died during the pendency of this election petition) filed objection before the Returning Officer against the candidature of Sarat Rout (respondent No. 3) on the ground that he did not satisfy the constitutional requirements of Article 173 (b) of the Constitution as he was less than twenty- five years of age and the Returning Officer was under obligation under Section 36 (2) of the Representation of the People Act, 1951 (hereinafter refered to as the 'Act') to reject his nomination. This was because, as is evident from the particulars of Matriculates provided by the Board of Secondary Education, Orissa, Sarat Kumar Rout son of Purna Chandra Rout was born on 25-4-1957 and on the date of scrutiny he was less than twenty-five years of age. Sarat Kumar Rout passed the Annual H. S. C. Examination in 1971 and he had filled up the form for appearing in the said examination in his own hand. He had the H. S. C. Examination certificate in his possession and with the full knowledge of his date of birth, misled the Returning Officer by offering his candidature and giving a false information. He has also appeared at Intermediate and Degree Examinations of Utkal University as a student of Angul College and must have filled up his date of birth in those forms. He has even got a wrong age recorded in the electoral roll. According to the petitioner, Sanatan Deo was called upon by the Returning Officer by his letter No. 457 dated 3-5-1980 to adduce evidence on 5-5-1980 at 11.00 a. m. in support of his contention that Sarat Kumar Rout was below twenty-five years of age. He did not call upon respondent No. 3 to adduce evidence in his support. Sri Deo's contention was, however, rejected by the Returning Officer and the nomination of Sarat Rout, whose name as per documents is Sarat Kumar Rout, was accepted as valid. Sanatan Deo withdrew his nomination on 5-5-1980 and did not contest the election. According to the petitioner Sarat Rout was not a valid candidate in the eyes of law and the Constitution and the votes polled in his favour should be presumed to be those cast in favour of a nonexistent candidate. Hence those votes should be treated as not polled at all. The petitioner received the highest number of votes from among the valid candidates; but for the votes obtained by the returned candidate by corrupt practices by way of misrepresentation of his age in the nomination, he would have been declared elected to represent the constituency. The election has been materially affected by the candidature of Sarat Rout (respondent No. 3), who in the eyes of law and the Constitution is not a candidate. With these averments it has been prayed that the candidature and subsequent election of Sarat Rout as M. L. A. from 23-Sukinda Assembly constituency be set aside and the petitioner be declared as the validly elected candidate from the said constituency.

(3.) In this case only Sarat Rout (respondent No. 3) filed written statement. The Returning Officer (respondent No. 1), though did not file any written statement, appeared through his lawyer, The other respondents, namely, respondents Nos. 2, 4, 5, 6 and 7 were set ex parte. Sanatan Deo (respondent No. 8) died during the pendency of this Election Petition and his name has been deleted. In his written statement respondent No. 3 has stated that the election petition is not maintainable due to non-compliance of Sections 81, 82 and 117 of the Act and is also liable to be dismissed under Section 86 (1) of the Act. Also Rule 4 (iii) of the Rules framed by this Court under the Act has not been complied with and as such the petition is not maintainable. The election petition has not been properly presented and the cost has not been deposited in accordance with the rules of this Court According to respondent No. 3 it is not true to say that he did not satisfy the constitutional requirement of Article 173 (b) and it is false to say that he was less than twenty-rive years of age on the date of filing the nomination papers. It is equally false to say that on the date of scrutiny he was in possession of the H. S. C. Examination certificate and with the full knowledge of his date of birth, misled the Returning Officer by offering his candidature. It is nothing but white lie to say that he has got a wrong age recorded in the electoral roll. On the date of scrutiny, i.e., 3-5-1980, late Sanatan Deo filed an application before the Returning Officer alleging inter alia that he was the only official party nominee of the Congress (I) party and as this respondent was under age, his official symbol had to be as-ligned to him (Sanatan Deo). Mr. Deo was called upon to substantiate his claim on 5-5-1980. It is stated that conceding for the sake of argument and admitting that in the H. S. C. Examination certificate of respondent No. 3 and in some other documents his date of birth has been recorded as 25-4-1957, the same is wholly erroneous and incorrect as the correct date of birth of this respondent is 30-1-1951. (It may be mentioned here that this sentence was added by way of amendment which was allowed by Order No. 35 dated 2-11-1981). This respondent filed his reply challenging the petition of Sanatan Deo and successfully established his case that he was above twenty-five years of age on the date of filing his nomination and as such the requirement of Article 173 (b) of the Constitution was fulfilled. According to this respondent his candidature was valid and was in no way hit by any provisions of law and he having been successfully won the election is the genuine candidate to represent and has been rightly declared to be elected as a valid candidate securing the largest number of valid votes. He submitted that the election petition is devoid of any merit and as such is liable to be dismissed with costs.