RABINARAYAN HATI Vs. NITYANANDA PATRA

JUDGEMENT

(1.) THE election for Panchayat Samiti Member of Rangani Grama Panchayat of Rajnagar Panchayat Samiti was held on 19.2.2002 in which the petitioner and opposite parties 1 and 2 contested. Opposite party No. 1 filed an election petition numbered as Election Misc. Case No. 1 of 2002 in the Court of the learned Civil Judge (Senior Division ) cum Election Commissioner, Kendrapara stating, inter alia, that opposite party No. 1 was declared elected initially by a public announcement, but thereafter the petitioner was declared elected after a show of re counting by the Election Officer. The petitioner filed his show cause in the said Election Misc. Case No. 1 of 2002 before the learned Civil Judge (Senior Division ) cum Election Commissioner, kendrapara on 15.7.2002. The petitioner also filed petitions on 15.7.2002 and 30.9.2002 challenging the maintainability of the election petition on the ground that the allegations are vague and imaginary and the election petition does not disclose a cause of action and further the election petition is not signed and verified as required under Section 44 D of the Orissa Panchayat Samiti Act, 1959. By order dated 29.1.2003, the learned Civil Judge (Senior Division) cum Election Commissioner has rejected the said petitions dated 15.7.2002 and 30.9.2002 of the petitioner and has posted the election petition for hearing. Aggrieved by the said order dated 29.1.2003, the petitioner has filed this writ petition with the prayer to quash the said order passed in Election Misc. Case No. 1 of 2002.

(2.) MR . Sanjit Mohanty, learned counsel for the petitioner, submitted that it is well settled that an election petition can be dismissed by the Court if it does not comply with the requirements of law relating to presentation or filing of an election petition and the learned Civil Judge (Senior Division ) cum Election Commissioner has lost sight of this position of law and has rejected the petitions filed by the petitioner on 15.7.2002 and 30.9.2002 challenging the maintainability of the election petition. He submitted that although the Orissa Panchayat Samiti Act, 1959 makes no express provisionfor dismissal of an election petition at the threshold, Section 44 D of the said act provides that an election petition must contain a concise statement of the material facts on which the petitioner relies and 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. He further submitted that 'Section 44 F of the said Act provides that every election petition shall be tried by the Election Commissioner as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. According to Mr. Mohanty, therefore, if the election petition does not contain material facts or does not disclose a cause of action, the same may be dismissed by the Court under Order 6, Rule 16 and Order 7, Rule 11 of the CPC. Mr. Mohanty argued that since in the present case, the election petition did not disclose the material facts or a cause of action, the learned Civil Judge cum Election Commissioner should have held that the election petition was not maintainable. In support of the aforesaid submission, Mr. Mohanty cited the decision of the Supreme Court in V. Narayanaswamy v. C. P. Thirunavukkarasu, AIR 2000 SC 694.

(3.) SECTION 44 D of the Orissa Panchayat Samiti Act, 1959 is similar to Section 83 of the Representation of the People Act, 1951 and is quoted herein below :