NABA KUMAR MISHRA Vs. SACHIDANANDA DALAL

JUDGEMENT

(1.) In this petition, election of respondent No. 1 from 105 - Boudh Assembly Constituency to the Orissa Legislative Assembly is under challenge.

(2.) General election to the Orissa Legislative Assembly took place in the month of March, 1995. Polling for the constituency in question took place on 9-3-1995. The petitioner contested the election as Congress candidate with the symbol 'Hand'. Respondent No. 1 was a candidate of the Janata Dal with the symbol 'Chakra'. Respondents 2 to 9 filed their nominations as candidates from different political parties and/or as independent candidates. Counting of votes took place on 11-3-1995. The petitioner secured 41,932 valid votes in his favour whereas respondent No. 1 got 44,423 valid votes in his favour. As respondent No. 1 secured the highest number of votes, he was declared elected. Being felt aggrieved by such declaration, the petitioner has filed the present petition praying to :(i) order inspection, scrutiny and recount of all ballot papers polled; (ii) declare the election of respondent No. 1 void; and (iii) declare the petitioner to have been duly elected.The allegation of the petitioner in the election petition is that respondent No. 1 was the sitting member of the Assembly at the time of election and at that time his party was in power in the State and taking advantage of such position, he mobilised the officials in manhandling the ballot papers. According to the petitioner, there was erroneous counting of valid votes which resulted in reception/ rejection of valid votes cast in his favour which materially affected the result of the election. The petitioner claims that as a matter of fact he received majority of valid votes in his favour but because of careless and haphazard counting and manipulation by the counting-officers, respondent No. 2 was illegally declared to have obtained the highest number of valid votes in his favour.

(3.) Notice being issued, respondent No. 1 entered his appearance through his counsel and filed written statement denying the allegations made in the election petition. Respondents 2 to 5 and 7 to 9 despite valid service of notice on them have not appeared in the case. The name of respondent No. 6 was deleted on the basis of a memorandum filed on behalf of the petitioner. On perusal of the pleadings, this Court framed issues on 24-111995 and directed the contesting parties to file list of witneses and documents. The petitioner as well as respondent No. 1 filed their respective list of witnesses to be summoned and examined in the case. Counsel for the petitioner and respondent No. 1 submitted that none of them has any list of documents to be filed. On 5-4-1995 prayer was made on behalf of the parties for adjournment of the case on the ground that officers would be busy for the Lok Sabha election and it would not be possible to secure their attendance and this Court would also be closed for summer vacation from 18-5-1996 to 16-6-1996. Accordingly, the matter was adjourned to 18-6-1996 for fixing a date of hearing. On that day (18-61996), a memorandum was filed by the counsel for the petitioner saying that the petitioner does not want to pursue the matter. On the request of the counsel, the case was adjourned to 21-6-1996 for consideration of the said memo. On the adjourned date (21-61996) at the request of the learned counsel for the petitioner, the case was again adjourned to today (28-6-1996). Today, despite repeated calls, neither the petitioner appears nor any of his counsel. No step has also been taken on his behalf in the case. Shri Braja Mohan Patnaik, learned counsel for respondent No. 1, is present.