RAGHUNATH MISRA Vs. KISHORE CHANDRA DEO BHANJ

JUDGEMENT

(1.) THE appellant Raghunath Misra of Banpur files this appeal against the judgment of the Election Tribunal (Shri T. V. Rao, District. Judge, Puri) dismissing his application under Section 81 of the Representation of the People Act, 1951 (hereinafter called the Act) for declaring void the election to the Orissa Legislative assembly of Raja Bahadur Kishore Chandra Deo Bhanj o Daspalla, respondent no. 1, from the Daspalla double-member constituency in which a seat is reserved for the scheduled caste candidate.

(2.) THE general seat was contested by respondent No. 1 Raja Bahadur of Daspalla, respondent No. 3 Shri Durga Madhab Deo and the appellant. The reserved seat was contested by Shri Sridhar Naik (respondent No. 2), Iswar Naik, Manguli Sethi and Basudeb Naik. The last three persons were not added as parties to the application as they were not necessary parties for the reason that they contested the reserved seat and the election of respondent No. 2, Shri Sridhar Naik to the reserved seat was not challenged by the appellant. The election was held on 27-2-57 and the result was declared on 5-3-57 in which respondent No. 1 was declared elected to the general seat having obtained 17700 votes and respondent No. 2 was declared elected to the reserved seat having obtained 14561 votes. The appellant obtained 15568 votes while respondent No. 3 obtained 3589 votes. The other three scheduled caste candidates who are not added as parties Manguli Sethi, Basudeb Naik and Iswar Naik obtained 12496, 4855 and 4688 votes respectively. The appellant contested the election on Ganatantra party ticket, respondent No. 1 on the Congress ticket and respondent No. 3 as an independent candidate. Respondent No. 2 who was elected to the reserved seat is a Ganatantra party candidate.

(3.) THE appellant-petitioner alleged that the nomination of respondent No. 3 was improperly accepted as he was disqualified from contesting the election to the state Legislature being a Sar-barakar of the ten villages mentioned in the schedule to the petition in the district of Nayagarh. He stated that the office of Sarbarakar is an office of profit under the State Government and by virtue of the provisions of article 191, Clause (1) (a) of the Constitution, a Sarbarakar is disqualified from being a member of the State Assembly and that this improper acceptance of the nomination of respondent No. 3 had materially affected the election of the returned candidate under Clause (d) (i) of Sub-section (1) of Section 100 of the act. He also alleged that respondent No. 3 committed a corrupt practice by exercising undue influence over the electors by obtaining their oath in the temple of Shri dutikeswar Deb to vote for him and got him elected; and that he distributed a pamphlet giving wide publicity to the promise made by the leading members of the constituency making systematic appeal on grounds of religion for the furtherance of the prospects of his election and thus interfered with the true exercise of the electoral right of many of the voters. Next the appellant-petitioner urged that respondent No. 1 committed corrupt practices by bribing the voters in the villages covered under the polling booths at nijgarh Arang and Barkoli within the Banpur Police Station through his agents Ram chandra Praharaj and others named in the petition between 10th and 24th february, 1957, for inducing the electors to vote for him. He further alleged that respondent No. 1 being a Minister of the Orissa Cabinet distributed rugs and other garments among the 'soura' and 'kondh' electors under the polling booths of Nijgarh Arang and Barkoli during the period from 10th to 24th February, 1957, with the help of Tahsildar of Banpur who is a Government servant and gave the voters to understand that the articles were distributed by the raja Bahadur so that they might vote for him. It was also stated in the petition that a feast was held at the Balugan Palace of the raja of Parikud who is the natural brother of respondent No. 1 to which several influential voters had been invited and they were induced to support the cause of respondent No. 1 in the election. The appellant further alleged that respondent No. 1 obtained the assistance of Sarpanches of several villages within the Banpur police Station represented by Shri Ram Chandra Praharaj and other named persons for the furtherance of the prospects of his election and appointed some of them as his agents for doing propaganda and a pamphlet was published under the signatures of the aforesaid Sarpanches containing statements of facts in relation to the personal character and conduct of the petitioner and his father late Pandit godavaris Misra which were false and which the said persons knew or believed to be false or at least not to be true; that the statements so made were calculated to prejudice the prospects of the petitioner's election; and that the pamphlet was widely circulated in the constituency and had materially affected the result of the election. The petitioner stated that by this publication of the false statements in relation to the personal character and conduct of the petitioner and procur ing the assistance of the Sarpanches who are re venue officers in the service of the Government as provided in Claise (f) of Sub-section (7) to Section 123 of the Act, respondent No. 1 had committed corrupt prac tices as a result of which his election should be set aside.