DHARANIDHAR MOHAPATRA Vs. PRADIPTA KISHORE DAS

JUDGEMENT

(1.) THIS appeal under section 116A of the Representation of the People Act (Act 43 of 1951), hereinafter referred to as "the Act" is directed against an order of Shri T.V. Rao, sole member, Election Tribunal, Puri, dated the 26th March, 1958, dismissing an elector's petition challenging the election of the successful candidate (respondent No. 1) to the Orissa Legislative Assembly on grounds of corrupt practices of bribery by illegal gratification and carrying the voters by hired bullock carts, undue influence of threat, and the publication of a pamphlet (exhibit 6) in relation to the personal character or conduct of one of the contesting candidates (respondent No. 3). It is significant to note that none of the contesting candidates has filed this petition to avoid the election of the successful candidate. The petition was filed by one Shri Dharanidhar Mohapatra, an elector of the Mahanga -Salepur constituency in the district of Cuttack challenging the election of Shri Pradipta Kishore Das, (respondent No. 1) from the general seat to the Orissa State Legislative Assembly. During the prior election this area was divided into two constituencies, namely, Mahanga and Salepur. Subsequently, they were amalgamated by an order of the Delimitation Committee and made into one constituency for the present election and is now known as the Mahanga -Salepur constituency. Since it is a double -member constituency two candidates were to be elected, one for the general and the other for the reserved seat. For the reserved seat there were two contesting candidates. They were Shri Baidhar Behera, respondent No. 2, and Shri Niranjan Jena, respondent No. 4. Shri Baidhar Behera was contesting the election as a Praja Socialist candidate whereas Shri Niranjan Jena was contesting as a Congress candidate. Shri Baidhar Behera was returned elected and his election is not being challenged by this petition. For the general seat there were, however, five contesting candidates. They were Shri Pradipta Kishore Das (respondent No. 1), the successful candidate, Shri Surendra Nath Patnaik (respondent No. 3), Shri Bhagirathi Misra (respondent No. 5), Shri Khetramohan Swain (respondent No. 6) and Shri Abdul Matilab (respondent No. 7). The first respondent, as stated earlier, was declared elected defeating the other four candidates. Thus both the returned candidates, for the general as well as for the reserved seats, from this constituency were Praja Socialist Party candidates. The other defeated candidates were contesting on independent tickets except respondent No. 3 who was contesting on a Congress ticket. The election was held on 3rd March, 1957, and the result of the poll was announced on 14th March, 1957.

(2.) SHORN of all unnecessary details, the election of the successful candidate in this case was challenged mainly on four grounds: - -(1) Corrupt practice of bribery and inducing the voters to vote for the successful candidate and to refrain from voting for the respondent No. 3 through the polling agents of respondent No. 1, Shri Birakishore Bhuyan and Shri Sarat Chandra Naik, by paying Rs. 300 to Shri Baidyanath Mohanty on 16th February, 1957, and Rs. 100 to Shri Sarat Chandra Naik on 22nd February, 1957, for payment to poor voters within the areas appertaining to polling booths of Pallada, Nagashpur and Tilida. The further allegation of bribery was that on 26th February, 1957, the successful candidate promised Rs. 50 to one Kelu Charan Naik, the Secretary of Agyanpur L.P. School and a gift of Rs. 40 to Chakradhar Lenka, Secretary of the Jamara L.P. School, with the object of indirectly inducing the electors to vote for the successful candidate and to refrain from voting for Shri Surendra Nath Patnaik. (2) On the date of poll, that is on 3rd March, 1957, the successsful candidate and his supporter, Shri Rajkishore Jena, engaged eight bullock carts on hire for carrying female voters as well as old and infirm voters from the villages of Kutilo, Chapchikana, Gopinathpur, Naiguan and Taraf Sashan to their respective booths. (3) On 27th March, 1957, the workers of the successful candidate, viz., Mani Charan Mohanty, Chintamani Padhan and others threatened and intimidated, and caused injuries to Khirod Chandra Mohanty and Natabar Das, supporters of the third respondent in a political meeting convened by him at Raisungura. Thus, they created disturbances in the said meeting and thereby exercised undue influence on the electors in the free exercise of their electoral right by threatening people with violence if they support the candidature of the third respondent set up by the Congress. (4) A pamphlet (exhibit 6) under the caption "Surendra Patnaik" was published by Shri Anil Kumar Ghosh, Secretary, Mahanga Praja Socialist Party containing false statements relating to the personal character and conduct of the candidate, Shri Surendra Nath Patnaik, and circulated and the said pamphlet was reasonably calculated to prejudice the prospects of Shri Patnaik's election. The allegation was that the author of the statements knew and believed that they were false. It was further averred that the payments made to Shri Baidyanath Mohanty, Shri Sarat Chandra Naik and Shri Chakradhar Lenka, were not included in the election expenses maintained under section 77 and lodged by the successful candidate under section 78 of the Act. The said accounts were thus challenged not to have been maintained in accordance with law. Accordingly* the petitioner prayed for declaring the election of respondent No. 1 as void.

(3.) RESPONDENT No. 1, the successful candidate filed a written statement denying all the allegations in the election petition. He challenged the maintainability of the petition on the ground that it was not presented within the time as provided in section 81 and that the petitioner did not comply with the provisions of sections 83 and 117 of the Act. He averred that no details of the particulars of corrupt practices were appended to the petition. The maintainability was also challenged on the ground that no relief was claimed against the returned candidate for the reserved seat although it is a double -member constituency. The petitioner's locus standi to file such a petition is also attacked. In particular he denied the payment of any money to Baidyanath Mohanty through Birakishore Bhu -yan or Sarat Chandra Naik for bribing the voters. He categorically denied that either Birakishore nor Sarat Chandra was his polling agent. Similarly he denied that Baidyanath Mohanty was his agent either. According to him Baidyanath was a supporter of Shri Surendra Nath Patnaik for whom he was canvassing during the election. He also denied any promise or payment to the Secretary of the Agyanpur or Jamara Schools for inducing the voters. The carrying of voters in bullock carts hired for the purpose was also denied. It was stated that Rajib Jena was not his agent and he never authorised him to do any work in furtherance of the prospects of his election. On the other hand, according to him, Rajkishore Jena was an active canvasser for Shri Surendra Nath Patnaik. He also denied the exercise of undue influence on the candidate or on the electors in the meeting held at Rai -sungura. Regarding the pamphlet, it was contended that he had nothing to do with its publication and that it was not published during the election period and that the statements made in that pamphlet were not false and were never calculated to prejudice the election prospects of the third respondent. The particulars of this allegation were not given in the petition, and therefore, it did not call for any reply. However, he contended that the statements that Shri Surendranath Patnaik was disqualified for being a member of the Orissa Legislative Assembly on a petition filed by an elector, Shri Sidheswar Das, to the Governor of Orissa under article 191 of the Constitution for having taken contracts under the State Government in contravention of the provisions of section 7 of the Act, was enquired into by the Election Commission, on whose recommendation the Governor eventually passed an order of disqualification which was published in the official gazette on 25th January, 1957, was believed by him to be true. The statements thus made in the pamphlet had nothing to do with the personal character or conduct of the third respondent nor with his candidature. The fact was that he was unpopular in his constituency for taking contracts in his own name and benami in the name of his wife and friends, and for making illegal gains out of the said contracts. That was the reason for his suffering a defeat in the last election. The election accounts have been properly maintained in accordance with law. According to the first respondent, the present petition was filed at the instance of the third respondent with whose recommendation the petitioner, Dharanidhar Mohapatra, was appointed a trustee of the Harachandi Endowment against the wishes of the people of that locality. Accordingly, he prayed for dismissal of the petition.