Debashish Samantaray vs Mohammed Moquim

S.K. Sahoo, J

I.A. No.19 of 2022

This matter is taken up through Hybrid arrangement (video conferencing/physical mode).

This application has been filed by the respondent Mohammed Moquim for dismissal of the Election Petition No.06 of 2019 under section 86(1) of the Representation of the People Act, 1951 (hereafter ‘1951 Act’) on account of non-compliance of provision under section 117 of the 1951 Act.

Mr. Bidyadhar Mishra, learned Senior Advocate appearing for the respondent submitted that since at the time of presentation of the election petition, the election petitioner has not complied with the provision under section 117 of the 1951 Act, the election petition is liable to be dismissed in view of the mandate under section 86 of 1951 Act.

Section 117 of the 1951 Act reads as follows:

“117. Security for costs.— (1) At the time of presenting an election petition, the petitioner shall deposit in the High Court in accordance with the Rules of the High Court a sum of two thousand rupees as security for the costs of the petition.

(2) During the course of the trial of an election petition, the High Court may, at any time, call upon the petitioner to give such further security for costs as it may direct.”

On 09.09.2022 Mr. Bidyadhar Mishra, learned Senior Advocate appearing for the respondent referring to Annexure-A, which is the challan of deposit of Rs.2,000/- (rupees two thousand) with the cashier submitted that Rule 1 of Chapter XXII of the Rules of High Court of Orissa, 1948 has not been followed while issuing such challan, which is to be filed along with the election petition and the entry of that deposit has also mentioned in a different ink while Stamp Reporting the Election Petition on 18.07.2019 which creates suspicion as to whether the aforesaid amount of Rs.2,000/- (rupees two thousand) was deposited on 03.07.2019 or subsequently and whether challan of deposit was filed with the Election Petition or not.

Mr. Milan Kanungo, learned Senior Advocate appearing for the election petitioner filed objection to this interim application.

For better appreciation of the contentions raised, a report was called for from the learned Registrar (Judicial) of this Court as to whether cash of Rs.2,000/- (rupees two thousand) has been deposited on 03.07.2019 and the challan as has been annexed to the election petition was issued on the very day or not and filed with the election petition on that day or not and the report was also directed to indicate whether Rule 1 of Chapter XXII of the Rules of High Court of Orissa, 1948 has been followed or not.

In pursuance of such order, learned Registrar (Judicial) of this Court has submitted the report dated 16.09.2022 in a closed cover, which indicates as follows:

“ For compliance of the order of the Hon’ble Court, reports were called for from the Cashier and Superintendent, MJC Section of the Court. They have submitted their reports placed at Flags ‘A’ and ‘B’ respectively.

The Cashier has reported that deposit of cash of Rs.2,000/- was made on 03.07.2019 with Challans in triplicate filed by the learned counsel for the petitioner towards security deposit in ELPET No.___of 2019 (Debashis Samantaray Vrs. Mohhammed Moquim). He being the Cashier received the challans and cash of Rs.2,000/- only towards security deposit in the above Election Petition and the above amount was deposited vide Challan No.18 dated 03.07.2019. Thereafter, one copy of the deposited challan was handed over to the learned counsel for the petitioner, second copy of the challan was sent to MJC Section to be kept with the record and kept the third copy of the same serially in the Guard File of the Accounts Section. A Photostat copy of the challan kept in the Accounts Section furnished by the Cashier along with his report is placed at Flag ‘C’.

The Superintendent, MJC section has reported that during presentation of the Election Petition (ELPET No.06 of 2019) before the Registrar (Judicial), the challan showing deposit of Rs.2,000/-was tagged with the Election Petition and this has been marked by the Registrar (Judicial) in the first page of the Election Petition. A Photostat copy of the challan filed by the petitioner at the time of presentation of the Election Petition and copy of the first page of the Election Petition bearing endorsement of the Registrar (Judicial) are placed at Flag ‘D’ and ‘E’.

Basing on the reports of the Cashier and Superintendent, MJC Section, it is humbly submitted that a cash of Rs.2,000/- (rupees two thousand) had been deposited on 03.07.2019 with the Cashier, the challan was issued on 03.07.2019 and it was filed with the Election Petition on 03.07.2019. It is humbly submitted that Rule-1 of Chapter-XXII of the Rules of the High Court of Orissa, 1948 had been followed while filing the Election Petition.”

Thus from the report of the learned Registrar (Judicial), it is apparent that the averments taken in the I.A. that there has been non-compliance with the provision of section 117 of 1951 Act at the time of presentation of the election petition is not acceptable.

Earlier the respondent has filed an interim application bearing I.A. No.20 of 2019 under Order-VI Rule 16 and Order-VII Rule 11 read with Order-VII Rule 14 of the Code of Civil Procedure, 1908 (hereafter ‘C.P.C.’) read with sections 83, 86 and 87 of the 1951 Act praying to strike out the pleadings made under paragraphs 7(A) to 7(J) of the election petition filed by the election petitioner and also with a further prayer to reject the election petition at the very threshold in its entirety for want of cause of action without entering into the merits of the case, which has been dismissed as per order dated 20.06.2022. Challenging the said order, the respondent moved the Hon’ble Supreme Court in Special Leave to Appeal (C) No.

12653 of 2022, which has been dismissed as per order dated 29.07.2022.

Considering the submissions made by the learned counsel for the respective parties, I am of the humble view that filing of this I.A. is an attempt just to delay the trial of the election petition. The prayer made in the I.A. is totally baseless.

Accordingly, the I.A. stands dismissed.

I.A. No. of 2022

This application is filed in Court by the learned counsel for the respondent for grant of urgent Xerox certified copy of the report of the learned Registrar (Judicial) of this Court, which was submitted in I.A. No.19 of 2022 pursuant to the order dated 09.09.2022.

Let the Registry register the same.

After going through the averments taken in the application and on hearing the learned counsel for the respective parties, I am not inclined to grant the urgent Xerox certified copy of the report of the learned Registrar (Judicial) of this Court.

Accordingly, the I.A. stands dismissed.

I.A. No.24 of 2022

This interim application has been filed by the election petitioner to preserve the uploaded data on the web portals as described in the petition itself.

This Court by order dated 28.02.2022 passed interim order directing the Election Commission of India, ECO Orissa, District Election Officer, Cuttack and the Returning Officer of 90-Barabati Cuttack Assembly Constituency to preserve the uploaded data in the web portals as prayed for by the election petitioner.

After hearing the learned counsel for the respective parties, the interim order dated 28.02.2020 passed in this interim application is made absolute.

I.A. No.15 of 2022

This is an application filed by the election petitioner to produce and prove the uploaded data i.e. all the nomination papers along with the affidavits filed by the respondent before the Returning Officer of 90- Barabati Cuttack Assembly Constituency and uploaded by the Returning Officer on 02.04.2019 in the web portal of Election Commission of India.

Mr. Bidyadhar Mishra, learned Senior Advocate appearing for the respondent files objection to this interim application in Court today after serving a copy of the same on the learned counsel for the election petitioner.

The matter will be taken up as and when required.

I.A. No. of 2022

This interim application is filed in Court by the election petitioner for a direction to the Election Commission of India to preserve the uploaded data of all the nomination papers along with the affidavits filed by the respondent before the Returning Officer of 90-Barabati Cuttack Assembly Constituency and uploaded by the Returning Officer on 02.04.2019 in the web portals/hyperlinks as stated in the petition.

Let the Registry register the same.

Mr. Bidyadhar Mishra, learned Senior Advocate appearing for the respondent seeks some time to file objection.

As per order dated 28.02.2022 passed in I.A. No.24 of 2022 this Court passed interim order to preserve the uploaded data in some web portals as stated in the said order, which has been made absolute today.

Mr. Milan Kanungo, learned Senior Advocate appearing for the election petitioner submitted that in the present application, he has furnished the details of four web portals/hyperlinks in which the uploaded data of the Returning Officer on 02.04.2019 to be preserved.

As an interim measure, it is directed that the Election Commission of India shall preserve the data uploaded by the Returning Officer of 90-Barabati Cuttack Assembly Constituency on 02.04.2019 in the web portals/hyperlinks as mentioned in the prayer portion till the next date.

A copy of the order along with the copy of the I.A. shall be forwarded by the learned Registrar (Judicial) immediately to the Election Commission of India for compliance.

ELPET No.06 of 2019

On consensus of both the parties, the case is posted to 14th October 2022 for settlement of issues.

Let the learned counsel for both the parties exchange their draft issues between them and file it on the next date.

Mr. Bidyadhar Mishra, learned Senior Advocate appearing for the respondent submits that he will file the list of witnesses and documents as required under Order XIII Rule 1 of C.P.C. and Rule 10 Vol.III of Chapter-XXXIII of the Orissa High Court Rules, 1948.

Mr. Bidyadhar Mishra, learned Senior Advocate further submits that though on the submission of both the parties, the records of election petition were directed to be kept with the Registrar (Judicial) of this Court in a sealed cover since 26.08.2022 onwards, in view of the disposal of the I.A. No.19 of 2022 today, there is no need to keep the records in the sealed cover.

Mr. Milan Kanungo, learned Senior Advocate appearing for the election petitioner also agrees with the submission of Mr. Mishra.

Henceforth, the records of the election petition shall not be kept in sealed cover, however, the report of the learned Registrar (Judicial) of this Court dated 16.09.2022 furnished in connection with I.a. No.19 of 2022 shall be kept in a sealed cover.

Urgent certified copy of the orders passed today be granted to the parties on proper application.

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