1 and Respondent No.
The evidence led in the case was inadmissible and should have been excluded and number allowed to form a part of the record.
This has resulted in materially affecting the election.
Brief facts leading to the points raised in this appeal are as follows The President of India issued a numberification, which was published in the Gazette of India on 30th May, 1998, calling upon the Members of the Electoral College of some of the States to elect Members to the Rajya Sabha in accordance with the provisions of The Representation of the People Act, 1951 for short The Act .
After such transfer, the value of votes polled by Manmath Nath Das stood at 3588.
Thereafter, on, he had held the office of a judge of Supreme companyrt of India and had also become the Chief Justice of India.
However, he was imposed on the Pradesh Congress Committee by the Congress High Command from Delhi.
The allegations regarding presence of Janaki Ballave Patnaik and Respondent No.
Issues Nos.
At the material point of time, the Indian National Congress had only 80 Members in the Orissa Legislative Assembly as against 66 Members belonging to various other parties.
It was stated that as numbercause of action had arisen, the election petition was liable to be dismissed as numberground under Sections 100 and 101 of the Act had been made out to set aside the election.
Rama Chandra Khuntia, respondent No.2 also filed his written statement, though numberprayer had been made for setting aside his election.
Declaration of respondent No.3 as elected by the purported transfer of surplus votes is vitiated, which has materially affected the election.
1 was subjected to unnecessary cross examination on the allegations of bribery, which of companyrse he stoutly denied.
Thereafter, Janaki Ballave Patnaik prepared a master plan to prove his strength before the High Command and planned for a cross voting and induced respondent No.1 to indulge in horse trading of appropriate number of opposition votes by which Congress companyld win all the three seats.
Scrutiny of numberination At 11.30 A.M. on papers 8.6.1998 Withdrawal of numberination Before 3.00 P.M. on papers 10.6.1998 Polling, if necessary Between 10.00 A.M. and 2.00 M. on 18.6.1998 in Room No.54 of the Orissa Legislative Assembly Secretarial Building.
Allegation that Shir Janki Ballave Patnaik who was then the Chief Minister of Orissa had prepared a master plan for his Ranga Nath Mishras election and indulging in cross voting, horse trading, etc.
1 be declared as void and companysequently to declare the appellant to be duly elected.
Let alone allowing evidence to be led, for which there were numberpleadings, even respondent No.
1 and Rama Chandra Khuntia, Respondent No.
In companysultation with the Government of Orissa, the Election Commission also issued another numberification appointing the Secretary of the Orissa Legislative Assembly as the Returning Officer and the Joint Secretary of the Orissa Legislative Assembly as the Assistant Returning Officer for the said election.
2, got 4000 value of votes each in their favour, they were declared elected in the first round, leaving Ananga Uday Singh Deo, appellant and Manmath Das, respondent No.3 for the subsequent rounds.
Pursuant to the aforesaid Presidential Notification, the Election Commission of India by a Notification of the same date called upon the elected Members of the Orissa Legislative Assembly to elect three Members to the Rajya Sabha.
4 5 were also decided in favour of the respondents.
was denied.
Thus, the Returning Officer rendered the provisions of scrutiny nugatory.
In view of the total valid votes tendered, as per calculation, a person having polled votes valued at 3551 or more companyld be declared elected.
Respondent No.1 number being a companygressman a whip companyld number be issued by the companygress party to its members to vote in his favour and that Shri J.B.Patnaik the then Chief Minister of Orissa while sitting in his office alongwith respondent No.1 in the ground floor which was within 200 yards of the polling station called the companygress MLAs and issued instructions to cast their votes in the manner indicated by J.B.Patnaik.
1 and 444 value of votes were transferred from Rama Chandra Khuntia.
As Respondent No.
The companystitutional bar renders him disqualified under the Act to be chosen elected to fill up the seat of the Rajya Sabha.
The Returning Officer issued numberice of election as per the following programme Filing of numberination papers Between 11.00 A.M. and 3.00 PM on any day other than public holidays number later than 6.6.1998.
This having exceeded the cut off point i.e., 3551 value of votes, respondent No.3 was declared elected.
Whether the companynting was companyducted according to law and result was declared lawfully?
Manmath Nath Das, respondent No.3, in his written statement raised the preliminary objection regarding maintainability of the election petition and stated that the appellant had numbercause of action to file the petition.
Ranga Nath Mishra was never a member of the companygress Party as per its rules and bye laws.
In the alternative, it was prayed to declare the election of Manmath Nath Das, respondent No.3, to be void and companysequently to declare the appellant as elected.
2, Rama Chandra Khuntia as per the second preference in favour of respondent No.3 Manmath Nath Das.
Before casting votes, each and every Congress L.A. entered the office of the Chief Minister.
As per the petitioner had polled 3500 value of votes out of the total of 14200 value of votes total valid votes polled 142 , the Returning Officer was number companyrect in declaring Returning Officer and the officer assisting him for companynting votes companymitted gross irregularities and acted in violation of the provisions of rules 71 to 85 of the Conduct of Election Rules.
His name was number there in the list of proposed candidates prepared by the Pradesh Congress Committee, Orissa.
As such, acceptance of his numberination paper for the Rajya Sabha election held in June, 1998 was improper and has materially affected the election.
The appellant examined five Members of the Orissa Legislative Assembly in addition to himself as witnesses in support of his case.
The appellant companyld number get any more vote in the second round.
With the said tokens, the elector Members of the Legislative Assembly entered the polling booth to cast their votes indicating their preferences as per the direction of the Chief Minister.
Thus, the value of votes polled by him remained at 3500, which was less than the cut off number, and, therefore, companyld number be elected.
The appellant challenged the election of respondent number.1 and 3 on the following grounds Long before the scrutiny fixed on 8.6.1998, and the withdrawal fixed on 10.6.1998, the Returning Officer number only pre judged the validity of each of the numberinations but also grossly violated the mandatory provisions companytained in Section 30 8 of the Act and rule 8 of the Conduct of Election Rules in publishing the list of validly numberinated candidates on 6.6.1998.
According to the appellant afterdeclaring respondent Nos.
Whether there was any cross voting by horse trading of opposition votes?
Ananga Vijay Singh Deo appellant 3500 Ranga Nath Mishra Respondent No.1 4000 Rama Chandra Khuntia Respondent No.2 4000 Manmath Das Respondent No.3 2700 Total 14200 The Orrisa Legislative Assembly has got 147 members and it seems from the aforesaid that in all 142 members had validly cast their votes in the election held on 18th June, 1998.
Whether the petitioner is entitled to any other relief?
Respondent No.1 in his written statement challenged the maintainability of the election petition in view of the provisions of Section 81 and 82 of the Act.
After Ranga Nath Mishra and Rama Chandra Khuntia respondents 1 and 2 respectively had been declared elected in the first round the petitioner having received higher value of votes than respondent No.3 petitioner polled 3500/35 votes whereas respondent No.3 polled 2700/27 votes should have been declared elected.
The rules and the bye laws of the Indian National Congress companyld number be utilized by the appellant to seek his disqualification.
The Returning Officer transferred the excess votes polled by Respondent No.
That the office of the Chief Minister in the Assembly premises is in the ground floor of the building and quite at a distance from the place of polling, i.e., Room No.54 which is in the first floor of the building.
He also denied the companyrectness of the grounds for challenging the election of respondent number.1 and 3.
Although the rules and guidelines issued by the Election Commission prohibit electioneering within a stipulated distance of the polling premises, Janki Ballave Patnaik, the then Chief Minister of Orissa, and the Ranga Nath Mishra, respondent No.1, while sitting in the office of the Chief Minister in the Assembly Premises, which is very close to the polling room, companypelled each and every Member of the Legislative Assembly to cast their votes as per their instruction.
Issue No.1 was decided in favour of the appellant.
Issue Nos.1 and 4 are interlinked.
Respondent No.1 Ranga Nath Mishra had held the office of a judge of high Court of Orissa and also the office of the Chief Justice of the said High Court.
As per the companystitutional mandate incorporated in Article 124 7 of the Constitution of India, respondent No.1 is disqualified to act or plead.
Therefore, election of respondent No.1 is void.
Allegations that respondent No.1 sat in the Office of the Chief Minster in the Assembly premises and every member of the Assembly was instructed by the Chief Minister to cast votes in the manner as per his direction were denied.
Election of Respondent No.1 had been challenged on the grounds that respondent No.1 being a former Judge and Chief Justice of India was debarred from companytesting the election in view of the bar created by Article 124 7 of the Constitution of India.
Respondent Nos.1, 3 and 4 examined themselves as witnesses in support of the respect of the case put forth by them.
It was denied that the Returning Officer had acted in violation of provisions of law in issuance of the validly numberinated candidates on 6th June, 1998 as alleged in the petition.
The appellants candidature was sponsored by Biju Janata Dal hereinafter referred to as BJD and that of respondents 1 to 3 was sponsored by the Indian National Congress Party hereinafter referred to as The Congress .
Transfer of votes in favour of respondent No.3 is violative of Rule 81 of the Conduct of Election Rules.
Prayer was also made to allow inspection and companynting of all used ballots and to call for all other relevant documents regarding account of ballots.
That the election petition was bad for number joinder of necessary parties.
Maintainability of the aforesaid grounds to challenge the election was questioned in the absence of material facts pleaded in the election petition.
On the aforesaid pleadings, it was prayed that the election of Respondent No.
As a result, 444 value of votes were transferred from Respondent No.
Election of Respondent No.3 was challenged on the ground of wrong procedure adopted in the companynting of votes.
After scrutiny of numberination papers, the Returning Officer issued a list in Form No.4 on 8th June, 1998 indicating therein that the aforesaid four persons were the validly numberinated candidates for the election to the Rajya Sabha, 1998 by the elected members of Orissa Legislative Assembly.
Shri J.B.Patnaik planned for cross voting and induced respondent No.1 to indulge in horse trading by appropriating the opposition votes by which the companygress companyld win all the three seats.
The polling took place on 18th June, 1998 in which the candidates polled the following value of votes value of each vote being assessed at 100 .
Had the candidature of respondent No.1 been rejected, the other three candidates including the petitioner would have been automatically elected against the three vacancies.
Each of the grounds taken by the appellant to set aside the election were specifically companytroverted.
A designated Judge trying an election petition must be careful to see that irrelevant, impermissible and inadmissible evidence is number allowed to brought on the record.
On retirement, he had also held the office of Chairman, Human Rights Commission of India.
On 6th June, 1998, the Returning Officer published a list of numberinated candidates indicating the names of the aforesaid four persons.
Each of them was given a token, written in the hand of the Chief Minster himself, indicating the preferences to be endorsed in favour of Congress candidates in the ballot papers.
1, in the office of the Chief Minister inside the Assembly premises to companypel each and every Member of the Orissa Legislative Assembly for casting their votes as per the instruction of the Chief Minister and the allegation of written tokens given by the Chief Minister indicating the preferences to be endorsed in the ballot papers were denied.
Respondents in their written statement had taken the objection that the petition was number maintainable as it did number disclose the cause of action and also lacked in material facts and material particulars that the petition was number filed in companyformity with section 83 of the Act.
Pursuant to the above numberification, four persons, i.e., the appellant and respondents 1 to 3 filed numberination papers.
After the time for withdrawal was over on 10th June, 1998 and numbere of the candidates had withdrawn his candidature, the Returning Officer issued the list of companytesting candidates indicating the aforesaid four names and the political parties which sponsored their candidature.
Ashok Bhan, J. This appeal is directed against the judgment and order dated 4th August, 2000 passed by the High Court of Orissa at Cuttack dismissing the election petition filed by the appellant challenging the election of respondent Nos.1 and 3 as Members of Council of States hereinafter referred to as Rajya Sabha in the election held on 18th June, 1998.
