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IN THE HIGH COURT OF ORISSA
K.R. MOHAPATRA, J.
Pratyusha Rajeshwari Singh – Petitioner
Versus
Sri Rudra Madhab Ray – Opposite Party
Misc. Case No. 16 of 2015 & Arising Out of ELPT No. 24 of 2014
Decided On : 24-12-2015
ELECTION - CITIZENSHIP - QUESTIONING CITIZENSHIP OF CANDIDATE - ELECTION PETITION - MATERIAL FACTS - CAUSE OF ACTION - STRIKING OUT PLEADINGS - REJECTION OF ELECTION PETITION - POWER OF COURT - INTERPRETATION OF SECTIONS 4, 16, 83(1)(A) OF REPRESENTATION OF PEOPLE ACT, 1951, SECTION 13D OF REPRESENTATION OF PEOPLE ACT, 1950, SECTION 3 OF CITIZENSHIP ACT, 1955, ARTICLE 84, 102 OF CONSTITUTION OF INDIA, ORDER 6 RULE 16, ORDER 7 RULE 11 OF CODE OF CIVIL PROCEDURE, 1908.
Fact of the Case:
Petitioner, Pratyusha Rajeswari Singh, was elected as a Member of Parliament (Lok Sabha) in a bye-election held on 26th September, 2014. The opposite party, Hemendra Chandra Singh, filed an election petition challenging the election of the petitioner on the ground that she was not a citizen of India and was disqualified to be chosen as a member of Parliament. The petitioner filed a misc. case under Order 6 Rule 16 and Order 7 Rule 11 of Code of Civil Procedure, 1908 read with Section 86 of the Representation of Peoples Act, 1951 (the Act) praying to strike out/delete paragraphs-5 to 12 of the election petition as well as to reject the election petition on the ground that the submissions and allegations made in the election petition do not make out any ground for challenge as contemplated under Section 100 of the Act and the allegations made in the election petition are not in conformity with Section 83 of the Act.
Finding of the Court:
1. The question of citizenship of a candidate can be gone into in an election petition. (Para 14) 2. The irregularities and impropriety in granting certificate under Section 13 of the Citizenship Act, 1955 can be gone into in an election petition. (Para 16) 3. The question whether a person is a citizen of India and hence qualify for, or disqualify from, contesting an election can be raised before and tried by the High Court in the election petition, provided the challenge is based on factual matrix given in the petition and not merely on bald or vague allegations. (Para 16) 4. Inclusion of the name of a candidate in the electoral roll gives a finality to the fulfillment of requirement/qualification of a voter is concerned, but it cannot be deemed to be final and conclusive in respect of a candidate by the Election Tribunal, for being chosen and/or being elected as a member in the House of People. (Para 22) 5. All those facts which are essential to clothe the election petitioner with a complete cause of action are “material facts” which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act. (Para 24) 6. The election petition does not disclose all materials facts formulating a complete cause of action. (Para 38) 7. The pleadings in the election petition if read as a whole do not give rise to a triable issue. (Para 39)
Issues: 1. Whether the question of citizenship of a candidate can be gone into in an election petition? 2. Whether the irregularities and impropriety in granting certificate under Section 13 of the Citizenship Act, 1955 can be gone into in an election petition? 3. Whether the question whether a person is a citizen of India and hence qualify for, or disqualify from, contesting an election can be raised before and tried by the High Court in the election petition? 4. Whether inclusion of the name of a candidate in the electoral roll gives a finality to the fulfillment of requirement/qualification of a voter is concerned? 5. Whether all those facts which are essential to clothe the election petitioner with a complete cause of action are “material facts” which must be pleaded? 6. Whether the election petition discloses all materials facts formulating a complete cause of action? 7. Whether the pleadings in the election petition if read as a whole give rise to a triable issue?
Ratio Decidendi: 1. The question of citizenship of a candidate can be gone into in an election petition, provided the challenge is based on factual matrix given in the petition and not merely on bald or vague allegations. (Para 14, 16) 2. The irregularities and impropriety in granting certificate under Section 13 of the Citizenship Act, 1955 can be gone into in an election petition. (Para 16) 3. Inclusion of the name of a candidate in the electoral roll gives a finality to the fulfillment of requirement/qualification of a voter is concerned, but it cannot be deemed to be final and conclusive in respect of a candidate by the Election Tribunal, for being chosen and/or being elected as a member in the House of People. (Para 22) 4. All those facts which are essential to clothe the election petitioner with a complete cause of action are “material facts” which must be pleaded, and the failure to place even a single material fact amounts to disobedience of the mandate of Section 83(1)(a) of the Act. (Para 24) 5. The election petition does not disclose all materials facts formulating a complete cause of action. (Para 38) 6. The pleadings in the election petition if read as a whole do not give rise to a triable issue. (Para 39)
Final Decision: The misc. case was allowed. The election petition was dismissed.
JUDGMENT :
K.R. MOHAPATRA, J.
1. This is an application filed under the provisions of Order 6 Rule 16 and Order 7 Rule 11 of Code of Civil Procedure, 1908 read with Section 86 of the Representation of Peoples Act, 1951 (for short, ‘the Act’).
2. Facts in nutshell relevant for appropriate adjudication of this misc. case are as follows:-
As reveals from the case record, on 10.04.2014, the General Election of 13-Kandhamal Parliamentary Constituency (Lok Sabha) was held and the result was declared on 16th May, 2014 declaring Sri. Hemendra Chandra Singh (the husband of the petitioner herein) as Member of Parliament (Lok Sabha). Unfortunately, said Hemendra Chandra Singh breathed his last on 5th September, 2014. Thus, the seat of 13-Kandhamal Parliamentary Constituency (Lok Sabha) fell vacant. As a result, the Election Commission in exercise of power under Section 149(1) read with Sections 30 and 56 of the Act called upon the said Parliamentary constituency to elect a person for filling up the casual vacancy. As per the Gazette Notification, 26th September, 2014 was the last date for filing up of nomination paper. 27th September, 2014 was the date for scrutiny of the nominations and 29th September, 2014 was the last date for withdrawal of the nomination/candidature. 15th October, 2014 was the date of poll and 19th October, 2014 was the date of counting and declaration of result, in which the petitioner was declared elected with a margin over 2,98,868 votes from the opposite party. Assailing the said election, the opposite party herein filed the aforesaid election petition (ELPT No. 24 of 2014) under Sections 80, 84, 100 and 117 of the Act read with provisions of Orissa High Court Rules, 1948 with the following prayers:-
“(A) To declare that the Respondent, Pratyusha Rajeswari Singh is not a citizen of India and has not acquired the citizenship of India having married to Indian citizen Mr. Hemendra Chandra Singh;
(B) To declare that the Respondent Pratyusha Rajeswari Singh is not qualified/ disqualified for being chosen as and for being a member of Parliament from 13-Kandhamal Parliamentary Constituency as she is not a citizen of India;
(C) To declare that the election of the Respondent, Pratyusha Rajeswari Singh as elected Member of Parliament of 13-Kandhamal Parliamentary Constituency to be void and set aside the same;
(D) To declare that a casual vacancy has been created so far as it relates to 13-Kandhamal Parliamentary Constituency;
(E) To direct the appropriate authority to conduct fresh election with respect to 13-Kandhamal Parliamentary Constituency within the time specified and prescribed;
(F) To call for the nomination papers of Respondent along with all accompanying documents from the custody of Returning Officer, 13-Kandhamal Parliamentary Constituency;
(G) For costs;
(H) For any other relief or reliefs to which the petitioner is entitled to under law.”
3. By order dated 18.12.2014, this Court directed for issuance of notice on admission in the election petition. On appearance, the petitioner filed this misc. case with a prayer to strike out/delete paragraphs-5 to 12 of the election petition as well as to reject the election petition on the ground stated therein. It is contended, inter-alia, that the submissions and allegations made in the election petition do not make out any ground for challenge as contemplated under Section 100 of the Act and the allegations made in the election petition are not in conformity with Section 83 of the Act. It is further stated that the averments made in the election petition do not disclose the manner in which the result of the election has been materially affected. The election petition also does not disclose the material fact as contemplated under Section 83(1)(a) of the Act. Since the averments made in the election petition do not constitute a complete cause of action, the election petition is bad. The allegations made in paragraphs-6 to 11 of the election petition are completely bald, vexatious, f
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