Orissa High Court Annuls 2019 Election Of Congress MLA Mohammed Moquim For Improper Declaration Of Pending Criminal Cases

The Orissa High Court, on Monday, nullified the election of Congress MLA Mohammed Moquim from Barabati Constituency in Cuttack. While holding the 2019 election of the legislator to be void, the Single Bench of Justice Sangam Kumar Sahoo observed –

“…the Respondent has not made proper and full declaration about the thirteen criminal cases pending against him in the affidavit filed in Form 26 and on account of the defects as pointed out by the Election Petitioner, the result of the election in so far as it concerns the returned candidate/Respondent has been materially affected and it cannot be said that the Respondent was duly elected.”

Case Background

Mohammed Moquim contested in the Odisha Assembly Election 2019 as the official candidate from the Congress party. He secured 50244 votes in his favour whereas Debashish Samantaray, the candidate fielded by the Biju Janata Dal (BJD) was able to gather 46417 votes. Accordingly, Moquim was declared as the winner.

After the declaration of the election results, Samantaray filed a petition challenging the election of Moquim. Two grounds were mainly cited for impugning the election result, i.e. (i) nomination papers were not properly filed by Moquim; (ii) he suppressed material information about 13 criminal cases pending against him; and (iii) he did not furnish proper and full details of property held by himself as well as his spouse Firdousia Bano.

While contesting, the respondent MLA challenged the maintainability of the very petition and prayed that the petition be rejected at the threshold. However, the High Court did not entertain the request and dismissed such application vide order dated 20.06.2022. The same was later upheld by the Supreme Court.

The Court proceeded on to frame as many as 38 issues for determination in the election trial. Both the parties were heard at length before the matter was reserved for judgment on February 07, 2024.

Court's Observations & Findings

At the outset, the Court rejected the objection raised by the respondent so far as the maintainability of the election petition was concerned. It held that the petitioner duly complied with the procedure laid down in law as well as the High Court Rules while filing the petition.

As far as irregularity in filing the nomination was concerned, the Court held that though every candidate seeking election to the General Assembly must file his nomination in Form 2-B as provided under the Representation of the People Act, the respondent tampered with the same and deleted a part of it.

“…the Returning Officer (P.W.3) has illegally and improperly accepted such nomination papers and the mandate of section 33 of the R.P. Act, 1951 read with Rule 4 of the 1961 Rules and the instructions issued by the Election Commission of India in exercise of power under Article 324 of the Constitution of India have been violated. The deletion of PART-II of the nomination in Form 2B by the Respondent in pursuance to the instruction given in the prescribed nomination Form 2B renders his nomination liable for rejection.”

The Court further held that the respondent did not disclose the name of the joint account holder of the two bank accounts so also other details which he was required to furnish as per the instruction given in the affidavit in Form 26.

The Bench was also of the opinion that he also failed to declare the book value of the shares as per the books of the company and he has not furnished the details about the investment made in his name and in the name of his spouse in the insurance policies so also the details in respect of his investment made by him.

Accordingly, having regard for the above, the Court came to the following findings.

It said that the nomination papers filed by the respondent were not in the prescribed Form 2B and the Returning Officer had illegally and improperly accepted the nomination papers of the respondent violating the mandate of Section 33 of the R.P. Act, 1951 read with Rule 4 of the 1961 Rules and the instructions issued by the Election Commission of India in exercise of power under Article 324 of the Constitution of India.

It was further held that the striking/deletion of PART-II of the nomination in Form 2B by the respondent in pursuance to the instruction given in the prescribed nomination Form 2B renders his nomination liable for rejection; and that the respondent did not furnish all the required information in PART-III and PART-IIIA of nomination Form 2B;

Court ruled that the defects as pointed out by the election petitioner regarding deletion of PART-II of nomination Form 2B as well as with respect to PART-III and PART-IIIA of nomination Form 2B are substantial defects; and the nomination filed by the respondent was not rightly accepted by the Returning Officer as prescribed under Section 36(4) of the R.P. Act, 1951.

"On account of the defects, as pointed out by the election petitioner, it observed that the result of the election of the returned candidate/respondent has been materially affected and it cannot be said that the Respondent was duly elected.

Finally, it held that the Returning Officer should have rejected the nomination of the respondent in the exercise of power under Section 36 of the R.P. Act, 1951 at the time of scrutiny of the nomination papers.

In view of the above findings, Justice Sahoo concluded –

“In view of my findings in the previous paragraphs, ELPET No.06 of 2019 is allowed and it is declared that the election of the Respondent as M.L.A. from the 90-Barabati Cuttack Assembly Constituency held in April 2019 is void and the same is hereby set aside. Resultantly, in view of section 151A of R.P. Act, 1951, a casual vacancy to the said constituency has occurred.”

Case Title: Debashish Samantaray v. Mohammed Moquim

Case No: ELPET No. 06 of 2019

Date of Judgment: March 04, 2024

Counsel for the Election Petitioner: Mr. Milan Kanungo, Senior Advocate; Mr. Gopal Agarwal, Advocate

Counsel for the Respondent: Mr. Bidyadhar Mishra, Senior Advocate; Mr. Tarini Kanta Biswal, Advocate

Citation: 2024 LiveLaw (Ori) 14

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