Jitu Patnaik

New Delhi, March 2: Independent candidate Jitu Patnaik will continue to represent Champua constituency in the Odisha Assembly.

The Supreme Court today rejected a plea by Congress candidate Sanatan Mahakud to set aside the election on the ground that a dead candidate’s name was not masked on the EVM and that some votes had been suppressed.

Orissa High Court had on June 21, 2011, permitted Mahakud to challenge Patnaik’s election on these two counts. But after an appeal by Patnaik, the Supreme Court set aside the high court order.

A two-judge bench of Justice R.M. Lodha and Justice H.L. Gokhale allowed Patnaik’s appeal today.

Of the 22 candidates contesting the polls, Independent candidate Akhila Kumar Mohanta died on April 13, 2009. His death was said to have been reported to the returning officer, but his name continued to appear in the list of contesting candidates and was included in the EVM.

Polling was held on April 23, 2009, in all 218 booths of the Champua Assembly constituency. The number of votes recorded in the EVMs of the 218 booths was 1,25,342 and there were 10 postal ballots. Jitu Patnaik secured 27,700 votes, while Mohakud got 27,555 votes. Mohanta, the dead candidate, got 550 votes. Patnaik was declared elected as he had secured the highest number of votes.

Mahakud challenged the election by filing an election petition before Orissa High Court. He sought the court’s intervention to declare the election of Patnaik void and declare him duly elected.

The high court, after hearing both parties, directed that the election petition would proceed only on two counts. An aggrieved Patnaik then moved the apex court. Mahakud told the top court in response to the appeal that he and Mohanta shared a common ideology and were members of the Congress.

But since he had more support base amongst the rank and file of the party, he was nominated to contest the election and Mohanta filed his nomination as an Independent candidate.

The voters who recorded voted for Mohanta were basically Congress supporters, he claimed. He argued that if Mohanta had withdrawn from the contest or his name was not displayed on the EVM, the voters would have voted for him. In that case, he would have been the winner.

On the other hand Patnaik claimed the 1951 Act does not cast any obligation upon the returning officer not to display the name of such deceased candidate in the EVM.

The top court in its judgement today said that the right to contest election or to question the election by means of the election petition is neither common law nor fundamental right.

Instead, it is a statutory right regulated by the statutory provisions contained in the 1951 Act.