Orissa High Court
Afr Aswini Kumar Patra vs Brajamohan Pradhan ……. Opp. Party on 11 March, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. No. 132 of 2024 &
I.A. No. 133 of 2024
(Arising out of ELEPT No. 5 of 2024)
(Applications under Sub-Section(1) of Section 83 of the
Representation of the People Act, 1951 read with Rule 94-A of the
Conduct of Election Rules, 1961 and Order-VII Rule 11(d) of the
CPC, and under Order-VI Rule-16 of the CPC respectively).
---------------
AFR Aswini Kumar Patra ...... Petitioner
(Respondent)
- Versus -
Brajamohan Pradhan ....... Opp. Party
(Election Petitioner)
Advocate(s) appeared in this case:-
__________________________________________________________________
For Petitioner : Mr. Bidyadhar Mishra, Sr. Advocate
(Respondent) with M/s. T.K. Biswa, (Mrs.) R.P. Panda,
P. Bharadwaj & B.S. Panigrahi, Advocates
For Opp. Parties : Mr. Manas Mohapatra, Sr. Advocate,
(Election Petitioner) with M/s. A.P. Bose, S.K. Mohapatra,
S. Swain, S.K. Routray, D. Sahoo, D.K.
Sethy & S. Satpathy, Advocates
_____________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
th
11 March, 2025
SASHIKANTA MISHRA, J. Both these applications have been filed
by the sole respondent of the above election petition. I.A. No.
Page 1 of 31
132 of 2024 has been filed for dismissal of the election petition
at the threshold for non-compliance of the provision under
Section 83(1) of Representation of the People Act, 1951 (in
short, the ‘Act’) read with Rule 94-A of the Conduct of Election
Rules (in short, the ‘Rules’) and Order-VII Rule 11(d) of CPC.
I.A. No. 133 of 2024 has been filed for striking out the
pleadings of the election petition as per the provisions under
Order-VI Rule -16 of CPC. Both the applications essentially
involve the same facts and issues and were therefore, heard
together and are being disposed of by this common order.
2. The election petition has been filed by the election
petitioner (a) to declare the election of respondent, Aswini
Kumar Patra as void and (b) to direct re-election/ fresh poll in
respect of 35 Jaleswar Assembly Constituency to the Odisha
Legislative Assembly. The election of the respondent has been
questioned basically on two grounds, (i) the respondent
appointed one Manas Jena as his election agent and counting
agent, who is disqualified to act as such as per law and, (ii)
the respondent through his election and counting agent has
influenced the result of the election by taking advantage of his
Page 2 of 31
position as Chairman of Panchayat Samiti, for which the
result of the election was materially affected.
3. Pursuant to notice, the respondent entered
appearance and filed his written statement. Additionally, he
filed the present applications on grounds that would be
highlighted hereinafter. The election petitioner has filed
detailed objections to the said applications.
4. In I.A. No. 132 of 2024 it is stated that though the
election petitioner has made allegations of corrupt practice,
has not filed the required affidavit in Form-25 along with the
election petition, which is in violation of the provision under
Section 83(1) of the Act read with Rule 94-A of the Rules. It is
also stated that the election petitioner has failed to
disclose/plead the material facts and material particulars of
commission of such corrupt practice, which is in violation of
Section 83(1)(a) and (b) of the Act. It is also stated that the
challan showing deposit of Rs.2,000/- towards security for
cost of the petition as per Section 117 of the Act is defective
Page 3 of 31
and being an incurable defect, the election petition is liable to
be rejected.
I.A. No. 133 of 2024 has been filed by stating that
the pleadings under Paragraphs-9(A) to (F) are unnecessary,
scandalous, frivolous and vexatious and tend to prejudice and
embarrass and delay the fair trial of the case. As such, they
are liable to be struck out. In this context it is stated that the
said paragraphs of the election petition contain allegations
with regard to disqualification of Manas Jena as the
election/counting agent of the respondent but without
referring to the specific provision of law or the latest
instruction of the Election Commission of India in this regard.
The other allegations made under paragraph-9 of the election
petition constitute corrupt practices but are vague and do not
make out a cause of action.
5. Heard Mr. Bidyadhar Mishra, learned Senior
Counsel with Mr. T.K. Biswal, learned counsel for the
petitioner- respondent and Mr. Manas Mohapatra, learned
Page 4 of 31
Senior Counsel with Mr. A.P. Bose, learned counsel appearing
for the opposite party- election petitioner.
6. As has already been stated hereinbefore, the
election petition is based on two allegations; (i) Manas Jena,
the election and counting agent of respondent was disqualified
to act as such under the provisions mentioned in paragraph –
9(C) and 9(E) (ii) the respondent through Manas Jena
influenced the result of the election by adopting unfair means
and undue influence as highlighted in paragraphs 9(D) and
9(F) of the Election Petition. On the first issue noted above,
Mr. Mishra would argue that admittedly, Manas Jena was
appointed as the election agent and counting agent of the
respondent. There is no dispute that said Manas Jena is also
the Chairman of Jaleswar Panchayat Samiti. The election
petitioner has referred to Sections 40 and 41 of the Act and
Rule 12(1) of the Rules to contend that Manas Jena was not
qualified to act as election agent of the respondent. Chapter-VI
of the Handbook for Candidates- 2023 issued by the Election
Commission of India has also been relied upon by the election
petitioner. Mr. Mishra argues that neither Section 40 nor
Page 5 of 31
Section 41 debars a person like Manas Jena to act as election
agent or counting agent. In fact, he was duly appointed as per
Section 40 as election agent and as per Section 47 as counting
agent. The election petitioner has referred to Clause-6.1.2 of
the Handbook for Candidate- 2023 but has not referred to the
latest instructions issued by the Election Commission of India.
Mr. Mishra therefore, argues that the averments made in the
election petition relating to the so called disqualification of
Manas Jena have no legs to stand and as the same do not
disclose a valid cause of action, the election petition is to be
dismissed as a whole.
7. In reply, learned Senior Counsel Mr. Mohapatra
would argue that Section 41 of the Act provides for
disqualification for being an election agent. The Election
Commission of India issued Handbook for Candidate-2023 of
which Clause-6.1.2 specifically mentions that Chairperson of
Panchayat Samiti is disqualified from acting as election agent.
The respondent, though mentioned the name of Manas Jena
in Form No.18 relating to appointment of counting agent,
deliberately did not mention the words ‘Chairman of
Page 6 of 31
Panchayat Samiti’ against his name as the same would have
resulted in rejection of the Form. Being a sitting chairman of
the Panchayat Samiti, Manas Jena is disqualified for which
the petitioner has filed the election petition questioning the
election of the respondent on the grounds set out under
Section 100(1)(d)(iv) of the Act.
8. Having heard learned counsel for the parties, this
Court deems it proper to refer to the relevant statutory
provisions at the outset. Section 100(1)(d)(iv) of the Act reads
as follows:
―100. Grounds for declaring election to be
void.–(1) Subject to the provisions of sub-section (2)
if the High court is of opinion–
xx xx xx
(d) that the result of the election, in so far as it
concerns a returned candidate, has been materially
affected–
xx xx xx
(iv) by any non-compliance with the provisions of the
Constitution or of this Act or of any rules or orders
made under this Act, the High Court shall declare
the election of the returned candidate to be void.‖Sections 40 and 41 being also relevant are quoted
hereinbelow:
“40. Election agents.–A candidate at an election
may appoint in the prescribed manner any one person
other than himself to be his election agent and whenPage 7 of 31
any such appointment is made, notice of the
appointment shall be given in the prescribed manner
to the returning officer.
41. Disqualification for being an election
agent.–Any person who is for the time being
disqualified under the Constitution or under this Act
for being a member of either House of Parliament or
the House or either House of the Legislature of a State
or for voting at elections, shall, so long as the
disqualification subsists, also be disqualified for
being an election agent at any election.‖Rule-12 of the Conduct of Election Rules, 1961
reads as follows;
“12. Appointment of election agent.–(1) Any
appointment of an election agent under section 40
shall be made in Form 8 and the notice of such
appointment shall be given by forwarding the same
in duplicate to the returning officer who shall return
one copy thereof to the election agent after affixing
thereon his seal and signature in token of his
approval of the appointment.
(2) The revocation of the appointment of an election
agent under sub-section (1) of section 42 shall be
made in Form 9.‖
9. According to the election petitioner, Manas Jena is
disqualified as he is the sitting chairperson of Jaleswar
Panchayat Samiti. Be it noted that it has not been disputed
that Manas Jena was in fact the serving chairman of Jaleswar
Panchayat Samiti at the relevant time. Mr. Mohapatra, learned
Senior Counsel has referred to the Handbook for Candidate-
2023 issued by the Election Commission of India. Chapter-VI
Page 8 of 31
deals with appointment of election agents. Clause-6.1.1 states
as follows:
―6.1.1. A candidate may appoint any person to be
his/her election agent. Note that under the law, it is
not necessary or incumbent on a candidate to
appoint an election agent at the time of filing of his
nomination paper. Such appointment may, if the
candidate so desires, be made at any time after the
nomination as a candidate or not at all. Every such
appointment has to be made by a formal
communication by the candidate in Form 8 (Under
Rule 12 of Conduct of Election Rules, 1961)
(Annexure – 7) in duplicate, which has to be
submitted to Returning Officer. The Returning Officer
will retain one copy thereof and return the second
copy to the candidate/election agent after affixing
thereon his seal and signature in token of his
approval of the appointment.‖Clause-6.1.2 reads as follows;
“6.1.2 Important points to note –
Any person who currently stands disqualified under
the Constitution or under the Representation of the
People Act, 1951, for being a member of either
House of Parliament or either House of the
Legislature of a State or for voting at elections is
disqualified for being an election agent so long as
the disqualification subsists.
No person with security cover can be allowed to
surrender the security cover to enable him to become
an election agent.
No sitting Minister either of Union Government or of
a State Government, sitting Member of Parliament,
sitting Member of Legislative Assembly/Legislative
Council, Chief/Head/ Chairperson of Urban Local
Bodies, viz., Mayor of a Corporation or Chairperson
of Municipality/Zila Parishad/Panchayat Union,
Chairperson/Vice-Chairperson of District level/Block
level/ Mandal Parishad, Panchayat samiti etc., shall
be allowed to act as Election agent, Polling Agent, orPage 9 of 31
Counting Agent of any candidate during an election.
(Latest instruction to be referred).
Chairpersons and members of Central PSUs/State
PSUs, Govt. Bodies/Corporation, Cooperatives.
Persons receiving any honorarium or aid from
Government or Persons working on part time in any
Govt. / Govt. Aided Institutions shall not act as
Election agent.
Para Medical/Healthcare staff working in
Govt./Govt. Aided institutions, Fair Price Shop
dealers, Anganwadi Employees.‖
No person in the service of the Government can act
as an Election agent. This is an offence and Under
Section 134-A of the R.P. Act 1951, such appointees
are punishable with imprisonment for a term which
may extend to 3 (three) months, or with fine, or with
both.‖
10. Thus, on a plain reading it would be evident that a
person serving as Chairperson of the Panchayat Samiti is
disqualified to act as election agent. No other statutory
provision is cited in this regard. On the contrary, the
respondent has argued that Handbook for Candidate-2023
does not have any force of law. There is nothing in the
Constitution of India, the Representation of People Act or in
the Handbook for Returning Officer-2023 issued by the
Election Commission of India to suggest that a Chairman of
Panchayat Samiti is disqualified to act as election agent. In
the Handbook for Returning Officer, Clause-5.26 deals with
appointment of election agents and there is nothing therein to
Page 10 of 31
hold that Chairman of Panchayat Samiti is disqualified.
Clause-5.26.4 only provides that Ministers of the Union or
States and MP, MLA, MLCs. and any other person provided
with security cover by the State shall not be appointed as
election agents (and also as polling and counting agents).
11. Mr. Mishra further argues that only the Handbook
for Returning Officer-2023 has sanction of law and not the
Handbook for Candidate-2023 and therefore, not legally
binding. Additionally, Mr. Mishra has argued that even
otherwise, Manas Jena was appointed as election
agent/counting agent in his individual capacity and not as
Chairman of the Panchayat Samiti.
12. From the above discussion, this Court finds that
whether Manas Jena was appointed in his personal capacity
or the same was in his capacity as the Chairman of
Panchayat Samiti and if so, whether he was disqualified to act
as such, are matters to be decided during trial on the basis of
evidence laid and legal provisions examined. If it is to be held
that Manas Jena was disqualified, the same would obviously
Page 11 of 31
have an impact on the candidature of the respondent.
Therefore, it cannot be said that the election petition in so far
as the point under consideration is concerned, does not raise
a valid cause of action so as to be rejected at the threshold
and in such light the pleadings made under Paragrah-9(C) and
9(E) refer to a valid cause of action. The contentions raised by
the respondent in this regard are not acceptable.
13. It is next stated that though the election petitioner
has alleged commission of corrupt practices by the
respondent, the material facts thereof have not been pleaded
and the pleadings have not been supported by affidavit in
Form-25. Particular reference has been made in this context
to the pleadings under paragraphs 9(D) and 9(F). In this
context, Mr. Mishra, learned Senior Counsel for the
respondent would argue that if the pleadings under the above
paragraphs are to be read, it would be clear that the same
relate to the allegations of corrupt practice committed by the
respondent. Mr. Mishra submits that the election petitioner is
duty bound to plead material facts and full particulars of such
corrupt practice that he alleges including as full statement as
Page 12 of 31
possible of the names of the parties alleged to have committed
such corrupt practices and the date and place of commission
of each such corrupt practice. But if the pleadings under the
aforementioned paragraphs are read as a whole, it would be
apparent that the full material facts and particulars have not
been pleaded at all. Besides, the election petition is not
accompanied by the affidavit in Form-25.
14. Per contra, learned Senior Counsel Mr. Mohapatra
would argue that the election petitioner has not alleged any
corrupt practice whatsoever. His entire case is based on
Section 100(1)(d)(iv). Since no corrupt practice has been
alleged, the requirement of specific pleading and filing of
affidavit in Form No.-25 does not arise.
15. Having heard learned counsel on the point it would
useful to first reproduce the concerned paragraphs of the
election petition for better appreciation.
―9(D). That as per the provisions contained in Section 47 of
the Representation of the People Act, 1951 and the Rule
52(1) of the Conduct of Election Rules 1961 the
Respondent has appointed Manas Jena as one of the
Counting Agent for counting of votes of 35-Jaleswar
Legislative Assembly held on 04.05.2024. In the
Page 13 of 31
prescribed Form 18 the name of Manas Jena has been
mentioned as counting agent.
In exercise of the power conferred under Article 324
of the Constitution of India an several judgments passed
by the Hon’ble High Courts and Hon’ble Supreme Court of
India the Election Commission of India has issued the
guidelines and circulars and the same has got the effect of
law. As per the circulars the Chairman of the Panchayat
Samiti will not be allowed to act as Election Agent/Polling
Agent or Counting Agent
Chapter -14 of the Hand Book of candidate 2023
issued by the Election Commission of India elaborately
stated about counting of votes. Clause 14.9 elaborately
deals with qualification of counting agents. The relevant
provisions are contained in clauses 14.9.2 of the Chapter
14 and the same are quoted here under:
Chapter -14 of the Hand Book of candidate 2023
issued by the Election Commission of India elaborately
stated about counting of votes. Clause 14.9 elaborately
deals with qualification of counting agents. The relevant
provisions are contained in clauses 14.9.2 of the Chapter
14 and the same are quoted here under:
14.9.2. However, sitting Minister either of the Union
Government or of the State Government, Member of
Parliament or State Legislature, Mayor of a corporation or
Chairperson of Municipality / Zila Parishad/Panchayat
Union, etc, Chairpersont and Members of Central
PSUs/State PSUs, Govt Bodies/Corporation, Persons
receiving any honorarium from Government or Persons
working on part time in any Govt/Gost Aided Institutions
and Para Medical/Healthcare staff working in Govt Govt
Aided institutions, Fair Price Shop dealers. Anganwadi
Employees shall not be appointed as a counting agents.
During the time of counting the Returning Officer
(Additional Sub-Collector of Balasore) and the staff of
Jaleswar Block were engaged for counting of votes. The
Respondent through his election agent who is also a
counting agent influenced the persons who were engaged
for counting of votes. The Respondent intentionally,
deliberately and consciously appointed Manas Jena the
Chairman of Jaleswar Panchayat Samiti as his counting
agent in order to influence his position, power and
authority over the counting staff for the furtherance of the
prospect of the Respondent election. The certified copy of
Form 18 is annexed herewith as Annexure-3.
Page 14 of 31
The object of the law and to ensure free and fair
election is to keep the public servant aloof from politics and
also protect them from being used by those with influence
or in position or authority and power and to prevent the
machinery of the Govt. from being used to influence of a
particular candidate and success in election. Therefore the
result of the election, in so far as it concerns the
Respondent in so far as it relates to 35-Jaleswar
Assembly Constituency has been materially affect and
aside.
It would be crystal clear that the Respondent and
the Returning Officer are hand in glove to ensure
Respondent’s success in the election and they have made
a mockery of statutory provisions of law, instead of strictly
observing them.
9(F) That the Respondent with a pre-conceived notion
appointed the Chairman of Jaleswar Panchayat Samiti
(Jaleswar Block) as his election agent. The Chairman of
the Block is a public servant holding a high position in the
Block and by utilizing his position, power and authority
was canvasing the voters of 35-Jaleswar Assembly
Constituency to vote in favour of the Respondent who is
the returned candidate. That apart said Manas Jena was
also a counting agent. The staff of Jaleswar Block were
engaged for counting of votes. Since Manas Jena the
Chairman of the Block was the counting agent he has
influenced the staff of the Block to show favour to the
Respondent. It’s another instance, which has vitiated the
counting process and election result in which the
Respondent is declared to have been elected. Both in
electronic media and print media it was declared that the
election petitioner has won the election but after some time
it has been declared that the Respondent has won the
election, such declaration is absolutely wrong as no notice
was given to the election petitioner and Manas Jena
Chairman of Jaleswar Block though prohibited in law to
act as election agent and counting agent of the Respondent
in the general election 2024 in respect of 35-Jaleswar
Assembly Constituency has appointed as election agent
and counting agent and influenced the voters and counting
staff in furtherance of the prospects of the returned
candidate. The Respondent has adopted the unfair means
of undue influence and procuring and obtaining assistance
from the Chairman of the Block for furtherance of his
prospect. Hence the election of 35-Jaleswar Assembly
Page 15 of 31
Constituency be declared as void and the same is liable to
be set aside.‖
[Emphasis added]
16. Whether these allegations would amount to corrupt
practice or not can be determined with reference to Section
123 of the Act, which defines ‘corrupt practice’. From the tone
and tenor of the pleadings quoted above, it is apparent that
according to the Election petitioner, the respondent through
his election agent resorted to unfair practices and undue
influence to further his prospects in the election. The relevant
provision, that is, sub-Section(2) of Section 123 is quoted
hereinbelow:
―123. Corrupt practices.–
xx xx xx
(2) Undue influence, that is to say, any direct or
indirect interference or attempt to interfere on the
part of the candidate or his agent, or of any other
person with the consent of the candidate or his
election agent, with the free exercise of any electoral
right:
Provided that– (a) without prejudice to the
generality of the provisions of this clause any such
person as is referred to therein who–
(i) threatens any candidate or any elector, or any
person in whom a candidate or an elector is
interested, with injury of any kind including
social ostracism and ex-communication or
expulsion from any caste or community; or
(ii) induces or attempts to induce a candidate or
an elector to believe that he, or any person inPage 16 of 31
whom he is interested, will become or will be
rendered an object of divine displeasure or
spiritual censure,shall be deemed to interfere
with the free exercise of the electoral right of
such candidate or elector within the meaning of
this clause;
(b) a declaration of public policy, or a promise of
public action, or the mere exercise of a legal right
without intent to interfere with an electoral right,
shall not be deemed to be interference within the
meaning of this clause.
xx xx xx‖
If the allegations made in the paragraphs in question are
considered as a whole they would certainly be treated as
undue influence within the meaning of Sub-Section (2) of
Section 123 of the Act. The election petitioner has made
allegations but stopped short of designating them as corrupt
practice. It is immaterial if the election petitioner specifically
designates his allegations as corrupt practices or not, for it is
for the Court to test the same on the touch-stone of statutory
provisions quoted above. Having done so, this Court is left
with no doubt that the pleadings under paragraphs 9 (D) and
9(F) are nothing but allegations of corrupt practice. Having
held so, it is to be seen whether the pleadings satisfy the
requirements of Section 83(1) of the Act. For reference, Section
83 is quoted hereinbelow:
Page 17 of 31
“83. Contents of petition.–(1) An election petition– (a)
shall contain a concise statement of the material facts on
which the petitioner relies; (b) shall set forth full
particulars of any corrupt practice that the petitioner
alleges, including as full a statement as possible of the
names of the parties alleged to have committed such
corrupt practice and the date and place of the commission
of each such practice; and (c) shall be signed by the
petitioner and verified in the manner laid down in the
Code of Civil Procedure, 1908 (5 of 1908) for the
verification of pleadings: 6 [Provided that where the
petitioner alleges any corrupt practice, the petition shall
also be accompanied by an affidavit in the prescribed
form in support of the allegation of such corrupt practice
and the particulars thereof.] (2) Any schedule or annexure
to the petition shall also be signed by the petitioner and
verified in the same manner as the petition.‖It is undisputed that the required affidavit in Form-
25 has not been filed. This has been held to be an incurable
defect. Therefore, the statutory provision is clearly violated.
17. Even accepting for the sake of argument that the
pleadings in paragraphs 9(D) and 9(F) cannot be treated as
allegations of corrupt practices then also the same need to be
considered to ascertain as to whether the strict requirement of
pleadings in election cases is satisfied. In this regard law is
well settled that all the material facts have to be specifically
pleaded and that omission to state even a single material fact
would be fatal to the election petitioner. The Supreme Court in
Page 18 of 31
the case of Harishankar Jain v. Sonia Gandhi1 held asfollows:
“Section 83(1)(a) of RPA, 1951 mandates that an
election petition shall contain a concise statement of
the material facts on which the petitioner relies. By
a series of decisions of this Court, it is well settled
that the material facts required to be stated are
those facts which can be considered as materials
supporting the allegations made. In other words,
they must be such facts as would afford a basis for
the allegations made in the petition and would
constitute the cause of action as understood in the
Code of Civil Procedure, 1908. The expression
“cause of action” has been compendiously defined to
mean every fact which it would be necessary for the
plaintiff to prove, if traversed, in order to support his
right to the judgment of court. Omission of a single
material fact leads to an incomplete cause of action
and the statement of claim becomes bad. The
function of the party is to present as full a picture of
the cause of action with such further information in
detail as to make the opposite party understand the
case he will have to meet. (See Samant N.
Balkrishna ν. George Fernandez 18, Jitendra
Bahadur Singh v. Krishna Behari¹9.) Merely quoting
the words of the section like chanting of a mantra
does not amount to stating material facts. Material
facts would include positive statement of facts as
also positive averment of a negative fact, if
necessary. In V.S. Achuthanandan v. P.J. Francis
this Court has held, on a conspectus of a series of
decisions of this Court, that material facts are such
preliminary facts which must be proved at the trial
by a party to establish existence of a cause of
action. Failure to plead “material facts” is fatal to the
election petition and no amendment of the pleadings
is permissible to introduce such material facts after
the time-limit prescribed for filing the election
petition.
1
(2001) 8 SCC 233
Page 19 of 31
It is the duty of the Court to examine the petition
irrespective of any written statement or denial and
reject the petition if it does not disclose the cause of
action. To enable a court to reject a plaint on the
ground that it does not disclose a cause of action, it
should look at the plaint and nothing else. Courts
have always frowned upon vaque pleadings which
leave a wide scope to adduce any evidence. No
amount of evidence can cure basic defect in the
pleadings.”
18. If we look at paragraph-9(D) quoted earlier, the
same strikes as vague as it does not state as to what
assistance was obtained by the respondent from his election
agent for furtherance of the prospects of the election. There
can be no presumption raised in this regard. It is only stated
that because the election agent was the Chairman, the
respondent procured his assistance. Further, it is alleged that
the respondent influenced the persons who were engaged for
counting of votes and the respondent intentionally appointed
Manas Jena as his counting agent to influence his position,
power and authority over the counting staff. How such
influence was exerted, who were the persons engaged for
counting of votes, how many persons were engaged for
counting of votes, what was the manner of influence allegedly
exerted by Manas Jena on them are woefully lacking. Again, it
Page 20 of 31
is alleged that the respondent and returning officer were hand
in glove to ensure respondent’s success in the election. This is
again a vague pleading, inasmuch as what was the
commission or omission by the returning officer to help the
respondent that led the election petitioner to make such an
allegation has not been stated.
19. Coming to paragraph-9(F), it is stated that the
Chairman of the Panchayat Samiti by utilizing his position,
power and authority was canvassing the voters to vote in
favour of the respondent but what was the manner of such
canvassing, how many persons were canvassed etc. have not
been specifically pleaded. It is also stated that Manas Jena
being the Chairman of the Panchayat Samiti influenced the
staff of the Block to show favour to the respondent. Who were
such staff, how many such staff were deputed to duty, what
were their names, who among them were influenced and in
what manner have not been pleaded at all. Again it has been
generally alleged that Manas Jena influenced the voters and
counting staff without stating anything else. It is further
stated that the respondent adopted unfair means of undue
Page 21 of 31
influence by procuring and obtaining assistance of the
Chairman of the Block for furtherance of his prospects but
what constituted such unfair means has not been spelt out at
all.
20. The petitioner has raised another ground – that the
verification appended to the election petition is not in
consonance with Order-VI Rule-15 of CPC read with Section
83(1)(c) of the RP Act. In this regard, Mr. B. Mishra, learned
Senior Counsel would argue that the statutory requirement
requires the affidavit to be placed after verification because the
affidavit is in respect of the facts verified. In the instant case,
the affidavit is placed before the verification, which is not in
consonance with law. In reply, Mr. Mohapatra, learned Senior
Counsel would submit that the requirement being to furnish
both affidavit and verification and the same having been
complied with it is immaterial as to which is to be placed at
what place.
21. Order-VI Rule-15 of CPC reads as follows:
―15. Verification of pleadings.–(1) Save as
otherwise provided by any law for the time being inPage 22 of 31
force, every pleading shall be verified at the foot by
the party or by one of the parties pleading or by
some other person proved to the satisfaction of the
Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to
the numbered paragraphs of the pleading, what he
verifies of his own knowledge and what he verifies
upon information received and believed to be true.
(3) The verification shall be signed by the person
making it and shall state the date on which and the
place at which it was signed.
(4) The person verifying the pleading shall also
furnish an affidavit in support of his pleadings.‖Thus, the statutory requirement is that both
verification and affidavit must accompany the pleadings. Sub-
Rule-4 of Rule-15 simply states that the persons verifying the
pleading shall also furnish an affidavit in support of his
pleadings. Reference to the election petition shows that the
election petitioner has furnished the required affidavit as well
as verification. Since the requirement of the statute as referred
above has been complied with, this Court is of the considered
view that the placement of the affidavit and verification in the
election petition is immaterial. The objection raised in this
regard is therefore, unacceptable.
22. From a conspectus reading of the pleadings under
paragraphs 9(D) and 9(F), this Court, firstly, holds that the
same being allegations of corrupt practices do not satisfy the
Page 23 of 31
requirement of stating the material facts. The Supreme Court
in the case of Senthibalaji V. v. A.P. Geetha & Ors.2,
observed as follows:
13. Section 123 of the RP Act of 1951 defines
corrupt practices. In paragraphs 6 and 7, even bare
particulars of any of the corrupt practices covered
by Section 123 have not been pleaded. What is the
nature of corrupt practice is also not described
except for making a bald allegation that in the
representations mentioned in paragraph 6, the first
respondent has set out electoral misconduct, corrupt
practice, and bribery on the part of the appellant.
Clause (a) of sub-section (1) of Civil Appeals @ SLP
(C) Nos.7219-7220 of 2018 Section 83 mandates
that an election petition must contain a concise
statement of material facts. When the allegation is of
corrupt practice, the basic facts constituting corrupt
practice must be pleaded in order to make
compliance with Clause (a) of sub-section (1)
of Section 83. In this case, such concise facts are not
at all pleaded. Basic facts cannot be pleaded only
by stating that the same find place in the documents
relied upon. The first respondent has merely stated
that the contents of representations may be read as
a part of the petition. This does not satisfy the
requirement of incorporating a concise statement of
material facts. Moreover, when the allegation is of
corrupt practice, the proceedings virtually become
quasi-criminal. Therefore, the elected candidate
must get adequate notice of what is alleged against
him. That is why material facts concerning the
ground of corrupt practice must be pleaded. The
outcome of such a petition is very serious. It can
oust a popularly elected representative of the people.
Therefore, non- compliance with the requirement of
stating material facts must result in the rejection of
the petition at the threshold.
14. At this stage, we may make useful reference to
a well- known decision of this Court of a Bench of
2
Civil Appeal no.-3895-3896 of 2023, DOJ-19/05/2023, Citation-2023 INSC 571
Page 24 of 31
three Hon’ble Judges in the case of V.S.
Achuthanandan4 which is in fact relied upon by the
first respondent. Paragraph 15 of the said
decision reads thus:
Civil Appeals @ SLP (C) Nos.7219-7220 of 2018 ―15.
It would thus appear that the election petition was
rejected mainly on the ground that it did not disclose
the cause of action as according to the learned trial
Judge the allegations regarding corrupt practice
were vague and did not disclose ―material facts and
full particulars‖ of the corrupt practice alleged. It is
evident that the learned trial Judge did not
distinguish between the ―material facts‖ and the
―material particulars‖ of allegations regarding
corrupt practices as defined under Section 123 of
the Act. The law on the point is well settled which
appears to have not been taken note of or
appreciated by the learned trial Judge. After
referring to various pronouncements of this Court
including cases in Balwan Singh v. Lakshmi
Narain [AIR 1960 SC 770 : (1960) 3 SCR 91],
Samant N. Balkrishna v. George Fernandez [(1969)
3 SCC 238] , Virendra Kumar Saklecha v.
Jagjiwan [(1972) 1 SCC 826], Udhav Singh v.
Madhav Rao Scindia [(1977) 1 SCC 511], F.A. Sapa
v. Singora [(1991) 3 SCC 375] and Gajanan
Krishnaji Bapat v. Dattaji Raghobaji Meghe [(1995) 5
SCC 347] and a host of other authorities, this Court
in L.R. Shivaramagowda v. T.M.
Chandrashekar [(1999) 1 SCC 666 : (1998) 6 Scale
361] held that while failure to plead ―material facts‖
is fatal to the election petition and no amendment of
the pleading is permissible to introduce such
material facts after the time-limit prescribed for filing
the election petition, the absence of ―material
particulars‖ can be cured at a later stage by an Civil
Appeals @ SLP (C) Nos.7219-7220 of 2018
appropriate amendment. An election petition was
not liable to be dismissed in limine merely because
full particulars of corrupt practice alleged were not
set out. It is, therefore, evident that material facts
are such primary facts which must be proved at the
trial by a party to establish existence of a cause of
action. Whether in an election petition a particular
fact is a material fact or not, and as such, required
Page 25 of 31
to be pleaded is a question which depends on the
nature of the charge levelled, the ground relied
upon, and in the light of the special circumstances of
the case. In Udhav Singh case [(1977) 1 SCC 511]
the Court held: (SCC p. 523, paras 42-43) ―In short,
all those facts which are essential to clothe the
petitioner with a complete cause of action, are
‗material facts’ which must be pleaded, and failure
to plead even a single material fact amounts to
disobedience of the mandate of Section 83(1)(a).
‗Particulars’, on the other hand, are ‗the details of
the case set up by the party’.
‗Material particulars’ within the contemplation of
clause (b) of Section 83(1) would therefore mean all
the details which are necessary to amplify, refine
and embellish the material facts already pleaded in
the petition in compliance with the requirements of
clause (a). ‗Particulars’ serve the purpose of
finishing touches to the basic contours of a picture
already Civil Appeals @ SLP (C) Nos.7219-7220 of
2018 drawn, to make it full, more detailed and more
informative.‖ (emphasis added)
15. The consensus of judicial opinion is that the
failure to plead material facts concerning alleged
corrupt practice is fatal to the election petition. The
material facts are the primary facts which must be
proved on trial by a party to establish the existence
of a cause of action. In the present case, taking the
averments made in the petition as it is, not a single
material fact is pleaded making out an allegation of
corrupt practice covered by Section 123 of the RP Act
of 1951. All that the first respondent has pleaded is
that he made representations to the Returning
Officer and other authorities complaining about the
corrupt practice on the part of the appellant. What is
the nature of the corrupt practice is not mentioned
even in brief. Therefore, material facts, which
according to the first respondent constitute corrupt
practice were not pleaded in the Election Petition.
xx xx xx
Page 26 of 31
17. This Court held that Section 83 makes it
obligatory for the election petitioner to give requisite
facts, details, and particulars of each corrupt
practice with exactitude. In this case, requisite facts
are completely missing. The allegations are very
vague Civil Appeals @ SLP (C) Nos.7219-7220 of
2018 and general in nature and, therefore, there is
no cause of action to proceed on the ground of
corrupt practice. Therefore, in our view, the
averments made in paragraphs 6 and 7 do not
constitute a cause of action available to proceed on
the ground of corrupt practices contemplated
by Section 123. Paragraph 8 contains the details of
the result of the election. Paragraphs 2 to 4 and 8
are formal in nature and not at all relevant.
18. In paragraph 9, again there are vague and
general allegations that the appellant and 6th
respondent committed electoral misconduct and
corrupt practice. Even this paragraph is bereft of
material facts. Paragraph 9 (a) has been added
which contains only one sentence that acceptance of
nomination of the appellant and 6th respondent is
illegal. Not a single material fact is pleaded in
support of the plea that the acceptance of the
nomination paper is improper.‖
In an earlier case, the three Judge Bench of the
Supreme Court in the case of C.P. John vs. Babu M.
Palissery and Others3 held as follows:
―19. To put it differently, when the election petition
is taken up for consideration, the Court which deals
with such an election petition, should be in a
position to know in exactitude as to what is the
corrupt practice alleged as against the parties
without giving any room for doubt as to the nature of
such allegation, the parties involved, the date, time
and the place, etc. so that the party against whom
such allegation is made is in a position to explain or
defend any such allegation without giving scope for
3
(2014) 10 SCC 547Page 27 of 31
any speculation. In that context, both Sections
83(1)(a) and (1)(b) and the proviso play a very key
role since the election petitioner cannot simply raise
an allegation of corrupt practice and get away with
it, inasmuch as the affidavit to be filed in respect of
corrupt practice should specifically support the facts
pleaded, as well as, the material particulars
furnished. Rule 94-A of the Rules in turn stipulates
that the affidavit should be in the prescribed Form
25 and should be sworn before the Magistrate of the
First Class or a notary or the Commissioner of Oaths
and makes it mandatory for the election petitioner to
comply with the said requirement statutorily. The
format of the affidavit as prescribed in Form 25
elaborates as to the requirement of specifically
mentioning the paragraphs where the statement of
facts are contained and also the other paragraphs
where material particulars relating to such corrupt
practices are alleged. It also mentions as to which of
those statements of facts and material particulars
are based on the personal knowledge of the election
petitioner and such of those statements and
particulars that are made based on the information
gained by the election petitioner.‖[Emphasis added]
Secondly, even if the pleadings are held to be not
constituting corrupt practice then also, the same are vague
and non-specific, and hence, are to be treated as frivolous and
not constituting a valid cause of action. This Court is
therefore, of the view that the pleadings in paragraphs-9(D)
and 9(F) need to be struck out.
23. It is stated that the challan appended to the election
petition has not been made in the manner as prescribed under
Page 28 of 31
Chapter-XXII, Rule-1 of the Rules of the High Court of Orissa,
1948 read with Section 117 of the Act. In this context, Mr.
Mishra would argue that though a sum of Rs.2,000/- was
deposited by the election petitioner, yet the same was through
his lawyer and secondly, the challan does not contain the
signature of the Deputy Registrar of this Court as required. In
reply, Mr. Mohapatra would submit that the Challan contains
the seal of the Deputy Registrar and signature of the cashier,
which implies that the amount was duly paid. Non-availability
of the signature of the Deputy Registrar can be treated as an
official mistake not attributable to the election petitioner.
24. Section 117 of the Act provides that the petitioner
shall deposit in the High Court a sum of Rs.2,000/- as
security for the costs of the petition ‘in accordance with the
Rules of the High Court of Orissa, 1948’. Rule-1 under
Chapter-XXII reads as follows:
―Chapter -XXII Rule-1-Deposit and Repayment
of Money
(1)When money is required to be paid or deposited in
the office of the Court, it shall be accompanied by
triplicate challans which shall be delivered to the
Accountant of the Court. If the challans are in order,
the Accountant shall sign and return the three
challans to the person making the payment orPage 29 of 31
deposit for presentation with the money to the
Cashier of the Court. The Cashier shall thereupon
receive the money, sign each challan and send the
challans to the Accountant. The Accountant shall
then enter the amount in his register of receipts,
issue one copy of the challan to the person making
the payment or deposit as a receipt for the money,
send the second copy to the office to be filled with
the record concerned and keep the third copy
serially in a guard file. When the amount exceeds
Rs.500, the copy of the challan intended as a receipt
for the money shall be signed by the Deputy
Register before it is issued. The Cashier shall remit
the money, he has received to the Treasury with the
Treasury Pass Book after verification by the Deputy
Registrar, or in his absence by the Officer-in-Charge,
on the next day on which the Treasury is open
following the day of payment.‖
25. It is thus, provided that ordinarily, the Accountant
is to accept the deposit but when the amount exceeds
Rs.500/- the copy of the challan intended as a receipt shall be
signed by the Deputy Registrar. Reference to the challan
appended to the election petition shows that the Cashier has
signed accepting the deposit. The seal of the Deputy Registrar
has been endorsed but there is no signature of the Deputy
Registrar. Since the requirement of the Statute is payment of
money, which has already been done largely in compliance of
the Rules of the High Court of Orissa, mere non-signing of the
challan by the Deputy Registrar cannot nullify the same. At
best it can be treated as an act of inadvertence or mistake by
Page 30 of 31
the Deputy Registrar, for which the election petitioner cannot
obviously be blamed. The objection raised in this regard is
therefore, not acceptable.
26. Thus, from a conspectus of the analysis of facts,
law, contentions raised and the discussion made, this Court is
of the view that I.A. No. 132 of 2024 filed with the prayer to
reject the election petition bears no merit. However, I.A. No.
133 of 2024, for the reasons indicated, deserves to be allowed
in the manner narrated earlier.
27. For the foregoing reasons therefore, I.A. No. 132 of
2024 being devoid of merit is rejected. I.A. No. 133 of 2024 is
allowed in part by striking out the pleadings under
Paragraphs 9(D) and 9(F) of the election petition.
……………………………
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack.
The 11th March, 2025/ A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 11-Mar-2025 19:28:28
Page 31 of 31