Orissa High Court
Pritiranjan Gharai … Election vs Pradeep Bal Samant on 17 January, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. No.88 of 2024 & I.A. No.89 of 2024
ELEPET No.6 of 2024
(An applications under Sub-Section 4 of Section 86 of the
Representation of People Act, 1951and Section 5 of the Indian
Limitation Act)
Pritiranjan Gharai ... Election Petitioner
-versus-
Pradeep Bal Samant
... Respondents
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.U.K.Samal,
Advocate with
Mr.M.R.Mohapatra,
Advocate
-versus-
For Respondent
: Mr. P.K.Rath, Sr. Advocate
Mr.P.K.Satapathy,
Advocate(For intervenor).
Mr.R.N.Parija, Advocate
(For intervenor)
Mr. G.K. Agarwal, DEO.
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
17.01.2025.
ELEPT 6 of 2024 Page 1 of 19
Sashikanta Mishra,J. I.A. No.88 of 2024 is an application filed
under sub-section 4 of Section 86 of Representation of
People Act, 1951 by the Petitioner for being impleaded
as Respondent in the main election petition. I.A. No. 89
of 2024 is an application seeking condonation of delay
in filing of the petition for impleadment.
2. The Petitioner, of these applications, was a
candidate for the post of member of legislative
assembly of Odisha of 54 Sukinda Assembly
constituency in the last general election 2024. He was
an independent candidate and was allotted with the
symbol ‘Apple’. The present opposite party No.2-
Pradeep Bal Samant was declared elected in the
election with margin of 9577 votes defeating his
nearest rival, opposite party No.1 namely, Pritiranjan
Gharai of BJD. The present petitioner, Gunamani
Shaw claims he came to know that the opposite party
No.1-Pritiranjan Gharai of BJD has filed the above
election petition before this Court challenging the
election of Pradeep Bal Samant. He therefore,
ELEPT No. 6 of 2024 Page 2 of 19
contacted his lawyer and came to know about the filing
of the said petition. It is stated that though he was an
independent candidate in the 54 Sukinda Assembly
constituency he has not been impleaded as a
respondent in the election petition filed by Pritiranjan
Gharai and that he seriously desires to be impleaded
as a respondent in the petition and to file written
statement. It is further stated that as per sub-section 4
of Section 86 of the Act, it is permissible for the
petitioner to join in the aforesaid election petition as a
respondent as he has not been impleaded as a
respondent by the election petitioner.
3. In the application seeking condonation of delay
it is stated that the petitioner came to know about the
aforesaid proceeding on 15th October 2024 and further
it transpired from the print and electronic media that
the election petition was posted on 8.11.2024. Earlier,
there was no occasion on his part to know about the
election proceeding and only after publication in the
local newspaper, he came to know about the same. As
such, he filed this application seeking intervention in
ELEPT 6 of 2024 Page 3 of 19
the election petition and in the process, there has been
delay of 38 days. On such grounds, it is prayed that
the delay be condoned.
4. Written objection has been filed by the election
petitioner Pritiranjan Gharai (Respondent No.1 in the
present Interlocutory Application). It is stated that the
election petitioner has not made any allegation against
Gunamani Shaw, the petitioner of the I.A., and
therefore, he is not necessary to be impleaded as a
party. It is further stated that the election petition was
presented on 15.7.2024 before this Court and on
29.7. 2024, this Court admitted the same and issued
notice to the sole respondent. After receiving
summons the respondent appeared on 17.9.2024. The
present I.A. has been filed on 8.11.2024. Referring to
the provision under sub-section 4 of Section 86 of the
Act, it is stated that an application for being
impleaded as a respondent can be filed within 14 days
from the date of commencement of trial and that trial
of the petition shall be deemed to commence on the
date fixed for the respondent to appear before the High
ELEPT No. 6 of 2024 Page 4 of 19
Court and answer the claim made in the petition.
Admittedly, the sole respondent Pradeep Bal Samant
appeared before this Court on 17.9.2024, which is the
date fixed for commencement of trial. The present
petition being filed on 8.11.2024 is therefore barred by
time and therefore, liable to be rejected with cost. It is
further stated that the provision of Section 5 the
Limitation Act, 1963 is not applicable to election
petitions. On such grounds, it is stated that the
petition be rejected.
5. Heard Mr. P.K.Satapathy, learned counsel for
the Petitioner and Mr. U.K.Samal, learned counsel
appearing for Respondent No.1-election petitioner.
6. Mr. Satapathy would argue that admittedly there
is delay of about 38 days in filing the present
application. He submits that the requirement of filing
the petition for impleadment within 14 days from the
date of commencement of trial as per Section 86(4) is
directory and not mandatory. In this context, Mr.
Satapathy argues that the Representation of People Act
provides different periods in four instances such as,
ELEPT 6 of 2024 Page 5 of 19
Section 81 which prescribes 45 days’ time for filing of
election petition, Order 8 Rule 1 of C.P.C. for filing of
written statement, Section 97 which provides for 14
days’ time for filing of recrimination petition and
Section 86 (4), which also provides 14 days’ time for
filing of petition for impleadment.
It is argued by Mr. Satapathy that the period of
45 days provided in Section 81 for filing of election
petition is followed by penal consequences for its
breach under Section 86(1) of the Act to the effect that
an election petition which does not comply with the
provision of Section 81 shall be dismissed. In Order 8
Rule 1 of C.P.C. which is followed in case of election
cases, there is no penal provision or any consequential
bar expressly provided for filing of written statement
after 90 days. In Section 97 a penal consequence is
provided by using the word ‘unless’ in the proviso
which means that if the recrimination petition is not
filed within 14 days from the date of commencement of
trial, the petitioner would not be entitled to give
evidence. Mr. Satpathy therefore, argues that wherever
ELEPT No. 6 of 2024 Page 6 of 19
the legislature intended to provide for a mandatory
time period for filing of petitions it has provided so
specifically, but in sub-section 4 of Section 86, there is
no such provision. As such, according to Mr.
Satapathy, it cannot be said that the requirement of
filing the petition for impleadment as per Section 86(4)
of the R.P. Act being 14 days, is not mandatory but
only directory. He further submits that the trial in the
election petition under the Act is procedural in nature
and the principles of Code of Civil Procedure is
required to be followed for guidance. As such, the
commencement of trial referred to in the Explanation
to the provision is not to put a bar for filing of the
application but only to explain the initial date for
counting the period of 14 days.
7. On merits, it is stated that the Petitioner
seriously desires to be a party to the proceeding and
came to know about the proceeding from the media. It
is further stated that the written statement has been
filed only on 2.1.2025 and issues have not been
framed, so actual trial has not commenced. As such, if
ELEPT 6 of 2024 Page 7 of 19
the petitioner is allowed to join in the proceeding no
prejudice would be caused to the election petitioner.
Finally it is submitted that the delay being neither
intentional nor deliberate, the same should be
condoned and the petitioner should be permitted to
avail his statutory right of joining in the election
proceeding. To buttress his contentions, Mr. Satapathy
has relied upon a judgment of the Supreme Court in
the case of Kailash vs Nanhku and others;1.
8. Mr. U.K.Samal, learned counsel for the election
petitioner, on the other hand, would argue that the
relevant provision is clear and unambiguous and does
not admit of any other interpretation than what is
discernible from bare reading thereof. Mr. Samal
further refers to Section 2 of sub-section 4 of the
Conduct of Election Rules, 1961 to submit that except
for the reference to the General Clauses Act therein,
there is no other provision for extension of the period
provided for filing of petition. Further, the Limitation
Act does not apply. Mr. Samal further argues that even
1
AIR 2005 SC 2441
ELEPT No. 6 of 2024 Page 8 of 19
otherwise the petitioner has not stated in clear terms
as to why his presence is required in the election
proceeding. Simply by stating that he seriously desires
to be impleaded as a party does not satisfy the
requirement of law. In support of his arguments Mr.
Samal has relied upon the judgments of the Supreme
Court rendered in the case of K. Venkateswara Rao
and another vs. Bekkam Narasimha Reddi and
others;2, Jyoti Basu and others vs. Debi Ghosal
and others;3, and of the Jammu and Kashmir High
Court in the case of Hari Om Singh vs. Dr. Karan
Singh.4
9. Having heard learned counsel for the parties at
length and upon going through the materials on
record, this Court finds that admittedly, the petition
for impleadment was filed beyond the period of 14 days
prescribed under sub-Section 4 of Section 86 of the
Act. It would be profitable to refer to the provision at
the outset at this stage, which is quoted herein below;
2
AIR 1969 SC 872
3
AIR 1982 SC 983
4
AIR 1980J & K 57
ELEPT 6 of 2024 Page 9 of 19
“86(4). Any candidate not already a
respondent shall, upon application made
by him to the High Court within fourteen
days from the date of commencement of
the trial and subject to any order as to
security for costs which may be made by
the High Court, be entitled to be joined as
a respondent”.
10. From a bare reading of the provision quoted
above, it is clear that the statute has prescribed a
definite period, that is, 14 days for filing of a petition for
being impleaded as a party to the election proceeding.
The question is, whether said time period is mandatory
or directory in nature. In this regard it would also be
profitable to refer to the Conduct of Election Rules, 1961
of which Section-2 reads as follows;
“Interpretation- (1) In these rules, unless the context
otherwise requires,
(a) “Act” means the Representation of the People Act,
1951;
(b) “ballot box” includes any box, bag or other receptacle
used for the insertion of ballot paper by voters;
[(ba) “counterfoil” means the counterfoil attached to a
ballot paper printed under the provisions of these
rules;]
(c) “election by assembly members” means an election
to the Council Sates by the elected members of the
Legislative Assembly of a State by the members of the
electoral college of a Union territory, or an election to
the Legislative Council of a State by the members of
the Legislative Assembly of at State;
(d) “elector”, in relation to an election by assembly
members, means any person entitled to vote at that
election;
ELEPT No. 6 of 2024 Page 10 of 19
(e) “electoral roll”, in relation to an election by
assembly members, means the list maintained under
Section 152 by the returning officer for that election,
(f)”electoral roll number” of a person means-
(i) the serial number of the entry in the electoral roll in
respect of that person:
(ii) the serial number of the part of the electoral roll in
which such entry occurs; and
(iii) the name of the constituency to which the electoral
roll relates;
(g) “Form” means a Form appended to these rules and
in respect of any election in a State, includes a
translation thereof in any of the languages used for
official purposes of the State;
(gg) marked copy of the electoral roll” means the copy
of electoral roll set apart for the purpose of marking
the names of electors to whom ballot papers are
issued at an election);
(h) “polling station”, in relation to an election by
assembly members means the poll(1) “presiding officer” includes-
(1) any polling officer performing any of the functions
of a presiding officer under sub-section (2) or sub-
section (3) of section 26; and
(ii) any returning officer while presiding over an
election under sub-section (2) of Section 29;
(iii) “returning officer” includes any Assistant returning
officer performing any function he is authorized to
perform under sub-section section (2) of Section 22;
(k) “section” means a section of the Act.
(2) For the purposes s of the Act or these rules, a
person who is unable to write his name shall, unless
otherwise expressly provided in these rules, be
deemed to have signed an instrument or other paper
if-
(a) he has placed a mark on such instrument or other
paper in presence of the returning officer or the
presiding officer or such other officer as may be
specified in this behalf by the Election Commission,
and
(b) such officer on being satisfied as to his identity
has attested the mark as being the mark of that
person.
(3) Any requirement under these rules that a
notification, order, declaration, notice or list issued or
made by any authority shall be published the OfficialELEPT 6 of 2024 Page 11 of 19
Gazette shall, unless otherwise expressly provided in
these rules be construed as a requirement that it shall
be published in the Gazette of India, if it relates to an
election to, or membership of, either House of
Parliament or an electoral college, and in the Official
Gazette of the State, if it relates to election to, or
membership of, the House or either House of the State
Legislature.
(4) The General Clauses Act, 1897 (10 of 1897) shall
apply for the interpretation of these rules as it applies
for the interpretation of an Act of Parliament.”
As has been argued by Mr. Samal, learned counsel
for the election petitioner, there is no other provision
either in the Representation of People Act or in the
conduct of Election Rules, 1961 providing for extension
of the time period prescribed for filing of different
petitions under the Act.
11. It has been argued that the provision is not
mandatory but directory in nature. Whether a statute is
mandatory or directory depends upon the intent of the
legislature and not upon the language in which the
intent is clothed. The meaning and intention of the
legislature must govern and these are to be asserted not
only from the provision but also by considering its
nature, its design and the consequences which would
follow from construing it one way or the other. The above
ELEPT No. 6 of 2024 Page 12 of 19
was observed by the Supreme Court in the case of State
of U.P. vs. M.L.Srivastava5. It has also been held that
when consequence of nullification on failure to comply
with a prescribed requirement is provided by the statute
itself, there can be no manner of doubt that such
statutory requirement must be interpreted as mandatory.
This was held by the Supreme Court in the case of
Rajsekhar Gogoi vs. State of Assam and others6.
However, it has also been held that in statutes conferring
a power to be exercised on certain conditions, the
conditions prescribed are normally held to be mandatory
and the power inconsistent in those conditions is
impliedly negative. This was held by the Supreme Court
in the case of Haridwar Singh vs. Bagun Sumbrui and
others7. It has also been held that if an affirmative
statute which is introduction of a new law directs a
things to be done in a certain way, that thing shall not,
even if there be no negative words, be done in any other
way. However, when it comes to the statutes conferring
5
AIR 1957 SC 912
6
AIR 2001 SC 2313
7
AIR1972 SC 1242
ELEPT 6 of 2024 Page 13 of 19
private rights and benefits, which is the case at hand, it
has been held that when certain requirements are
prescribed by a statute as preliminary to the acquisition
of a right conferred by the statute, such prescriptions are
mandatory for acquisition of the right or benefit.
Reference in this regard may be had to the judgment of
the Supreme Court in the case of Parekh Wadilal
Jivanbhai vs. CIT,M.P., Nagpur8. In the case of
Shrinivasa Reddy and others vs The State of Mysore
and others9, the Supreme Court held that similarly if a
person wants a stage carriage permit, it is necessary for
him to make an application in the manner and within
the time as prescribed under the Motor Vehicles Act.
12. So, from a conjoint reading of all the above
decisions vis-a-vis sub-section 4 of Section 86 and
particularly taking note of the use of the word ‘shall’
therein, there can be no manner of doubt that even if no
consequences have been provided for not acting within
the stipulated period, the provision has to be treated as
mandatory for the simple reason that it seeks to confer a
8
AIR 1967 SC 448
9
AIR 1960 SC 350
ELEPT No. 6 of 2024 Page 14 of 19
particular benefit on a candidate by permitting him to
join in the election petition as a party. Since a positive
benefit is intended to be conferred by the statute then
the requirement of the statute cannot be done away with.
13. While discussing the law in general with regard to
interpretation of statutes as to whether the provision is
directory or mandatory in nature it would also be
profitable to refer to the judgments of the Supreme Court
on the Representation of People Act as cited by Mr.
Samal. In the case of Venkataswara Rao (supra), it was
held that with regard to the addition of parties which is
possible in the case of a suit under the provisions of
Order 1 Rule 10 subject to the added parties’ right to
contend that the suit as against him was barred by
limitation when he was impleaded, no addition of parties
is possible under the election petition, except under the
provision of sub-Section 4 of Section 86. It was also held
that an election petition stands on a different footing.
The Indian Limitation Act does not apply to the
proceedings under the Act. The Supreme Court observed
in the following words;
ELEPT 6 of 2024 Page 15 of 19
“In our opinion however, the Limitation
Act cannot apply to proceedings like an
election petition inasmuch as the
Representation of the Peoples Act is a
complete and self contained code which
does not admit of the introduction of the
principles or the provisions of law
contained in the Indian Limitation Act.”
Same view was taken in Jyoti Basu (supra)
that the Representation of People Act has been held to
be a complete and self-contained code within which
must be found any rights claimed in relation to an
election or an election dispute.
In almost a similar case, the Jammu and
Kashmir High Court interpreting the provision under
a Sub-Section-4 of Section 86 held as follows;
“A bare reading of the Section shows that
a candidate may be joined as a
respondent, if he files an application in the
High Court within 14 days from the date of
commencement of the trial. The
explanation to the Section lays down that
the trial of an election petition shall be
deemed to commence on the date fixed for
the respondent to appear before the High
Court and answer the claim or claims
made in the petition. Thus, two conditions
which must be satisfied are, (1) that the
person seeking to be impleaded must have
been a candidate and, (2) he must file the
application within 14 days of the
commencement of the trial of the election
petition. The first condition in this case isELEPT No. 6 of 2024 Page 16 of 19
satisfied. However, the second condition is
not satisfied. The present petition was
filed by Shri Sat Paul on 23rd of April,
1980 in the court. After the election petition
was registered and summonses were
issued to the respondent, as required by
law, the respondent appeared in court
through M/s. O.N. Tikku and S.P. Gupta
on 4th of April, 1980. Time was given to
the respondents to file the written
statement within four weeks. According to
Mr. L.K. Sharma and which stand is
supported by M/s. O.N. Tikku, S.P. Gupta
and H.L. Bhagotra, the time of 14 days
has to be reckoned from the date when the
written statement is filed and not from the
date of appearance of the returned
candidate in court. I am afraid, I cannot
agree. A copy of the summons which was
served on the returned candidate stated
inter alia:
You are hereby summoned to appear in
this court in person or by duly authorised
attorney or agent to answer all material
questions relating to the petition, enclosed”
8. The explanation to Sub-Sec. (4) (supra)
shows that the trial of an election petition
commences on the date fixed for the
respondent to appear in the High Court
and answer the claim. The legislature did
not leave it to the interpretation of the
courts as to when the trial of an election
petition would be deemed to commence. It
expressly laid dawn that it would
commence “on the date fixed for the
respondent to appear before the High
Court and answer the claims.” That date in
this case undoubtedly was 4th of April,
1980. The present application having been
filed on 23rd of April was clearly beyond
the time of 14 days period prescribed by
Sub-Section (4) of Section 86. The
argument that the time should start from
the filing of the written statement is wholly
fallacious. Can it be contemplated that the
“commencement of the trial” can be
delayed at the whims of the returned
ELEPT 6 of 2024 Page 17 of 19
candidate who has once appeared in the
High Court to answer the claims made in
the petition? The answer must be an
emphatic ‘no’. A returned candidate may
delay the filing of the written statement
and no premium can be put on such delay
for the purpose of Section 86(4) of the Act.
Thus, the application is beyond the
prescribed period and not maintainable.”
14. Thus, from a conspectus of the analysis of the
statutory provisions and the settled provision of law
narrated herein before, this Court finds that
notwithstanding the fact that no specific
consequences have been prescribed for not acting
within the time period prescribed under the provision
under sub-section 4 of Section 86, the provision itself
is to be treated as mandatory in nature inasmuch as
it seeks to confer a positive benefit on a candidate by
permitting him to join the election petition as a party.
In such event, he can only act within the four corners
of the provision. That apart, it is also equally well
settled that when a statute requires a thing to be
done in a particular manner, the same has to be done
in that manner or not all. Therefore, in absence of any
provision conferring power on the Court to enlarge the
ELEPT No. 6 of 2024 Page 18 of 19
time period prescribed in the statute, the Court is
obviously denuded of its powers to do so. It would be
acting beyond the statutory provisions, which is
obviously not permissible.
15. For the foregoing reasons therefore, this Court
holds that the application seeking condonation of
delay (I.A. No.89/2024) is not maintainable in the eye
of law and is therefore, dismissed. Consequently, I.A.
No.88/2024 filed by the Petitioner for being
impleaded as party to the election petition being filed
beyond the stipulated period is also not maintainable
in the eye of law for which the same stands rejected.
…………………………….
Sashikanta Mishra,
Judge
Ashok Kumar Behera
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR BEHERA
Designation: A.D.R.-cum-Addl. Principal Secretary
Reason: Authentication
Location: High Court of Orissa Cuttack
Date: 17-Jan-2025 12:40:08
ELEPT 6 of 2024 Page 19 of 19