Orissa High Court
(An Application Under Sections 8 vs Dipali Das ... Opposite Party on 21 March, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. No.111 of 2024
(ELPET No.07 of 2024)
(An application under Sections 81,82,83,86 and 87 of the
Representation of People Act, 1951 read with Order VI Rule
16, Order-VII Rule 11 read with Order VII Rule 14 of C.P.C.,
1908)
Tankadhar Tripathy ... Petitioner
(Respondent in the
Election Petition)
-versus-
Dipali Das ... Opposite Party
(Petitioner in
the Election Petition)
Advocates appeared in the case through hybrid mode:
For Petitioner : Mr.G.K.Agarwal,
Sr. Advocate
Ms. S.Srivastava,
Advocate.
-versus-
For Opposite Party
: Mr. Bidyadhar Mishra
Sr.Advocate.
Mr. T.K.Biswal,
Advocate
---------------------------------------------------------------------------
CORAM:
JUSTICE SASHIKANTA MISHRA
ELEPT 07 of 2024 Page 1 of 38
ORDER
21.03.2025.
Sashikanta Mishra,J. This application has been filed by the sole
Respondent of the above Election Petition under Order
VI Rule 16 and Order VII Rule 11 read with Order VII
Rule 14 of the C.P.C. and Sections 81, 82, 83, 86 and
87 of the Representation of People Act, 1951 with
prayer to strike out the pleadings under Paragraphs-5
to 14 and 14-A to 14-L of the Election Petition and to
reject/dismiss the Election Petition in its entirety at
the very threshold under Section 86 of the Act. It is
stated that the pleadings in the aforementioned
paragraphs sought to be struck out are wholly
unnecessary, frivolous, scandalous, etc. and an
attempt to abuse the process of this Court. Further,
the Election Petition being bereft of material facts and
particulars and not disclosing a complete cause of
action nor constituting any triable issues needs to be
dismissed at the threshold.
2. The Election Petition has been filed by the
Election Petitioner questioning the election of the
sole Respondent from 7-Jharsuguda Assembly
Constituency to Odisha State Legislative Assembly in
the General Elections, 2024, seeking the prayers as
enumerated under Paragraphs-A to N of the prayer
portion of the petition. Pursuant to summons issued
by this Court upon admission of the Election Petition,
the sole Respondent entered appearance and filed his
written statement. In addition, he has filed the present
I.A. to which a written objection has been filed by the
Election Petitioner. The grounds set forth in the I.A.
along with contentions raised by the parties shall be
discussed in detail hereinafter.
3. For convenience, the parties are referred to as
per their original status in the Election Petition.
4. Heard Mr. G.K.Agarwal, learned Senior counsel
with Ms. S. Srivastava for the sole
Respondent/Petitioner in the I.A. and Mr. Bidyadhar
Mishra, learned Senior counsel with Mr. T.K.Biswal,
learned counsel for the Election Petitioner/Opp.Party
in the I.A.
5. At the outset, Mr. Agarwal, learned Senior
counsel, would argue that the copy of the Election
Petition served on the sole Respondent through Court
process is not the exact and true copy of the original
Election Petition filed in Court. Mr. Agarwal draws
attention of the Court to the Election Petition and
submits that the original Election Petition contains
seal and signature of the Oath Commissioner at the
bottom of the affidavit at page 123 but the signatures
of the Oath Commissioner are not available in pages 1
to 122 as required under Chapter IV Rule 16 of the
Orissa High Court Rules, 1948 and therefore, cannot
be said to be a true copy as per Section 81(3) of the
Act.
Per contra, Mr.B.Mishra, learned Senior counsel,
would submit that the Election Petition was presented
upon the Election Petitioner taking oath before the
Oath Commissioner. The Oath Commissioner has
endorsed his signature at the bottom of the affidavit,
which is substantial compliance of the statutory
requirement. The sole Respondent has not established
as to how he was prejudiced because of non-
availability of signatures of the Oath Commissioner
from pages 1 to 122. The Election Petitioner has
attested each page of the Election Petition by putting
her signature with the endorsement 'attested to be true
copy of the original Election Petition'.
6. It is true that the Election Petition contains
signature of the Oath Commissioner of this Court only
at page 123 under the affidavit sworn by the Election
Petitioner. Assuming that non-signing of each page by
the Oath Commissioner is a defect, the same, in the
considered view of this Court, cannot be treated as
fatal to the Election Petition as a whole, more so, when
it has not been shown as to how the Respondent was
prejudiced by it. Further, it has not been demonstrated
that the copy of the petition served on the Respondent
was different from the one filed before this Court. Even
otherwise, it is the settled position of law that 'true
copy of Election Petition' within the meaning of Section
81(3) does not mean absolutely exact copy, but it is
one which no reasonable person can misunderstand
as not being the same as the original. Reference can
be had in this regard to the judgment of the
Constitution Bench of the Supreme Court in the case
of T.M.Jacob v. C. Poulose and others;1. The
Supreme Court referred to the doctrine of substantial
compliance emanating from violation of Section 81 of
the Act and the doctrine of curability emanating from
Section 83 of the Act. It was held that it is not every
minor variation in form but only a vital defect in
substance which can lead to a finding of non-
compliance of the provisions of Section 81(3) of the Act
with the consequence enumerated under Section 86(1).
The ground raised by Mr. Agarwal is therefore, not
acceptable.
7. It is stated that allegations have been made
against another candidate namely, Amita Biswal of
(1999) 4 SCC 274
Indian National Congress to the effect that she had
concealed material information in her affidavit in
Form 26. Further, the affidavit in Form 26 of said
Amita Biswal was not presented by her before the
Returning Officer or by any of her proposers, but by
one Manish Kumar Bajpayee, which violates the
mandate of law. However, said Amita Biswal has not
been made party to the Election Petition and therefore,
in her absence, the Election Petitioner cannot question
her nomination nor the same can be adjudicated.
Per contra, Mr.B.Mishra, learned Senior
counsel, would argue that Amita Biswal is not a
necessary party as prescribed under Section 82 of the
Act since the prayer of the Election Petitioner is limited
to declare the election as void and to set aside the
same without containing any allegation of corrupt
practice against Amita Biswal.
This point shall be disclosed in detail while
discussing the pleadings under Paragraph-14.
8. Having dealt with these preliminary objections to
the Election Petition as per the I.A., this Court would
now proceed to deal with the grounds raised by the
Respondent relating to the individual paragraphs of the
Election Petition.
9. Paragraphs 1 to 4 of the Election Petition are
formal in nature. In so far as Paragraph-5 is
concerned, according to the sole respondent, the same
lacks in pleading of material facts and particulars
besides being false, frivolous and vexatious. In this
context Mr.Agarwal, learned Senior counsel would
argue that there is no pleading that on the date of
scrutiny, the Election Petitioner or her representative
Ram Chandra Pradhan was present in the office of the
Returning Officer or that they had raised objections in
writing during scrutiny of nominations. Who others
were present and what was the process of scrutiny
adopted, etc. have also not been pleaded.
Mr. Mishra, on the other hand, would argue that
the Election Petitioner is not required to plead all such
facts as raised by the sole Respondent as it is her
contention that despite objections being raised, the
nomination of the respondent was accepted. The basic
facts having been pleaded, the Election Petitioner
would endeavour to prove the same by adducing
evidence at the time of trial.
It is further stated by the sole respondent that
objections were purportedly raised with regard to the
nomination of the Respondent on the ground of non-
disclosure and his criminal antecedent/criminal
cases as well assets/liabilities of self, spouse and
dependents. The Election Petitioner has not pleaded
the number of criminal cases, name of the Police
Station and the Court where such cases are pending.
The source of information has also not been disclosed.
Rather, no objection was ever raised by the Election
Petitioner as claimed. Mr. Agarwal argues that unless,
these vital facts are pleaded, the pleading cannot
constitute a valid cause of action.
Per contra, Mr. Mishra would submit that
according to the Election Petitioner, the respondent did
not disclose some criminal cases pending against him
by mentioning the Police Case Number though the
Court case number was not given. It cannot be said
that the Respondent was not aware of the criminal
cases, the same being instituted against him.
According to the Election Petitioner therefore, it was
pleaded that this non-disclosure has the effect of
misleading the voters.
The pleadings in Paragraph-5 appear to be a
general summation of the allegations which are
more fully described in the individual sub-paragraph
of Paragraph-14. Hence, this Court deems it proper to
discuss and consider the same at the appropriate place
to avoid repetition.
10. It is stated that Paragraph-6 simply states the
name of the contesting candidates, their symbols and
party affiliation which do not give rise to a cause of
action.
It is stated in opposition that these are facts
necessary to introduce the grounds urged
subsequently to challenge the Election.
After perusing the pleading in Paragraph-6 of the
Election Petition, this Court is of the view that the
same is formal in nature and though it does not by
itself constitute a cause of action yet, the same cannot
be read in isolation, but along with the other
paragraphs. In fact, the Election Petition is to be read
as a whole.
11. It is stated under Paragraph-7 that the Election
Petitioner has failed to plead the details of the Polling
Agents of the Election Petitioner of the 43 numbers of
Polling Stations and whether they were present
throughout till closure of the Poll, whether there were
any discrepancies in their entry made in respect of
total number of votes polled and counted etc. The
Election Petitioner has also failed to plead the details of
the Presiding Officer and the Polling Officers who were
present in the 43 Polling Stations. The Election
Petitioner has also not stated whether Form 17(C)
Part-I was filled up or not and whether the Polling
Agents of the Election Petitioner signed thereon and
whether they raised objection for non-supply of the
Form. The Election Petitioner has also not pleaded how
non-supply of the Form 17 (C) Part-1 materially
affected the result of the election. The allegations
against the Officers have been made without pleading
that they had acted at the behest of the Respondent.
Per contra, it is stated that the Election
Petitioner has referred to the specific polling stations
by mentioning the numbers of each with the allegation
that Presiding Officers of the said stations, despite
being duty bound under law to supply copy of the
Form-17(C), Part-1 duly filled in under their signature
to the respective Polling Agents, did not do so.
12. It is seen that the above pleadings in Paragraph-
7 contain allegations that have also been stated in
detail under Paragraph-14(I). Hence, the contentions
raised shall be dealt with at the appropriate place.
13. According to the sole Respondent, the Election
Petitioner has failed to plead under Paragraph-8, the
details of her Polling Agents and of the other contesting
candidates, who were present in the 14 Polling
Stations, the details of the Polling Officer who did not
comply with the statutory requirements. Further, what
are the defects which are curable in nature, have not
been stated. The material particulars of the facts
stated in the table have not been stated.
It has been stated in opposition that the
Election Petitioner has pointed out the incurable
defects in Col.6 of Form 17(C) Part-1 committed by the
Presiding Officer of the 14 Polling Stations with their
numbers and the total number of votes recorded in the
EVM in support of her allegations.
14. It is observed that the pleadings in Paragraph-8
contain allegations that have also been stated in detail
under Paragraph-14(J). Hence, the contentions raised
shall be dealt with at the appropriate place.
15. According to the sole respondent, the Election
Petitioner in Paragraph-9 has not pleaded the details of
the Counting Agent, who raised objection during
counting of votes and who were the other officers and
Counting Agents present at that time. She has also not
pleaded why she or her Counting Agent did not bring
the fact to the knowledge of the District Election Officer
and Election Observer, who were present, or the Chief
Electoral Officer and Election Commission of India.
She has not stated as to on what grounds the postal
ballots were rejected.
It has been stated in opposition that the
Election Petitioner has given all the basic material facts
which are to be substantiated through evidence during
trial. In this context, Mr. B. Mishra argues that as per
legal procedure, the postal ballots are to be counted
first but in the instant case, the postal ballots were
counted after counting of votes recorded in the control
unit of EVMs. Out of total 1710 postal ballots, 179
were rejected and the Election Petitioner expects that
100 of them would have been counted in her favour.
There was disparity in the control unit. The
requirement of law in case of disparity was not
followed.
16. The pleading in Paragraph-9 contain allegations
that have also been stated in detail under Paragraph-
14(K). Hence, the contentions raised shall be dealt with
at the appropriate place.
17. In so far as Paragraphs-10 and 11 are
concerned, the same are formal in nature and are
therefore, required to be read along with the Election
Petition as a whole.
18. Paragraph-12 contains the relief sought for.
Paragraph-13 is also a formal paragraph giving
information about the Petitioner's deceased father and
the total votes received by her and the sole
Respondent. This paragraph also has to be read along
with the other paragraphs of the Election Petition.
19. The sole respondent has contended that
Paragraph-14 and its sub-paragraphs in the Election
Petition deserve to be struck out. The rival contentions
raised in this regard and the analysis of this Court is
given herein below paragraph-wise.
19.1. It is stated that in paragraph-14 (A) and (B), the
Election Petitioner has alleged that non-disclosure by
the Respondent of criminal antecedents and pending
criminal cases in Form 26 affidavit are wholly
unfounded and bereft of material facts and particulars
as she has failed to plead the details of the criminal
cases, name of Police Station, name of Court etc. as
also the source of knowledge of the Election Petitioner.
There is also no pleading that the voters were misled
by such alleged suppression. On the contrary, the sole
Respondent has correctly disclosed all the penal
provisions under which the F.I.Rs. had been lodged
against him in his Form 26 affidavit but the Election
Petitioner has tried to create confusion.
Mr. Agarwal would submit that in such view of
the matter, the pleadings under Paragraph-14 (A) and
(B) have to be treated as unnecessary and vexatious.
Besides, Mr. Agarwal would also submit that as per the
settled position of law, the allegation of suppression of
criminal antecedents in the affidavit in Form 26
amounts to corrupt practice. The Election Petitioner
having made such allegations has not supported the
same by filing affidavit in Form 25 as per Section 83(1)
of the R.P. Act. The Election Petition therefore,
deserves to be dismissed on such score alone.
19.2. It is stated in opposition that according to the
Election Petitioner, the sole Respondent in his affidavit
in Form 26 under Col.5(ii), Clauses A to D has
suppressed material information and furnished false
and misleading information in respect of 10 criminal
cases pending against him. Further, neither the sole
Respondent nor his political party has published in
widely circulated newspapers of the locality disclosing
criminal antecedents of the sole Respondent, which
violates the dictum of the Supreme Court as well as
the directions of the Election Commission of India.
Moreover, under Paragraph-14(B), the Election
Petitioner has specifically referred to four criminal
cases pending against the Respondent involving
serious and heinous offences, which he did not
disclose in his Form 26 affidavit.
Mr. Mishra would submit that the fact that the
sole Respondent denies the allegation as false implies
that the same is a triable issue. He further submits
that the allegations will not amount to corrupt practice
within the meaning of Section 123 of the R.P.Act. Even
assuming that the same amounts to corrupt practice
then also as per the settled position of law, the defect
is curable in nature for which the Election Petition is
not liable to be dismissed at the threshold.
19.3. This Court has perused the pleadings under
Paragraph-14(A) and (B) carefully. In Paragraph-14-A,
it is generally stated that the sole Respondent
deliberately suppressed his criminal antecedents due to
which the voters were misled. The details of the cases,
four in number, have been specially mentioned under
Paragraph-14(B). Whether the allegation that the
Respondent deliberately suppressed the pendency of
the said four cases amounts to corrupt practice or not
can be answered by referring to the judgment of the
Supreme Court in the case of Krishnamoorthy v. Sivakumar,
(2015)2 wherein it was held as follows;
"94. In view of the above, we would like to sum up our
conclusions:
94.1. Disclosure of criminal antecedents of a candidate,
especially, pertaining to heinous or serious offence or
offences relating to corruption or moral turpitude at the
time of filing of nomination paper as mandated by law is a
categorical imperative.
94.2. When there is non-disclosure of the offences
pertaining to the areas mentioned in the preceding clause,
it creates an impediment in the free exercise of electoral
right.
94.3. Concealment or suppression of this nature deprives
the voters to make an informed and advised choice as a
consequence of which it would come within the
compartment of direct or indirect interference or attempt
to interfere with the free exercise of the right to vote by the
electorate, on the part of the candidate.
94.4. As the candidate has the special knowledge of the
pending cases where cognizance has been taken or charges
have been framed and there is a non-disclosure on his part,
it would amount to undue influence and, therefore, the
election is to be declared null and void by the Election
Tribunal under Section 100(1)(b) of the 1951 Act."
3 SCC 467
To the above extent therefore, the submission of
Mr.Agarwal that the allegations amounts to corrupt
practice are acceptable. But then, whether mere non-
submission of the affidavit in Form 25 shall entail
dismissal of the entire Election Petition is a question to
be considered. In this regard, the judgment of the
Supreme Court in the case of Thangjam Arun
Kumar Vs. Yumkham Erabot Singh &Ors.3 can be profitably
referred to wherein, an earlier judgment of the
Supreme Court rendered in the case of A.Manju v.
Prajwal Revanna (2022) 3 SCC 269 was referred to and
quoted. The relevant paragraphs of the judgment are
reproduced herein below;
"14. The position of law that emerges for the above
referred cases is clear. The requirement to file an
affidavit under the proviso to Section 83(1) (c) is not
mandatory. It is sufficient if there is substantial
compliance. As the defect is curable, an opportunity may
be granted to file the necessary affidavit.
15. In the instant case, the election petition contained an
affidavit and also a verification. In this very affidavit, the
election petitioner has sworn on oath that the paragraphs
where he has raised allegations of corrupt practice are
true to the best of his knowledge. Though there is no
separate and an independent affidavit with respect to the
allegations of corrupt practice, there is substantial
[2023] 11 S.C.R. 392
compliance of the requirements under Section 83(1)(c) of
the Act.
16. We are in agreement with the conclusion of the High
Court that there is substantial compliance of the
requirements under Section 83(1)(c) of the Act and this
finding satisfies the test laid down by this Court in
Siddeshwar(supra). Even the subsequent decision of this
Court in Revanna(supra) supports the final conclusion
arrived at by the High Court.
17. For the reasons stated above, we are of the opinion
that the Appellant has not made out a case for interfering
with the judgment of the High Court. We, therefore,
proceed to dismiss C.A. Nos. 4179-4180 of 2023 arising
out of the judgment and order of the High Court dated
11.04.2023 in MC (El. Pet.) No. 67 of 2022 and MC (El.
Pet.)No. 135 of 2022."
[Emphasis Added]
In the instant case also, as has already been
stated herein before, the Election Petition contains an
affidavit as also verification. Therefore, even if there is
no separate affidavit with respect to the allegation of
corrupt practice, it would be treated as substantial
compliance of the requirement of Section 83 (1)(C) of
the Act. Nonetheless, the Election Petitioner can
always be granted opportunity to file such affidavit.
20. In so far as Paragraph-14 (C), (D) and (E) are
concerned, it is stated by the sole Respondent that the
Election Petitioner has alleged that the Respondent in
his Form No.26 affidavit under Col.Nos.7(A) (ii), 7(A)(iv)
and 7(A) (vi) concealed information and furnished
wrong information about his movable assets and of his
spouse and dependents such as Bank accounts, L.I.C
policies and motor vehicles. According to the sole
Respondent, the Election Petitioner has not disclosed
the source of her knowledge as regards suppression of
financial particulars nor stated as to how the sole
Respondent had furnished erroneous information and
how the voters were misled by the same. The Election
Petitioner has made false and misleading statements
with regard to compliance of note 7(A)(ii) of Form 26
and instructions prescribed under HBRO Chapter-V-
Clause 5.29.4 and Chapter-XVIII-Clause-18.1 and
Section 77 (2) of the Act. There is no pleading as to
who are the co-parceners of the Respondent and who
else is the joint owner of the HUF property along with
the sole Respondent. The allegations under
Paragraph-14(E) are false and baseless and lack
material facts and particulars as the sole Respondent
has not disclosed the name of the Bank, amount
outstanding, nature of loan etc. The Election Petitioner
has not stated what are the correct liabilities/dues of
the sole Respondent. According to Mr. Agarwal, in the
absence of such material facts and particulars the
allegation made under Paragraphs-14 (C) to (E) cannot
be held to constitute a valid cause of action besides
being vague and non-specific.
20.1. It is stated in opposition that the Election
Petitioner has made specific allegations which can be
adjudicated during course of trial basing on
documentary and oral evidence adduced by the
parties. It is however, clear that the sole Respondent
did not disclose the details of Bank account opened for
his election expenditure in violation of Section 77(1) of
the Act and different clauses of the HBRO.
Mr. Mishra would argue on such basis that the
concise statement of all the material facts and
particulars thereof have been pleaded, which disclose
complete cause of action and constitute triable issues.
20.2. Reading of Paragraphs-14 (C) to (E) would reveal
that the Election Petitioner has made specific
allegations with regard to the omissions, discrepancies,
etc. in the sole Respondent's affidavit in Form 26
relating to bank deposits, insurance policies and
investments, details of motor vehicles, non-disclosure
of agricultural land and ancestral property, partial
disclosure of loan amount, hypothecation etc.
According to the Election Petitioner, these are material
omissions and suppression of facts which, despite
objection being raised by the Election Petitioner's
representative during scrutiny, were ignored by the
Returning Officer resulting in improper acceptance of
the sole Respondent's nomination. This Court fails to
comprehend as to what more the Election Petitioner
could have pleaded inasmuch as all relevant details
such as vehicle numbers, particulars of agricultural
lands, ancestral property, etc. have been given. What
was disclosed and what was withheld have been stated
in reasonable detail. The issues raised can only be
resolved through trial. For the reasons indicated it
cannot be said that the pleadings under the
aforementioned paragraphs do not constitute valid
cause of action.
21. In so far as Paragraph-14(F) is concerned, it is
stated that the allegation that by affixing adhesive
stamp and notarial fee in the Form 26 affidavit instead
of utilizing non-judicial stamp paper, the said affidavit
is non-est in the eye of law, is wholly misplaced
unfounded and misleading.
Mr. Agarwal has referred to different provisions
of the Indian Stamp Act and the Odisha Stamp Rules
to basically contend that when non-judicial stamp
paper is not available, the stamp duty can be paid by
affixing adhesive stamp as also by franking machine.
Therefore, the contentions raised by the Election
Petitioner that the affidavit in From 26 is no affidavit
cannot be accepted. According to Mr. Agarwal
therefore, the pleadings in Paragraph-14(F) being
completely false with ulterior motive to make a fishing
and roving inquiry though this Court deserves to be
struck out.
21.1. It is stated in opposition to the above that
according to the Election Petitioner, the affidavit in
Form 26 submitted by the Respondent not having been
engrossed/typed out on stamp paper is invalid and
non-est in the eye of law. Further, acceptance of such
invalid affidavit by the Returning Officer is illegal and
improper despite objections raised by the
representative of the Election Petitioner.
21.2. Mr. B. Mishra, learned Senior counsel, submits
that the admission that the affidavit in Form 26 was
not on stamp paper, attracts the power conferred
under Order XII Rules 1 and 6 of C.P.C.
Before delving into the merits of the rival
contentions, this Court takes note of the fact that both
the parties have relied upon some judgments in
support of their respective contentions. After perusing
the cited judgments, this Court does not deem it
proper to refer to each one of them for the reason that
the judgments essentially state the consequences of
non-submission of affidavit on proper stamp papers.
In the instant case, the allegations have to be proved.
Whether the provisions of the Stamp Act and Rules
referred to by Mr. Agarwal would apply to the facts of
the case can be considered not at the threshold but at
the time of trial. It would suffice to say that specific
allegation has been made by the Election Petitioner
relating to the validity of the affidavit in Form 26
submitted by the sole Respondent and its improper
acceptance. These are obviously triable issues which
can be proved through evidence adduced during trial.
It cannot therefore be said that the pleadings do not
disclose valid cause of action so as to be struck out.
22. It is stated that the allegations made in
Paragraph-14 (G) and (H) of the Election Petition
deserve to be struck out as the said allegations relate
to one Amita Biswal (INC candidate), who is not a
party and therefore, the allegations cannot be
adjudicated upon in her absence being contrary to the
principles of natural justice. It is further stated that
the allegation that the acceptance of the revised
affidavit in Form 26 submitted by Amita Biswal
through one Manish Kumar Bajpayee is unnecessary,
vexatious and frivolous because Section 33 and 33-A
referred to by the Election Petitioner nowhere
prescribes that such affidavit is to be filed by the
candidate herself or by her proposer only. There is also
no pleading about the source of knowledge of the
Election Petitioner about the filing of revised affidavit
by Manish Kumar Bajpayee and that he is not the
proposer of Amita Biswal. The further allegation that
Amita Biswal secured 5775 votes which is more than
the margin i.e. 1333 votes, should be construed as
having materially affected the result of the election is
vague and bald. Mr. Agarwal argues that there is no
pleading in the Election Petition with respect to pattern
of voting and the way polling went as amongst the
different candidates.
22.1. It is stated in opposition that the Election
Petitioner has alleged under Paragraph-14 (G) that
Amita Biswal had concealed material information
about her assets and liabilities as well as her spouse
and that her affidavit in Form 26 was invalid. Non-
impletion of Amita Biswal cannot be a ground to strike
out the pleadings since the Election Petitioner has not
made any allegation of corrupt practice against Amita
Biswal but has prayed to declare the election of the
sole Respondent as void.
Mr. B. Mishra would argue that since no relief
is claimed against Amita Biswal, but the sole prayer is
to declare the election of the sole Respondent as void,
non-impletion of Amita Biswal in the case is
immaterial.
22.2. Section 82 of the R.P. Act deals with parties to
the petition and reads as follows;
"82. Parties to the petition.--
A petitioner shall join as respondents to his
petition--
(a) where the petitioner, in addition to claiming
declaration that the election of all or any of the
returned candidates is void, claims a further
declaration that he himself or any other candidate
has been duly elected, all the contesting
candidates other than the petitioner, and where no
such further declaration is claimed, all the returned
candidates; and
(b) any other candidate against whom allegations
of any corrupt practice are made in the petition".
From the pleadings in the aforementioned
paragraphs and the contentions advanced, it is clear
that the Election Petition does not fall under any of the
clauses of the provision. The sole prayer is to declare
the election of the sole Respondent as void. No further
declaration is sought that the Election Petitioner
should have been held to be duly elected. Under such
circumstances, this Court is of the view that Amita
Biswal is not a necessary party to the Election Petition.
Coming to the other contentions raised, reading
of the pleadings under the aforementioned paragraphs
would reveal that the Petitioner has questioned the
acceptance of the revised affidavit of Amita Biswal by
the Returning Officer on the ground that the same was
submitted by one Manoj Kumar Bjpayee, who was not
her proposer. Further, the margin of victory of the sole
Respondent being only 1333, the Election Petitioner
reasonably believes that had the nomination of Amita
Biswal been rejected, she might have received votes
more than the margin out of the votes polled by said
Amita Biswal. Whether the nomination of Amita Biswal
was improperly accepted for the reasons indicated is a
matter to be decided during trial on the basis of
evidence. Since specific allegation has been made by
the Election Petitioner, the pleadings cannot be struck
out as unnecessary or vexatious. On the contrary, this
Court finds that the same constitute valid cause of
action.
23. With regard to the averments made in
Paragraph-14 (I) and (J), it is stated that the same are
bereft of material facts and particulars inasmuch as
the details of the Polling Agents of Election Petitioner
and other contesting candidates at the said 43 Polling
Stations have not been given, it has not been stated
whether the Polling Agents were present throughout
till closure of Polling. There is no pleading that there
was any discrepancy in the entry regarding total
number of votes polled and counted, no pleading that
Form 17(C) Part-1 was not supplied to the Polling
Agents of the Election Petitioner, the details of the
Presiding Officer and Polling Officer, no pleading that
any objection was raised regarding non-supply of the
form and whether they were filled up or not by the
Presiding Officer etc.
Mr. Agarwal would argue that the Election
Petitioner has made only vague allegations without
furnishing the material facts and particulars. In this
regard, Mr. Agarwal has relied upon several judgments.
23.1. It is stated in opposition that the very fact that
the sole Respondent in his Interlocutory Application
has categorically denied the allegations as false implies
that the same involves triable issues which can be
adjudicated basing on oral and documentary evidence.
Further, specific allegations have been made in respect
of 14 Polling Stations and the defects relating to Form
17(C) Part-1, the number of votes which ought to be
treated as void, have also been mentioned. So, it
cannot be said that the pleadings are either
unnecessary or scandalous.
Mr. Mishra would argue that the facts pleaded
are triable issues for which the pleadings cannot be
thrown out at the threshold.
23.2. Perusal of the pleadings under Paragraphs-14 (I)
and (J) would reveal that the Election Petitioner has
made specific allegations that the respective Presiding
Officers of 43 Polling Stations, the numbers of which
have also been stated, did not supply copy of the
statutory Form No.17(C) Part-1 to the respective
Polling Agents of the Election Petitioner. The allegation
being relatable to non-supply of the statutory form,
according to the considered view of this Court, the
names of the Presiding Officers and/or of the Polling
Agents are not very relevant, at least at this stage.
Only because the names have not been given cannot
nullify the allegation. Further, according to the
Election Petitioner because of non-compliance of the
incurable defects, the total votes polled in the 14
Polling Stations i.e. 11508 should be rendered void. It
is for the Election Petitioner to prove by adducing
evidence to substantiate her contention as above. This
cannot be treated as an unnecessary, frivolous or
vexatious pleading or one without material facts or
particulars.
24. With regard to the pleadings under Paragraph-
14(K), it is stated that the same are based on surmises
and conjectures without stating as to why 100
numbers of postal ballots should have been counted in
favour of the Election Petitioner out of 179 rejected
postal ballots. On what ground the postal ballots were
rejected, the details of the counting agents who raised
objection during counting, who were present during
counting, whether any objection was raised before
Election Observer, the details of counting Supervisor
and her counting Agents, whether the Election
Petitioner herself, her election and counting Agents
were present or not have not been pleaded. Further,
false statements have been made with regard to
mismatch of Identification Number of the control unit
of EVMs used at the time of counting and those used
at the time of Polling. The details of counting Agents
and counting Supervisors present, details of table and
round of counting etc. have not been given. There is no
pleading that the Petitioner raised objection
challenging the counting of votes. It is also not pleaded
that because of such mismatch, result of election was
materially affected.
Mr. Agarwal would submit that the pleadings are
vague and non-specific and in any case do not contain
the relevant material particulars.
24.1. It is stated in opposition that the Election
Petitioner, referring to the instructions contained in
Handbook for Returning Officer has specifically
pleaded that the counting of postal ballots is to be
commenced first and thereafter counting of the votes
recorded in EVMs is to be done. In the instant case,
this process was not followed which has been
mentioned in the pleading. It is also the specific case of
the Petitioner that 100 postal ballots polled in favour of
the Petitioner were rejected on flimsy grounds despite
objections raised by her and her representatives.
Further, it is specifically alleged that there was
mismatch of Control Unit Identification Numbers of the
EVMs and on such basis it has been contended that
6313 votes are liable to be declared as void, which is a
large number compared to the margin of loss of the
Election Petitioner.
Mr. Mishra would argue that all these are triable
issues, which the Petitioner will seek to prove by
adducing evidence during trial. Moreover, the margin
of loss being very less and the number of votes ought
to be declared void being more than that, it is
reasonably contended that had the objections raised by
the Election Petitioner been considered in proper
perspective at the relevant time, the result of the
election would have been materially affected.
24.2. After going through the pleadings under
Paragraph-14(K) and the contentions raised, this Court
finds that specific allegations have been made by the
Election Petitioner. These are obviously triable issues.
Only because the ground of rejection of the postal
ballots was not given or the details of the Counting
Agent who raised objections were not given, cannot
persuade the Court to strike out the pleadings on the
ground of vagueness or frivolity. To repeat, specific
allegations have been made which constitute material
facts which are adequate to take the case to trial. It is
for the Election Petitioner to substantiate her
allegation by adducing evidence at the time of trial.
25. Paragraph-14(L) is basically formal in nature.
26. Paragraphs 15 to 18 are formal in nature and
therefore, have to be read conjointly with the other
paragraphs containing specific allegations.
27. From a conspectus of the analysis made
hereinbefore, this Court finds that no case has been
made out by the sole Respondent to dismiss the
Election Petition at the threshold invoking power under
Order VII Rule 11 C.P.C. or to strike out any of the
pleadings as per Order VI Rule 16 of C.P.C. As has
already been stated, this Court finds that the pleadings
disclose material facts all of which are triable issues
and therefore, constitute valid cause of action for filing
the Election Petition. The contentions raised by the
sole Respondent are therefore, bereft of any merit.
28. In the result, I.A. No.111/2024 being devoid of
merit is therefore, dismissed. The Election Petitioner is
granted three weeks' time to file affidavit in Form 25,
failing which, appropriate order shall be passed with
regard to maintainability of the Election Petition.
..................................
Sashikanta Mishra,
Judge
Designation: A.D.R.-cum-Addl. Principal Secretary
Reason: Authentication Ashok Kumar Behera
Location: Orissa High Court, Cuttack
Date: 21-Mar-2025 14:14:09
