[Cites 25, Cited by 0]

Orissa High Court

Afr Rashid@Rasid Aslam .... Election vs Sarada Prasad Nayak on 6 February, 2026

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                I.A 96 of 2024
                             ELPET No.-10 of 2024

        (An application under Section 86 of the Representation of the People
        Act, 1951 read with Order 6 Rule 16, Order-7 Rule-11 and Section 151
        of the Code of Civil Procedure)

AFR     Rashid@Rasid Aslam                 ....    Election Petitioner

                                     -Versus-

        Sarada Prasad Nayak                 ....            Respondent


        Advocate(s) appeared in this case:-
        _______________________________________________________
        For Petitioner      : Mr. Bidyadhar Mishra, Sr. Advocate
                              M/s. T.K. Biswal, R.P. Panda
                              & B.S. Panigrahi, Advocates

        For Respondent      : Mr. U.K. Samal, M.R. Mohapatra,
                              S.P. Patra, & N. Samal, Advocates
        __________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                                   JUDGMENT

06.02.2026

SASHIKANTA MISHRA, J.

The present application has been filed by the

sole Respondent of the above-mentioned Election Petition

under Section 86 of the Representation of the People Act,

1951 read with Order VI Rule 16, Order-VII Rule-11 and

Section 151 of the Code of Civil Procedure. In this

application, the Respondent prays for striking out the

pleadings contained in Paragraphs 5 to 19 and 15-A to 15-

K of the Election Petition, and for the rejection/dismissal of

the Election Petition in its entirety at the very threshold in

terms of Section 86 of the said Act. It is contended that the

pleadings sought to be struck off are wholly irrelevant,

frivolous, and scandalous, amounting to a gross abuse of

the process of this Court. Additionally, it is submitted that

the Election Petition lacks essential material facts and

particulars, fails to disclose a complete cause of action, and

does not raise any triable issues, thereby warranting its

dismissal at the preliminary stage.

2. The present I.A has been filed basically on the

following grounds;

"A) Whether in the absence of complete material facts, the Election Petition shall be dismissed/ rejected? B) Whether in the absence of the full particulars, the Election Petition shall be dismissed/ rejected? C) Whether in the absence of proper verification of pleading as per the manner laid down in the Code of Civil Procedure, 1908, the Election Petition shall be dismissed/ rejected?

D) Whether in the conspicuous absence of an additional affidavit in the prescribed Form No.25 as per the requirement of the proviso to sub-Section 1 of Section 83 of Representation of People Act, 1951 and Rule 94-A of the conduct of Election Rules, 1961, in support of the allegation of corrupt practice and particulars thereof with the alleged Sections and Sub-

sections of that corrupt practice, the Election Petition shall be dismissed/ rejected?

E) Whether, for the non-disclosure of the source of information in the Election Petition shall be dismissed/ rejected?

F) Whether in the absence of the specific pleading that the result of the election in so far as it concerns a returned candidate, has been materially affected, the Election Petition shall be dismissed/ rejected? G) Whether this Hon'ble Court while disposing of the application filed under Order VII Rule 11 C.P.C. shall consider the entire pleadings made in the Election Petition or any part thereof and while considering the said application the written statement filed by the Respondent No.1 and any other pleadings shall be taken into consideration?

H) Whether the Election Petition is liable for rejection as the document on which the alleged cause of action based, has not produced?"

3. Written objection has been filed by the Election

Petitioner basically stating that all material facts

constituting valid cause of action and triable issues have

been substantially pleaded. As regards the procedural

defects and filing of Form-25 pointed out, the same are

curable in nature. The pleadings are based on the affidavit

in Form-26 submitted by the Respondent at the time of his

nomination.

4. The grounds cited by the Respondent for

summary dismissal of the Election Petition, rejection of

plaint and striking out pleadings shall be discussed

individually along with the contentions raised by the

parties.

5. For convenience, the parties are referred to as

per their original status in the Election Petition.

6. Heard Mr. U.K Samal, learned counsel for the

sole Respondent/Petitioner in the I.A and Mr. B. Mishra,

learned Senior counsel with Mr. T.K. Biswal for the Election

Petitioner/Opp. Party in I.A.

7. At the outset, Mr. Samal, learned counsel for the

Respondent/Petitioner in the I.A, would submit that

paragraphs 1 to 14, Paragraphs 5 to 19 and 15-A to 15-K of

the Election Petition merely recount the issuance of

statutory notifications, filing of nominations, declaration of

results, and a general background leading to the filing of

the petition. Except for references to official notifications

and results, the remaining averments are vague, bald, and

unsupported by any documentary evidence. These

unfounded and sweeping allegations are unnecessary,

scandalous, frivolous, and vexatious, constituting an abuse

of the process of this Court. In the absence of specific

material facts, the Election Petitioner is not entitled to any

relief and further lacks locus standi to challenge the

election of the present Petitioner. Accordingly, the

impugned pleadings are liable to be struck out.

Mr. Samal also questions the maintainability of

the election petition referring to Section-82 read with

Section-86 of RP Act. He argues that the election petitioner,

apart from seeking the relief that the election of Respondent

Sarada Prasad Nayak be declared void and be set aside

along with incidental prayers, has also sought the relief of

declaration that the acceptance of the nomination of

another candidate namely, Birendra Nath Pattnaik is illegal

and improper in the eye of law. Such relief against Birendra

Nath Pattnaik is sought on the ground of suppression of

material information regarding criminal cases pending

against him.

Mr. Samal refers to the provision under Section

82(b) of the Act to submit that the above allegation against

Birendra Nath Pattnaik amounts to corrupt practice and

hence he ought to have been impleaded as a respondent in

the election petition. The election petitioner not having

impleaded him as a respondent, the election petition is

liable to be dismissed as per Section 86 of the Act. To

buttress his contention as above, Mr. Samal has relied

upon the following judgments:

i. Jyoti Basu v. Debi Ghosal1

ii. B. Sundara Rami Reddy v. Election Commission of India2

iii. Michael B. Fernandes v. C.K. Jaffer Sharief And Ors. 3

On such grounds, Mr. Samal submits that the

election petition itself is liable to be dismissed.

8. Per contra, Mr. Mishra, learned Senior counsel

for the Election Petitioner, submits that the pleadings

under paragraphs 1 to 14, Paragraphs 5 to 19 and 15-A to

15-K of the Election Petition clearly disclose all necessary

material facts constituting a complete cause of action. The

Election Petitioner possesses locus standi under the

Representation of People Act, 1951. It is further submitted

that the Election Petitioner has duly pleaded a concise

statement of material facts and necessary particulars,

without delving into evidence, in accordance with the

settled principles of election law. The Respondent's

objections are premature and misconceived. The pleadings

(1982) 1 SCC 691

1991 Supp (2) SCC 624

(2002) 3 SCC 521

are neither vague, unnecessary, scandalous, nor an abuse

of the process of this Court.

With regard to the objection raised by Mr. Samal

on the maintainability of the writ application, Mr. Mishra

would submit that the relief claimed by the election

petitioner in respect of Birendra Nath Pattnaik is incidental

to the main relief claimed against the sole respondent.

Birendra Nath Pattnaik not being the closest rival of the

election petitioner, no relief is actually claimed against him

though it is stated that his nomination should not have

been accepted as he had suppressed information regarding

criminal cases pending against him. Mr. Mishra therefore,

submits that Birendra Nath Pattnaik is not a necessary

party within the meaning of Section 82(b) of the Act.

According to him, the present IA is devoid of merit and is

liable to be dismissed.

9. Be it noted that both parties have presented

extensive arguments on all the points raised in the I.A.

However, the question of maintainability of the election

petition for non-impletion of Birendra Nath Pattnaik having

been raised, this Court deems it proper to consider the

same as a preliminary issue as the same goes to the root of

the matter.

10. In order to appreciate the contentions advanced

with regard to maintainability, it would be proper to take

note of the prayer made in the election petition, which is

reproduced below:

"It is therefore, prayed that this Hon'ble Court may graciously be pleased to admit the present Election Petition, issue notice to the sole Respondent and after hearing the respective parties and/or their respective counsels, allow this Election Petition and pass the following orders:

A. Let it be declared that the election of the sole Respondent Sarada Prasad Nayak is void and be set aside;

B. Let it be declared that the Affidavit in Form 26 filed by the sole Respondent Sarada Prasad Nayak does not disclose full and complete information regarding his criminal antecedents/ pendency of criminal cases against him and he has suppressed many material infonuation about the pending criminal cases against him as well as the sole Respondent Sarada Prasad Nayak has suppressed material information regarding his assets/liabilities and of his spouse in his affidavit in Form-26, for which his nomination is liable to be rejected and acceptance of his nomination by the Returning Officer with his false affidavit in Form-26 is illegal and improper and as such his election is void and be set aside; C. Let it be declared that since there is no appropriate declaration by the sole Respondent Sarada Prasad Nayak about pendency of criminal cases against him in widely circulated newspapers in the locality as well as TV channels, nor by his political party i.e. Biju Janata Dal as required under law, his nomination is liable to be rejected and as such his election is void and be set aside;

D. Let it be declared that on account of improper acceptance of the nomination of the sole Respondent Sri Sarada Prasad Nayak, who won the election in question, the result of the election, in so far as it

concerns the returned candidate / the sole Respondent Sarada Prasad Nayak, has been materially affected and as such his election is void and be set aside; E. Let it be declared that since there is glaring non-compliance of provisions of election law in the process of polling of votes and counting of votes, the result of the election, in so far as it the returned candidate / the sole Respondent Sarada Prasad Nayak, has been materially affected and as such his election is void and be set aside;

F. Let it be declared that since in the process of polling of votes and counting of votes as many as 30,524 numbers of void votes have been polled and counted, as comprehensively stated under Paragraphs 8, 9, 10 and 15, which is disproportionately large than the margin of difference i.e. 3552 votes, the result of the election, in so far as it relates to the returned candidate / the sole Respondent Sarada Prasad Nayak, has been materially affected and as such his election is void and be set aside;

G. Let it be declared that since Birendra Nath Pattnaik, the official nominee of Indian National Congress, in his Affidavit in Form 26 has suppressed material information regarding criminal cases pending against him, his nomination is liable to be rejected and acceptance of his nomination is illegal and improper in the eyes of law;

H. Let it be declared that since the nomination of Birendra Nath Pattnaik, the official nominee of Indian National Congress, has been improperly accepted, who has secured 8751 votes in the election in question and the same are void and thrown away votes and as the number of such void and thrown away votes being disproportionately large than the margin of difference i.e. 3552 votes, the result of the election, in so far as it concerns the returned candidate of 12-Rourkela Assembly Constituency, has been materially affected and as such the election of the returned candidate of 12-Rourkela Assembly Constituency namely Sarada Prasad Nayak (the sole Respondent) is void and be set aside;

I. Let it be declared that a casual vacancy has been created in so far as it concerns 12-Rourkela Assembly Constituency and direct the Election Commission of India to conduct a fresh election with respect to 12-Rourkela Assembly Constituency; J. For inspection of all the Control Units of EVMs and VVPAT slips used in all the 197 Polling Stations of 12-Rourkela Assembly Constituency as mentioned in

the statutory Form 17C Part-I and statutory Form 17C Part-II and complete the result of counting of votes by a person appointed by the Court in presence of representatives of the parties and/or their counsels; K. To call for all relevant and required election documents/records from the custody of the District Election Officer, Sundargah / Returning Officer of 12- Rourkela Assembly Constituency and/or other appropriate authorities;

         L.       For costs;
         M.       For any other relief or reliefs to which the

Election Petitioner is entitled to under law."

[Emphasis Added]

11. Evidently, serial No. G is relevant for the present

discussion. As is further evident, the election petitioner

claims that Birendra Nath Pattnaik had suppressed

material information regarding criminal cases pending

against him. It would be profitable to refer to the

corresponding pleadings in the election petition, which are

found in Paragraphs 15-C and 15-I. Same are reproduced

below:

"(C) For that on 04.05.2024 during the course of scrutiny of nominations by the Returning Officer, the authorized representative of Sri Dilip Kumar Ray namely Sri Raghunath Bal being accompanied by Senior Advocate Sri Pitamber Acharya raised vehement objections to the nomination of Sri Birendra Nath Pattnaik, the official nominee of Indian National Congress, on the ground that he has not disclosed full and complete information regarding his criminal antecedents and suppressed many material information in his Affidavit in Form-26. Senior Advocate Sri Pitamber Acharya further vehemently urged before the Returning Officer that neither Birendra Nath Pattnaik nor his political party i.e. Indian National Congress has published in widely circulated newspapers in the locality disclosing the

criminal antecedents of Birendra Nath Pattnaik which violates the directions issued by the Hon'ble Supreme Court of India as well as the Election Commission of India.

But, the Returning Officer did not hear such objections saying that you may take recourse in proper Court of law and accepted the nomination of Birendra Nath Pattnaik illegally and improperly.

On account of such improper acceptance of nomination of Birendra Nath Pattnaik (INC), who has secured 8751 votes in the election in question and such votes being void and thrown away votes and disproportionately large than the margin of difference i.e. 3552 votes, the result of the election, in so far as it concerns the returned candidate of 12-Rourkela Assembly Constituency, has been materially affected and as such the same is liable to be set aside. (I) For that the Affidavit in Form-26 filed by the sole Respondent Sarada Prasad Nayak (BJD) as well as Birendra Nath Pattnaik (INC) having been filed in utter violation/contradiction of the requirement of law as mandated under Section 33 A of the R.P. Act, 1951 read with Rule 4A of the Conduct of Elections Rules, 1961 creates impediment in free exercise of electoral right of the electors of 12-Rourkela Assembly Constituency inasmuch as the misinformed voters could not make informed choice according to their free will and conscience and further such violation infringes the fundamental right of the electors as enshrined under Article 19(l)(a) of the Constitution of India, therefore the result of the election, in so far as it concerns the returned candidate of 12-Roukela Assembly Constituency, has been materially affected and as such the same is liable to be set aside"

Thus, it is the case of the election petitioner that Birendra

Nath Pattnaik suppressed the fact of pendency of criminal

cases against him in his nomination paper and Form-26

affidavit. As such, his nomination was illegally accepted by

the returning officer.

12. Now, suppression of criminal cases by a

candidate amounts to a corrupt practice within the

meaning of Section 123 of the Act. Reference may be had in

this regard to the judgment of the Supreme Court in the

case of Krishnamoorthy v. Sivakumar4, where the

following was observed:

"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."

13. The election petitioner, as already stated, claims

that the nomination of Birendra Nath Pattnaik was liable to

be rejected on such ground, but was illegally accepted.

Accordingly, a declaration has been sought regarding the

illegal and improper acceptance of the nomination.

(2015) 3 SCC 467

14. It would be profitable at this stage to refer to

Section 82 of the Act, which deals with the parties to

election 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 a 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"

[Emphasis added]

15. The use of the word "shall" ex facie makes the

provision mandatory. This is all the more evident from the

fact that the consequence of violation of the provision

under Section 82 is dismissal of the election petition as a

whole, as provided under Section 86(1), which is

reproduced below:

"86. Trial of election petitions.--(1) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.

Explanation.--An order of the High Court dismissing an election petition under this sub-section shall be deemed to be an order made under clause (a) of section 98.

XX XX XX."

16. Thus, when read conjointly under the scheme of

the Act, non-joining of a candidate as a respondent against

whom an allegation of corrupt practice has been made is

fatal to the election petition. This was expressly held by the

Supreme Court in the case of Mohan Raj v. Surendra

Kumar, 1968 SCC OnLine SC 282 in the following words.

"It is argued that the Civil Procedure Code applies and Order 6, Rule 17 and Order 1, Rule 10 enable the High Court respectively to order amendment of a petition and to strike out parties. It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of reference to Periwal. This argument cannot be accepted. No doubt the power of amendment is preserved to the court and Order 1 Rule 10 enables the court to strike out parties but the court cannot use Order 6 Rule 17 or Order 1 Rule 10 to avoid the consequences of non- joinder for which a special provision is to be found in the Act. The court can order an amendment and even strike out a party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see Section 87). When the Act enjoins the penalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition."

[Emphasis added]

The above view was again referred to with

approval in the case of Jyoti Basu (Supra).

17. Also, the ratio laid down in Udhav Singh v.

Madhav Rao Scindia5 squarely applies to the present

case. The Supreme Court held that the requirement of

impleading a candidate against whom allegations of corrupt

practice are made is founded on the fundamental principle

of natural justice that no person should be condemned

unheard. Since a charge of corrupt practice entails serious

penal consequences, including disqualification from

contesting elections, Section 82(b) casts a peremptory

obligation on the Election Petitioner to implead such

candidate. Non-compliance inexorably attracts Section 86

of the Act, which mandates dismissal of the Election

Petition. Such a defect is not curable and can be raised at

any stage of the proceedings. Once the defect is noticed, the

Court is bound to dismiss the Election Petition in obedience

to the statutory mandate.

18. The question whether such a person could be

subsequently added as a party, as permissible under the

Code of Civil Procedure, was examined by the Supreme

Court in the case of B. Sundara Rami Reddy (supra),

wherein it was observed as follows:

(1977) 1 SCC 511

"4. Learned counsel for the petitioner urged that even if the Election Commission may not be a necessary party, it was a proper party since its orders have been challenged in the election petition. He further urged that since Civil Procedure Code, 1908 is applicable to trial of an election petition the concept of proper party is applicable to the trial of election petition. We find no merit in the contention. Section 87 of the Act lays down that subject to the provisions of the Act and any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, 1908 to the trial of suits. Provisions of the Civil Procedure Code have thus been made applicable to the trial of an election petition to a limited extent as would appear from the expression "subject to the provisions of this Act". Since Section 82 designates the persons who are to be joined as respondents to the petition, provisions of the Civil Procedure Code, 1908 relating to the joinder of parties stands excluded. Under the Code even if a party is not necessary party, he is required to be joined as a party to a suit or proceedings if such person is a proper party, but the Representation of the People Act, 1951 does not provide for joinder of a proper party to an election petition. The concept of joining a proper party to an election petition is ruled out by the provisions of the Act. The concept of joinder of a proper party to a suit or proceeding underlying Order I of the Civil Procedure Code cannot be imported to the trial of election petition, in view of the express provisions of Sections 82 and 87 of the Act. The Act is a self-

contained Code which does not contemplate joinder of a person or authority to an election petition on the ground of proper party. In K. Venkateswara Rao v. Bekkam Narasimha Reddi [AIR 1969 SC 872 :

(1969) 1 SCR 679] , this Court while discussing the application of Order I Rule 10 of the Civil Procedure Code to an election petition held that there could not be any addition of parties in the case of an election petition except under the provisions of sub-section (4) of Section 86 of the Act. Again in Jyoti Basu v. Debi Ghosal [(1982) 1 SCC 691 : (1982) 3 SCR 318] , this Court held that the concept of 'proper party' is and must remain alien to an election dispute under the Representation of the People Act, 1951. Only those may be joined as respondents to an election petition who are mentioned in Section 82 and Section 86(4)

and no others. However desirable and expedient it may appear to be, none else shall be joined as respondents."

Therefore, the benefit available under the CPC

cannot apply to the present case.

19. Thus, the law as it stands mandates that a

candidate against whom an allegation of corrupt practice

has been made, has to be joined as a respondent. If not, the

election petition has to be dismissed.

20. From what has been narrated before, the election

petitioner has made allegations of corrupt practice against

Birendra Nath Pattnaik, another candidate, without joining

him as a respondent. This is a violation of Section 82, for

which the election petition is liable to be dismissed under

Section 86(1) of the Act.