[Cites 7, Cited by 0]
Orissa High Court
Anusaya Sahoo @ Sahu vs Alaka Panda & Another .... Opposite ... on 10 March, 2026
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR W.P.(C) No.3625 of 2024
Anusaya Sahoo @ Sahu .... Petitioner
Mr. U.K. Samal, Advocate
-Versus-
Alaka Panda & another .... Opposite Parties
Mr. R. Behera, Advocate for O.P.No.1
Mr. P.K. Ray, AGA
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF HEARING:03.12.2025
DATE OF JUDGMENT:10.03.2026
1.
Instant writ petition is filed by the petitioner assailing the
correctness, legality and judicial propriety of the impugned
judgment dated 7th February, 2024 as at Annexure-4 passed
in connection with F.A.O. No.16 of 2023 by the learned
Additional District Judge, Kamakhyanagar confirming the
decision in Election Misc. Case No.07 of 2022 dated 30th
November, 2023 of the learned Civil Judge (Junior
Division), Kamakhyanagar as per Annexure-3, whereby, her
election as Sarapanch of Kankadahad Gram Panchayat has
been declared void in view of Section 25(1)(w) of the
Odisha Grama Panchayats Act, 1964 (hereinafter referred to
as 'the Act') on the grounds inter alia that such declaration
is not legally tenable and hence, liable to be interfered with
and set aside in the interest of justice.
2. In fact, opposite party No.1 filed the election petition for
declaring the election of the petitioner as invalid in view of
Section 25(1)(w) of the Act of filing a false affidavit along
with the nomination paper thereby not disclosing the
liabilities incurred by her inviting disqualification under the
provisions of the Act in terms thereof and considering the
same, the learned Civil Judge (Junior Division),
Kamakhyanagar declared it as void vide Annexure-3. As
against the above decision, the petitioner filed an appeal
before the learned court below and it was disposed of
confirming the disqualification by judgment (Annexure-4)
dated 7th February, 2024 with a conclusion that such
disqualification shall have to be in accordance with Section
39 of the Act. Being aggrieved of, the petitioner had
approached this Court by filing the writ petition on the
grounds, such as, non-disclosure does not vitiate the
election, inasmuch as, declaration of liability incurred by
way of a loan is not statutorily mandated and that apart,
there is nothing on record to prove and establish that for not
having disclosed such information, the result of the election
has been materially affected and therefore, the conclusion of
the learned courts below vide Annexure-3 & 4 is grossly
erroneous and hence, liable to be quashed.
3. Heard Mr. Samal, learned counsel for the petitioner, Mr.
Behera, learned counsel for opposite party No.1 and Mr.
Ray, learned AGA for the State.
4. The State Election Commissioner issued notification for
Panchayat election scheduled to be held in the month of
February, 2022 and in that, the petitioner, opposite party
No.1 and three other candidates filed nomination for the
post of Sarpanch of the concerned GP before opposite party
No.2. According to opposite party No.1, an objection was
raised before opposite party No.2 at the time of scrutiny of
the nomination papers on 22nd January, 2022 that the
petitioner has outstanding loan dues payable and the same
has not been disclosed, rather concealed, hence for such
non-disclosure in the affidavit, she invites disqualification
under Section 25(1)(w) of the Act and as such, it should not
be accepted as a valid nomination.
5. As per the pleading on record, the petitioner secured 1660
votes, whereas, opposite party No.1 received 1579 votes and
as per opposite party No.1, in view of the disqualification
under Section 25(1)(w) of the Act, opposite party No.2
could not have notified the election of the petitioner as the
returned candidate on 2nd March, 2022. Considering the
challenge to the election of the petitioner, the learned Civil
Judge (Junior Division), Kamakhyanagar received evidence
from both the sides. The election petitioner, namely,
opposite party No.1 examined three witnesses and proved
five documents and on the other hand, the returned
candidate, namely, the petitioner examined two witnesses
including herself but led no documentary evidence.
Considering the evidence of the parties, the learned Civil
Judge arrived at a conclusion that the petitioner's election as
Sarpanch of the GP is invalid being violative of Section
25(1)(w) of the Act. The learned court below reappreciated
the evidence and equally concluded that the petitioner's
election suffers from disqualification and the same is liable
to be declared invalid under Section 39 of the Act.
6. Mr. Samal, learned counsel for the petitioner cited the
following decisions, such as, Smt. Bauri Dehuri Vrs. Smt.
Kamala Pradhan & others 2001(II)OLR-128; Goreti
Xess Vrs. Jyoti Xaxa & another 2016 (Supp.-II) OLR-
1109; Patuari Padhan Vrs. Haribandhu Padhan &
others 2024(II) OLR-803; Mangani Lal Mandal Vrs.
Bishnu Deo Bhandari (2012) 3 SCC 314; and Karikho
Kri Vrs. Nuney Tayang & another (2024) 15 SCC 112 to
contend that the learned courts below fell into gross error in
declaring the election of the petitioner as void as it has not
materially affected the election result.
7. On the contrary, Mr. Behera, learned counsel for opposite
party No.1 would submit that for non-disclosure of the loan
and outstanding dues payable by the petitioner and her
husband, it has amounted to suppression of facts and filing a
false affidavit at the time of nomination, which is a ground
of disqualification and therefore, the learned courts below
did not commit any illegality in declaring the election of the
petitioner as void and hence, the impugned judgments at
Annexure-3 & 4 are to be upheld.
8. Recorded the submission of Mr. Ray, learned AGA for
the State.
9. Perused the LCRs of Election Misc. Case No.07 of 2022
and F.A.O. No.16 of 2023 received by this Court.
10. The delay in filing the election petition has been
condoned in terms of Section 5 of the Limitation Act by the
learned Civil Judge (Junior Division), Kamakhyanagar. The
ground of disqualification claimed by opposite party No.1 is
referable to Section 25(1)(w) of the Act. The election
petition was filed for declaring the petitioner's election to
the post of Sarpanch as void and opposite party No.1 as
validly elected to that post in her place with such other
reliefs sought for. The ground of disqualification is found
to have been favoured with and it has resulted in the
impugned judgment vide Annexure-3 and then in appeal by
the learned court below. It has been the unanimous decision
of the learned courts below that the petitioner stands
disqualified under Section 25(1)(w) of the Act.
11. It has been pleaded on record that the disqualification
under Section 25(1)(w) of the Act was introduced by way of
an Ordinance. According to the petitioner, Odisha
Ordinance No.2 of 2021 was introduced and it was by virtue
of Odisha Panchayat Laws (Amendment) Ordinance, 2021,
but was not ratified by the Legislative Assembly thereafter
and upon expiry of six weeks, the same ceased to operate,
the fact which was completely lost sight by the courts
below. However, such plea cannot stand scrutiny of the
Court since after the Ordinance, it was followed by an
amendment to the Act introduced through the Odisha
Panchayat Laws (Amendment) Act, 2022 and with the
insertion of Clause (w) in sub-section (1) of Section 25 of
the Act, according to which, a candidate, who fails to file an
affidavit containing the details of the antecedents, assets,
liabilities etc. at the time of nomination, shall be a ground of
disqualification. Along with the above amendment, sub-
section (5) was added to Section 25 of the Act making the
submission of false information or its concealment in the
affidavit to be a punishable offence visited with substantive
imprisonment. In other words, after the previously
introduced Ordinance in 2021, necessary amendment was
brought into the Act by way of Clause (w) in sub-section (1)
of Section 25 of the Act as a ground of disqualification, if in
case, a candidate to an election fails to furnish details of the
assets, liabilities etc. at the time of nomination. So, the plea
of the petitioner that there has been an Ordinance and that it
has not been ratified by the Legislative Assembly, hence,
the petitioner cannot be said to have invited disqualification
under Section 25(1)(w) of the Act is misconceived for the
fact that necessary amendment was carried out through the
Odisha Panchayat Laws (Amendment) Act, 2022. Even
otherwise, assuming for the sake of argument that the
Ordinance lapsed and that it could not be ratified within six
weeks by the Legislative Assembly, according to the Court,
any such action in terms of such an Ordinance does not
become invalid. Normally, when an Ordinance does not
remain valid after it has lapsed or ceased to operate, any
such actions, rights and liabilities created during its active
period may be considered valid under the doctrine of de
facto validity, as they do not automatically become
permanent. The Ordinance has the same force as a statute
but only for a duration and rights and obligations created
under it stays temporarily and hence, ceases to exist once it
lapsed. But, whether rights, privileges, obligations and
liabilities survive a lapsed Ordinance is a matter of juridical
construction. The courts are to consider if the actions are
reversible and whether its invalidation would cause public
inconvenience and it has to be a case-by-case assessment. In
the considered view, the Court actions that were concluded
and irreversible might remain valid, however, any such
action intending to create permanent right might not survive
the lapse meaning thereby that the status quo ante may be
restored. In the case at hand, any such declaration on
account of disqualification having been invited, it stands as
valid even though the Ordinance lapsed thereafter but
having found the introduction of the Odisha Panchayat
Laws (Amendment) Act, 2022, no such question remains for
consideration as Section 25(1)(w) of the Act having been
brought into the statute with the amendment, it invites
disqualification when a candidate fails to file an affidavit
revealing the details of the criminal antecedents, assets,
liabilities etc. at the time of nomination.
12. The next question is whether non-disclosure of bank
loans by the petitioner and her husband in the affidavit at the
time of nomination invites a serious consequence of
disqualification under Section 25(1)(w) of the Act. A
candidate must have to disclose his assets and liabilities
including loans, while filing the nomination paper. It is the
settled law that concealment or suppression of information,
such as, pending criminal cases or financial liabilities
deprives voters to an informed choice and can be a ground
for setting aside an election. It may even be a case of corrupt
practice, if concealment or suppression of any such vital
information has taken place. But it is equally a settled law
that while not every non-disclosure automatically
invalidates a nomination. A substantial non-disclosure,
which is likely to affect the voter's perception of the
candidate's integrity can be considered a defect of a
substantial character rendering the nomination invalid. Any
such decision on disqualification is, therefore, subject to
'substantial defect rule' and not that each and every non-
disclosure is to nullify a nomination. In other words, if the
undisclosed bank loan is substantial, the omission is likely
to be considered a substantial defect under the Act justifying
the rejection of nomination or setting aside the election, as it
violates the voter's right to know about the candidate's
financial standing. With the above view point of the Court,
the case laws cited by Mr. Samal, learned counsel for the
petitioner needs a reference.
13. In Smt. Bauri Dehuri (supra), it has been concluded by
this Court that Section 39(2) of the Act makes it clear that
even if there has been any irregularity on the part of the
Election Officer responsible for carrying out the provisions
of the Act and Rules framed thereunder, unless such
mistake, error, irregularity or informality materially affected
the result of the election, the same should not be declared
void merely on the ground of any such mistake or
irregularity. The votes cast in the names of dead persons, in
absence of a definite pleading or proof as to in whose favour
it was cast, the Apex Court therein the case held that even if
there has been any such irregularity on the part of the
Election Officer in complying the provisions of the Act and
Rules, the election is not to be declared invalid in absence of
any such proof of the result to have been materially affected
as a consequence. A similar view has been expressed in
Goreti Xess (supra) and therein, the decision in Sridhar
Jena Vrs. Santosh Kumar Jena & others (2010) 1 OLR
486 was referred to, wherein, it was concluded that the
returned candidate even though alleged to have suppressed
pendency of criminal case against him in view of the State
Election Commissioner's Notification No.1 dated 1 st
January, 2024, such suppression cannot be a ground for
rejecting the nomination paper and for that, he may be
criminally prosecuted and it was also not amounting to
corrupt practice and as such, his election cannot be declared
void on such ground. Reference has been made to sub-
section (2) of Section 39 of the Act in Goreti Xess (supra)
to reach at a conclusion that non-disclosure of pendency of
criminal antecedent by the returned candidate must
necessarily establish that the result of the election to have
been materially affected. In Patuari Padhan (supra), this
Court, more or less in an identical situation, concluded that
the election of the returned candidate cannot be declared
invalid. A reference of a decision of the Apex Court in
Kisan Shankar Kathore Vrs. Arun Dattatray Sawant &
others (2014) 14 SCC 162 has been made therein, where, it
has been held and observed that non-disclosure of facts
would not be a material lapse unless it is a substantial or
suppression of information considered significant. One more
decision is referred to therein of the Apex Court in Karikho
Kri (supra) and therein, it has been observed that non-
disclosure of each and every asset owned by a candidate
could not amount to a defect, much less, a defect of
substantial character and it is not necessary to declare every
item or immovable property that he or his dependent family
members owned, unless the same is of such value so as to
constitute a sizeable asset in itself and required to be
disclosed.
14. In Mangani Lal Mandal (supra), while dealing with a
similar question on disqualification under the provisions of
the Representation of the People Act, 1951, it has been held
by the Apex Court that a mere non-compliance or breach of
the Constitution or the statutory provisions by itself does not
invalidate election of the returned candidate under Section
100(1)(d)(iv) thereof as the sine qua non for declaring the
election of a returned candidate to be void on the ground as
above needs further proof of the fact that such breach or
non-observance materially affected the result of the election.
In Karikho Kri (supra), the Apex Court further held that
not every non-disclosure, irrespective of its impact and
gravity, automatically amount to defect of substantial nature
thereby materially affecting result of the election or
amounting to undue influence so as to qualify as a corrupt
practice.
15. Mr. Samal, learned counsel for the petitioner would
submit that the loan accounts of the petitioner and her
husband even though not disclosed in the affidavit at the
time of nomination, the same is unlikely to invalidate the
election result in absence of any such pleading on record to
the effect that such failure or suppression of facts has
materially affected the outcome of the election. It is not in
denial that no such information was shared by the petitioner
in the affidavit while submitting her nomination paper
before opposite party No.2. A copy of the original receipt of
nomination filed by the petitioner has been marked as Ext.1.
Furthermore, the RTI information was obtained by opposite
party No.1 and proved as Ext.2 in support of the plea of
disqualification vis-à-vis the petitioner. Insofar as the loans
availed by the petitioner and her husband are concerned,
there was a plain denial but it received corroboration with
the examination of the Branch Manager of the concerned
Bank as P.W.2 and the Secretary of the Kankadahad
Cooperative Society as P.W.3 with necessary documents
proved as Exts.4 & 5. From the evidence on record, it
cannot be denied that the petitioner and her husband had
loan accounts and dues outstanding at the time of
nomination filed on 22nd January, 2022, the date on which, it
was subjected to scrutiny by opposite party No.2. As earlier
stated, the affidavit filed by the petitioner regarding any
such financial liability did not reveal anything, as the
relevant column was shown as 'Nil'. The evidence led by
opposite party No.1 through P.Ws.2 & 3 proved that the
petitioner was having financial liability to the tune of
Rs.40,554/- as on 15th April, 2021. It is claimed that the loan
account of the husband of the petitioner was closed some
time thereafter but fact remains, on the date of nomination,
the petitioner and her husband have had financial liabilities
by way of loans and it was not revealed in the affidavit. In
such view of the matter, whether on account of the non-
disclosure of the above information, the petitioner's election
to the post of Sarpanch is to be declared invalid in terms of
Section 25(1)(w) read with Section 39(1) of the Act.
16. On a reading of the election petition, it is pleaded by
opposite party No.1 therein that the petitioner was having
loan with outstanding dues for an amount of Rs.40,554/-
against her as on 15th April, 2021 in the Bank of India,
Kamakhyanagar Branch, Kamakhyanagar. It is also alleged
that the husband of the petitioner is a loanee in Service
Cooperative Societies Ltd., Kankadahad under Angul
United Central Bank, Angul, the fact, which was concealed
by her in the affidavit vis-a-vis Government dues payable to
the financial institutions shown as 'Nil' and hence, it has
violated Section 25(1)(w) of the Act. Save and except the
above, there is no pleading to the effect that the non-
disclosure of the above information regarding the loan dues
pending against the petitioner and her husband has in a way
significantly affected the result of the election. As earlier
discussed, each and every non-disclosure does not amount
to substantial non-compliance thereby materially affecting
the result of the election. If large extent of assets or huge
loan outstanding dues if not revealed by a candidate, it
would amount to suppression of facts and for such non-
disclosure, it would invite disqualification. Such breach in
observance of the provisions of the Act by not disclosing the
assets of high value or financial liabilities for a huge amount
could lead to a conclusion that there has been concealment
of facts and it amounts to undue influence even to qualify as
a corrupt practice adopted by the returned candidate.
17. In Karikho Kri (supra), it has been categorically held
and observed that even though the voters who have a 'right
to know', such right is not absolute but at the same time, a
candidate contesting the election must have to be forthright
about his disclosure vis-à-vis assets, liabilities etc. It has
also been observed therein that there is no blanket
proposition that a candidate is required to reveal everything
threadbare for examination of the electorates and has a right
to privacy as regards matters, which are of no concern to the
voter or totally irrelevant to his candidature for the public
office. In a given circumstance, if a non-disclosure is a
substantial defect, in the humble view of the Court, it
amounts to suppression of material facts as it could likely to
influence the decision of the voters at the time of election
but each and every revelation would be of no relevance to
them. A suppression of fact regarding loan dues payable by
the petitioner and her husband at the relevant point of time
when the nomination paper was submitted does not relate to
any huge outstanding dues. Of course, it was for the
petitioner to reveal such information, while filing the
affidavit at the time of nomination but non-disclosure of
such a fact for and in respect of the loan accounts, which is
not too high an outstanding dues payable by her, this Court
is of the considered view that in absence of any such
pleading on record and evidence adduced by opposite party
No.1 in the election proceeding to prove the fact that it has
considerably affected the result of the election, the
disqualification of any such non-observance of the
satisfactory provision could not have been directed. Such is
the conclusion of the Court in view of the decisions of the
Apex Court discussed herein above. The Court is of the
conclusion that suppression of fact must have to be of a
substantial character and in the case at hand, the petitioner
having not shared the information regarding the loan dues
though duly proved by opposite party No.1, in absence of
any such pleading and evidence on record to show that it has
influenced the voters and has materially affected the result
of the election, her disqualification under Section 25(1)(w)
of the Act and in terms of Section 39(1) thereof cannot be
justified.
18. In fact, the decision on disqualification in accordance
with Section 39(1) of the Act is subject to sub-section (2)
thereof and declaring an election as void must have to be on
the basis of any such mistake, error, illegality or informality
which has led to a situation that materially affected the
result of the election. By being alive to the settled position
of law discussed earlier, even though there has been non-
disclosure regarding loan account and dues outstanding
against the petitioner and her husband in the affidavit filed
at the time of nomination, in absence of any substantial
defect and that such non-disclosure shown to have
materially affected the election result by influencing the
voters, any such decision by the learned courts below cannot
be sustained in law.
19. Accordingly, it is ordered.
20. In the result, the writ petition stands allowed. As a
necessary corollary, the decision in Election Misc. Case
No.07 of 2022 dated 30th November, 2023 of the learned
Civil Judge (Junior Division), Kamakhyanagar vide
Annexure-3 and the impugned judgment dated 7th February,
2024 as at Annexure-4 in F.A.O. No.16 of 2023 by the
learned Additional District Judge, Kamakhyanagar are
hereby set aside for the reasons stated hereinabove.
(R.K. Pattanaik)
Judge
Manoj
