Manoj Kumar Panda ... Election vs K.Anil Kumar on 21 February, 2025

[Cites 26, Cited by 0]

Orissa High Court

Manoj Kumar Panda ... Election vs K.Anil Kumar on 21 February, 2025

Sashikanta Mishra,J. This application has been filed by the sole respondent of the above Election Petition under ELEPT 19 of 2024 Page 1 of 38 Section 86 of the Representation of People Act,1951 read with Order VI, Rule 16, Order VII, Rule 11 and Section 151 of the C.P.C. with the following prayer;

"It is therefore, prayed that this Hon'ble Court may graciously be pleased to pass order to struck out/delete the pleadings made in paragraph 8 (A) to 8(J) of the Election Petition and/or to reject/dismiss the Election Petition in its entirety for want of cause of action;

And pass such order order/orders and/or direction/directions, as would deem fit and proper."

2. The Election Petition in question has been filed by the Election Petitioner with prayer to declare the election of K. Anil Kumar (sole respondent) from 130 Berhampur Assembly Constituency to the Odisha State Legislative Assembly as void and to set aside the same as also to direct the Election Commission of India to hold re-election in the said constituency. Pursuant to summons issued by this Court upon admission of the Election Petition, the sole respondent entered appearance and filed his written statement along with ELEPT No. 19 of 2024 Page 2 of 38 the instant application. The Election Petition has been filed on grounds set out in Paragraph-8 of the Petition.

3. The present I.A. has been filed basically on the following grounds;

(i) The pleadings do not disclose all material facts constituting a valid cause of action resulting in non-

compliance of Section 83 (1)(a) of the R.P. Act.

(ii) No affidavit in Form 25 has been filed by the Election Petitioner despite alleging corrupt practice.

(iii) The defects pointed out in the Election Petition are not of substantial character entailing rejection of nomination.

4. 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 pointed out, the same are curable in ELEPT 19 of 2024 Page 3 of 38 nature. Since the Election Petitioner has not alleged any corrupt practice committed by the Respondent, the question of filing affidavit in Form 25 does not arise. The pleadings are based on the affidavit in Form 26 submitted by the Respondent at the time of his nomination. Further, Section 83 of the Act does not require filing of any document.

5. The specific grounds raised in the instant application and the objections of the Election Petitioner thereto shall be discussed point-wise later. It would be apposite at the outset to refer to the relevant statutory provisions to keep the issues in perspective.

Section 83 of the Representation of the People Act, 1951 reads as follows;

"83.Contents of petition.

(1) An election petition-

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and ELEPT No. 19 of 2024 Page 4 of 38

(c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

[Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.] (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."

Section 87 provides that 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 to the trial of suits.

Order VI Rule 16 of C.P.C. reads as follows;

"Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading- (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or (c) which is otherwise an abuse of the process of the Court."

Order VII Rule 11 of C.P.C. reads follows;

"11. Rejection of plaint. The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently ELEPT 19 of 2024 Page 5 of 38 stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9:

[Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp- papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."

6. Having referred to the relevant statutory provisions, it would now be proper to keep in mind the settled position of law governing the field.

It is settled law that the provision under Section 83 of the Act is mandatory in nature inasmuch as it is obligatory for the Election Petitioner to plead all material facts and that omission to state even a single material fact can lead to an incomplete cause of action. Reference may be had in this regard to the judgment of the Supreme Court in the case of Samant N. Balkrishna and Anr. Vs. George Fernandez and Ors.; 1969 (3) SCC 238. In the case of Shri Udhav ELEPT No. 19 of 2024 Page 6 of 38 Singh vs. Madhav Rao Scindia; 1977 (1) SCC 511, it was held that all the primary facts which must be proved by a party to establish a cause of action or his defence are material facts. Furthermore, all facts which constitute the ingredients of corrupt practice alleged by the Election Petitioner must be specified. Nevertheless, it has also been held that whether in an Election Petition a particular fact is material or not and as such required to be pleaded is dependent on the nature of the charge levelled and the circumstances of the case.

7. Having kept in mind the above principles of law, this Court shall now proceed to consider the rival contentions put forth by the parties.

8. Heard Mr. Samvit Mohanty, learned counsel for the Respondent and Petitioner in the I.A. and Mr. D.P.Nanda, learned Senior counsel for the Election Petitioner and Opp.Party in the I.A. Mr.Gopal Agarwal, learned Senior counsel for District Election Officer.

9. Mr. Samvit Mohanty would argue that Section 83(1)(a) mandates that the Election Petition must ELEPT 19 of 2024 Page 7 of 38 disclose all material facts. Further, material facts are all necessary or basic facts which are necessary to prove the cause of action by the Election Petitioner or defence of the Respondent. Material facts are facts which if established, would give the Petitioner, the relief asked for and it depends upon the facts of each case. Mr. Mohanty has cited the judgment of the Supreme Court in the case of Ram Sukh vrs. Dinesh Agarwal; AIR 2010 SC 127, in this regard. He submits on such basis, the Election Petitioner claims that the Respondent's nomination was improperly accepted which is covered under Section 100(1) (d)(i) of the Act for non-compliance relating to Section 100(1)(d)(iv). As such, it was incumbent upon the Election Petitioner to plead facts specifying the breach of the provision of law, the manner of such breach and how the same has materially affected the result of the election. He also cites the Judgment of the Supreme Court in the case of Karikho Kri v. Nuney Tayong & others;2024 SCC Online SC 519 to contend that absence of any one of the aforesaid material facts would entail dismissal of ELEPT No. 19 of 2024 Page 8 of 38 Election Petition under Order VII, Rule 11 C.P.C. In the instant case, according to Mr. Mohanty, not a single averment has been made in the Election Petition as to how the alleged improper acceptance of nomination has materially affected the result of the election. It is settled law that when Clause (d) (i) of sub-section (1) of Section 100 is invoked, pleadings must show as to how the result of the election was materially affected by improper acceptance of the nomination form. He cites the judgment of the Supreme Court, in this context, in the case of Karim Uddin Barbhuiya v. Aminul Haque Laskar; (2024) 4 SCR 523. Mr.Mohanty further argues that mere bald and vague allegations without any basis will not amount to sufficient compliance of the requirement of stating material facts and that omission to state even a single material fact would lead to an incomplete cause of action. The decision of the Supreme Court in the case of Kanimozhi Karunanidhi vs. A. Santhana Kumar and others; (2023) 4 SCR 798 and the judgment of M.P. High Court in the case of Ram Gareb and others vs. Ajay Arjun ELEPT 19 of 2024 Page 9 of 38 Singh; 2024 SCC Online MP 5332 have been relied upon in this context.

10. Mr. Mohanty has referred to the concise statement of material facts in the Election Petition under Paragraphs-8(A) to 8(J). According to him, the averments made in the said paragraphs lack material facts and material particulars are imprecise, unspecific, bald and lack substantial evidence. Moreover no documents supporting the allegations have been submitted. This, according to Mr.Mohanty, reveals a complete absence of a valid cause of action to maintain the Election Petition.

11. Per contra, learned Senior counsel Mr. Gopal Agarwal has argued that the voter/citizen has right to information under Section 33-A of the Act so as to make an informed choice of the right to vote in the elections. Therefore, the contesting candidates are required to furnish the details of criminal antecedents, assets and liabilities of self, spouse and dependents and failure to do so would be violation of ELEPT No. 19 of 2024 Page 10 of 38 Section 33-A as well as Article 19(1) (a) of the Constitution of India. Mr. Agarwal relies upon the judgments of Supreme Court in the case of Resurgence India Vs. Election Commission of India and another; 2014(1) OLR SC 102, Kisan Shankar Kathore Vs. Arun Dattatray Sawant and others; (2014) 14 SCC 162 and Mairembam Prthiviraj Vs. Pukhrem Sharatchandra Singh; (2017) 2 SCC 487. On such basis, Mr. Agarwal would argue that the Election Petitioner has pleaded in detail under Paragraphs 8(A) to 8(J) of the Election Petition as to how the Respondent has made false, incorrect and misleading disclosures and also suppressed material information with regard to movable and immovable assets of self, spouse and dependents in the affidavit in Form No.26 along with his nomination paper. So, had his nomination been rejected by the Returning Officer or if the Election Petitioner is able to prove such assertions, it would result in declaring the election of the Respondent void. According to Mr. Agarwal therefore, the Election Petitioner having pleaded the ELEPT 19 of 2024 Page 11 of 38 material facts along with the assertion that the same has materially affected the result of the election, the same gives rise to triable issues for which the petition for rejection of the plaint is untenable.

Mr. Agarwal further argues that though the Respondent has alleged that the Election Petitioner by stating that the Returning Officer acting at the behest of the respondent had improperly and illegally accepted the nomination paper which amounts to a corrupt practice for which affidavit in Form 25 should have been filed as per Rule 94-A of the Conduct of Elections Rules, the same actually does not amount to a corrupt practice. Even assuming that it is a corrupt practice, the same is a curable defect. Mr. Agarwal has relied upon the following judgments of the Supreme Court in this context;

1.Sambhu Prasad Sharma v. Charandas Mahant; AIR 2012 SC 2648.

2.Kanimozhi Karunanidhi v. A. Santhana Kumar & Oth.;(2023) 4 SCR 798.

3. Karikho Kri v. Nuney Tayong & Oth; 2024 SCC OnLine SC 519.

ELEPT No. 19 of 2024 Page 12 of 38

4. Karim Uddin Barbhuiya v. Aminul Haque Laskar; (2024) 4 SCR 523.

5.High Court of Madhya Pradesh at Jabalpur - EP NO. 6 OF 2024 & EP NO. 7 OF 2024.

6.Ram Sukh vs. Dinesh Aggarwal; AIR 2010 SC 127.

12. Coming to the specific paragraphs of the Election Petition, in so far as Paragraph-8(A) is concerned, Mr. Mohanty has argued that the pleadings do not show how there was violation of Section 33-A of the Act nor of Rule 4-A of the Conduct of Elections Rules, 1961. The pleadings also are silent as to if the Election Petitioner and/or his Agent had filed objection before the Returning Officer at the time of scrutiny of nomination.

In reply, Mr. Gopal Agarwal argues that the Election Petitioner had filed two affidavits dtd.20.4.2024 and 22.4.2024 in Form No.26, which he downloaded from the Web Portal of the Election Commission of India. It was found that both the affidavits contained false, incorrect and misleading ELEPT 19 of 2024 Page 13 of 38 information/declaration by the respondent but the Returning Officer illegally accepted the nomination paper. This improper and illegal acceptance of the nomination papers and the affidavits by the Returning Officer at the behest of the Respondent has materially affected the result of the election. According to Mr. Agarwal, the above pleading is clear and specific. The Election Petitioner has referred to the two affidavits filed by the Respondent containing false and misleading information/declaration, which the Election Petitioner shall attempt to prove during trial. So, according to Mr. Agarwal, it raises a triable issue.

13. This Court has perused the pleadings under Paragraph-8(A), which states that the two affidavits filed on 20.4.2024 and 22.4.2024 in Form 26 by the Respondent is in violation of Section 33-A of the Act read with Rule 4-A of the Conduct of Elections Rules. According to the Election Petitioner, said affidavits contain false, incorrect and misleading information/declaration. The details of such ELEPT No. 19 of 2024 Page 14 of 38 false/misleading information have been further enumerated in the subsequent paragraphs. Therefore, Paragraph-8(A) has to be read conjointly with the other paragraphs. The argument advanced by Mr.Mohanty referring only to Paragraph-8(A) cannot therefore, be accepted.

14. Paragraph-8(B) essentially relates to the same issue as covered under Paragraph-8(A) and therefore, the same are not required to be examined further. However, according to the Respondent-petitioner, the allegations made in Paragraph-8(B) relate to corrupt practice and therefore, the details ought to have been pleaded. In this regard, Mr.Mohanty would refer to Paragraph-8(B) and particularly to the portion thereof where it is alleged that the Returning Officer, at the behest of the Respondent, deliberately, illegally and improperly accepted the nomination paper of the Respondent. Mr.Mohanty also refers to Section 123(7) of the Act in this regard.

ELEPT 19 of 2024 Page 15 of 38

Mr.Gopal Agarwal, on the other hand, would argue that the Election Petitioner has not alleged corrupt practice within the meaning of Section 123 of the Act at all. The allegations relate to the false and misleading information given by the Respondent in the affidavit in Form 26 at the time of nomination and that the same should not have been accepted by the Returning Officer. The allegation of improper acceptance of nomination paper of the Respondent by the Returning Officer is not intended to be projected as a corrupt practice.

15. Law is well settled that if there is allegation of corrupt practice then all material facts constituting the corrupt practice according to the Election Petitioner ought to have been specifically pleaded. 'Corrupt practice' has been defined under Section 123 of the Act and sub-section 7 reads as follows;

"Section 123(7) The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person [with the consent of a candidate or his election agent), any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's election, ELEPT No. 19 of 2024 Page 16 of 38 from any person in the service of the Government and belonging to any of the following classes, namely:-

a) gazetted officers;

b) stipendiary judges and magistrates;

c) members of the armed forces of the Union;

d) members of the police forces;

e) excise officers;

f) revenue officers other than village revenue officers known as lambardars, malguzars, patels, deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated by a share of, or commission on, the amount of land revenue collected by them but who do not discharge any police functions; and

g) such other class of persons in the service of the Government as may be prescribed:

[Provided that where any person, in the service of the Government and belonging to any of the classes aforesaid, in the discharge or purported discharge of his official duty, makes any arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any candidate or his agent or any other person acting with the consent of /the candidate or his election agent (whether by reason of the office held by the candidate or for any other reason), such arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of the prospects of that candidate's election."

A careful reading of the allegations made in Paragraph-8(B) does not in the least indicate that there was any such allegation that the Respondent had influenced the Returning Officer and obtained any assistance for furthering his prospects. On the contrary, the pleadings merely indicate that the ELEPT 19 of 2024 Page 17 of 38 affidavits filed by the Respondent being false and misleading should not have been accepted. It is needless to mention that this aspect has to be proved at first. If proved, it would be held to be a mistake committed by the Returning Officer but in the absence of any specific allegation that same was committed deliberately to further the prospects of the candidate in the election, it cannot qualify as a corrupt practice so as to fall within the mischief of sub-section (7) of Section 123. Law requires the Election Petitioner to file an affidavit in Form 25 with regard to the allegations of corrupt practice. Since this Court does not find that the Election Petition contains any allegation of corrupt practice, there was no question of filing any affidavit in Form 25. In such view of the matter, the argument advanced by Mr.Mohanty with regard to the pleadings in Paragraph-8 (B) are not tenable.

16. As regards Paragraph-8(C), it is argued by Mr. Mohanty that the pleadings therein do not explain as to how non-disclosure of the date of deposit and other ELEPT No. 19 of 2024 Page 18 of 38 particulars of the Bank and Bank accounts of the Respondent and his spouse in Column 7(A)(ii) of the affidavit in Form 26 has materially affected the result of the Election, has not been stated. Further, no supporting documents have been filed to show that the Respondent had willfully suppressed or gave incorrect information in this regard.

Per contra, Mr. Gopal Agarwal would argue that the object of disclosure with regard to the deposits etc. in the relevant column of the affidavit in Form 26 is to make the voters aware of the financial position of the candidate and non-disclosure thereof is fatal to the nomination. According to the Election Petitioner, the Respondent had not disclosed the details of deposits/investments including serial number, amount, date of deposit, the scheme, name of the Bank and branch, the nature of deposits etc. in the relevant column. According to him, the particulars disclosed are incomplete and in the absence of the date of deposit and the name of the branch of the Bank, it is not possible for the voter to know the correct details ELEPT 19 of 2024 Page 19 of 38 thereof. So, such incomplete disclosure amounts to false and misleading declaration, which was illegally accepted by the Returning officer. Had these aspects been considered by the Returning Officer, the nomination of the respondent would not have been accepted and therefore, the same would have materially affected the result of the election.

17. After considering the rival contentions, this Court finds considerable force in the submission of Mr. Agarwal that all necessary particulars as required to be incorporated in the affidavit in Form 26 under Clause- 7 were, according to the Election Petitioner, not given. Whether this would amount to contravention of the statutory mandate, thereby invalidating his candidature is a matter to be decided during trial. The Election Petition cannot therefore, be thrown out at the threshold on this ground nor the pleadings be struck out.

18. With regard to the pleadings in Paragraph-8(D) of the Election Petition, it is stated that the same do ELEPT No. 19 of 2024 Page 20 of 38 not disclose as to how the alleged suppression/non- disclosure of the book value of the shares as per books of the company in Column-7 (A)(iii) in the affidavit in Form No.26 materially affected the result of election and no supporting documents have been filed in support of such allegations. Mr.Mohanty, learned counsel appearing for the Respondent-petitioner submits that unless it is shown that the alleged non- disclosure had the effect of materially affecting the result of the election, the pleading has no basis and therefore, deserves to be struck out.

Mr.Gopal Agarwal, on the other hand, would argue that the whole object of requiring the candidate to file affidavit in Form 26 is to provide the voters with complete information of the financial position of the candidate in the fray so that they can take an informed decision to either choose or reject him in the election. Therefore, any suppression or non-disclosure of a material fact by the candidate in Form 26 can have the effect of wrongly influencing the decision of the voters. ELEPT 19 of 2024 Page 21 of 38 The Election Petitioner has adequately pleaded as to how the Respondent was guilty of suppression/ non- disclosure with regard to the book value of the shares held by him.

19. Column 7(A)(iii) of Form 26 referred to in Paragraph-8(D) requires details to be disclosed with regard to the investment made by the candidate in bonds, debentures/shares etc. and also mandates that the value of the same as per the current market value shall be given. The Respondent has declared Rs.1066300/- for Rs.10663/- shares but has not disclosed the book value of the said shares as per the books of the company. Whether the same is a material omission and if so what effect it would have on the nomination of the candidate is obviously a matter to be decided at the trial. The Election Petitioner has pointed out the factum of suppression/non-disclosure in his pleading, which according to the considered view of this Court, is sufficient to constitute a valid cause of ELEPT No. 19 of 2024 Page 22 of 38 action. The contention raised in this regard by the Respondent is therefore, not acceptable.

20. With regard to the pleadings in paragraph-8(E), it is stated that the Election Petition does not disclose as to how the alleged suppression/non-disclosure of the details of total premium, name of branch, date of commencement etc. of the L.I.C. policies of the Respondent materially affected the result of the election. According to Mr.Mohanty, learned counsel for the Respondent, all relevant particulars of different L.I.C. policies purchased and held by the Respondent were disclosed in the affidavit in Form 26 and if any particulars were omitted how the same would materially affect the result of the election has not been stated by the Election Petitioner.

Mr. Agarwal, on the other hand, makes similar arguments as in respect of the previous allegation to the effect that unless all relevant particulars are given by the candidate there is a possibility that the voters would be misled. It is for such reason that the statute ELEPT 19 of 2024 Page 23 of 38 has prescribed an elaborate form (Form No.26) to be submitted by the candidate under affidavit. In the instant case, it is the stand of the Election Petitioner that though the Respondent gave details of the L.I.C. policies held by him yet, the relevant particulars were not given, which can be treated as non-

disclosure/suppression of material facts.

21. Reading of Paragraph-8(E) reveals that the Election Petitioner has referred to different L.I.C. polices held by the Respondent along with their dates of commencement, amount of premium etc., but the total premium amount, name of branch, date of commencement etc. have not been given. This, prima facie, supports the view that the necessary details are wanting.According to the considered view of this Court, this is adequate to maintain the Election Petition.As regards the stand that the Election Petitioner has not disclosed as to who conducted the inquiry, date of inquiry and the source of information and basis of inquiry etc., the same is not material inasmuch as the ELEPT No. 19 of 2024 Page 24 of 38 Respondent has himself disclosed the particulars of the L.I.C. policies in his affidavit in Form No.26 and the Election Petitioner has only pointed out the gaps and the facts that have not been disclosed. The fact that he has pleaded about conducting an inquiry is a matter to be proved by him during trial. It would suffice at this stage to maintain the application by pleading that he came to know of the above from his own inquiries.

22. As regards the pleadings in Paragraph-8 (F), it is stated that non-furnishing of the details of the motor vehicle and its price cannot be treated as a factor affecting the result of the election in the absence of anything being pleaded by the Petitioner to show how. Moreover, the actual price of the vehicle in question has not been given. Mr. Mohanty would argue that unless the Election Petitioner states the value of the car, which according to him is the correct value, it cannot be said that the value shown by the Respondent in the affidavit is wrong. According to Mr. ELEPT 19 of 2024 Page 25 of 38 Mohanty therefore, the pleading is non-specific and vague.

Mr.Gopal Agarwal, on the other hand, would argue that the requirement of Form 26 in the relevant Column is to give the details of the Motor Vehicle with regard to its make, registration number, year of purchase and the amount. According to the Election Petitioner, the value given is wrong.

23. Reference to Column 7 (A) (vi) of Form 26 reveals that the same requires the candidates to furnish the information i.e., motor vehicles/aircrafts/ yachts/ships (details of make, Registration Number etc., year of purchase and amount). According to the Election Petitioner, the Respondent has declared under Column No.7(A) (vi), a Toyota Car bearing No.0D-07- AE-4499, the year of purchase as 2021 and the amount as Rs.818607 (approx.). Though the Election Petitioner says that the amount of Rs.818607/- is false, but on what basis, has not been stated. Unless, it is specifically pleaded that the amount of purchase is ELEPT No. 19 of 2024 Page 26 of 38 not as declared but is a different amount being specifically stated, it cannot be accepted that there was any false declaration. It is settled law that material facts are also positive averment of a negative fact. The following observations of the Supreme Court in the case of Harishankar Jain v. Sonia Gandhi; (2001) 8 SCC 233 are noteworthy in the context.

"Section 83(1)(a) of RPA, 1951 mandates that an election petition shall contain a concise statement of the material facts on which the petitioner relies. By a series of decisions of this Court, it is well settled that the material facts required to be stated are those facts which can be considered as materials supporting the allegations made. In other words, they must be such facts as would afford a basis for the allegations made in the petition and would constitute the cause of action as understood in the Code of Civil Procedure, 1908. The expression "cause of action" has been compendiously defined to mean every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of court.

Omission of a single material fact leads to an incomplete cause of action and the statement of claim becomes bad.

The function of the party is to present as full a picture of the cause of action with such further information in detail as to make the opposite party ELEPT 19 of 2024 Page 27 of 38 understand the case he will have to meet. (See Samant N. Balkrishna v.

George Fernandez18, Jitendra Bahadur Singh v. Krishna Behari¹9.) Merely quoting the words of the section like chanting of a mantra does not amount to stating material facts. Material facts would include positive statement of facts as also positive averment of a negative fact, if necessary. In V.S. Achuthanandan v. P.J. Francis this Court has held, on a conspectus of a series of decisions of this Court, that material facts are such preliminary facts which must be proved at the trial by a party to establish existence of a cause of action. Failure to plead "material facts" is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition. It is the duty of the Court to examine the petition irrespective of any written statement or denial and reject the petition if it does not disclose the cause of action. To enable a court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and nothing else. Courts have always frowned upon vague pleadings which leave a wide scope to adduce any evidence. No amount of evidence can cure basic defect in the pleadings."

Thus, merely by pleading that the value of the vehicle declared by the Respondent is false without ELEPT No. 19 of 2024 Page 28 of 38 further pleading as to how it is so by stating its true value, it cannot satisfy the rigors of Section 83(1)(a) of the Act. Not having pleaded so, the Election Petitioner obviously cannot lead any evidence on such score. This Court is therefore, of the considered view that the pleading in Paragraph- 8(F) is frivolous being vague and non-specific and does not give rise to a cause of action for which, it deserves to be struck out.

24. As regards the pleadings under Paragraph-8(G), it is stated that the Election Petition does not reveal the details in respect of the weight and value of gold and jewelery items of the Respondent and his spouse as mentioned in the relevant column of the affidavit and how the same amounts to a false declaration with regard to the weight and value thereof. The Election Petitioner does not say what was the correct weight and value of the gold, if not what was stated by the respondent in Form 26. According to Mr.Mohanty, the Election Petitioner has made a vague allegation and simply stated that the cost of gold as declared is much ELEPT 19 of 2024 Page 29 of 38 more than the declared amount without specifying what was the cost of gold. Mr. Agarwal would argue that the declaration made by the Respondent does not satisfy the requirement of the affidavit under Form No.26.

25. Reference to Clause-7(A)(vii) reveals that the candidate is required to declare the following; jewelry, bullion and valuable thing(s) (details of weight and value). As per Paragraph 8(G) of the Election Petition, Respondent declared gold 600 grams of the value of Rs.24 lakhs and in respect of his spouse, gold 700 grams of the value of Rs.28 lakhs. It is further stated that the cost of gold as declared is much more than the declared amount without specifying what was the actual amount. It is evident that unless the actual value of gold is given, it cannot be, prima facie, held that declaration of value by the Respondent was false or misleading. In view of the position of law referred to under Paragraph-23 of this Judgment as also the reasons indicated therein, the pleading under ELEPT No. 19 of 2024 Page 30 of 38 Paragraph-8(G) cannot be held as satisfying the strict requirement of pleadings in an Election Petition. This Court therefore, finds force in the contention that the pleading under Paragraph-8(G) is frivolous being vague and is therefore, liable to be struck out.

26. As regards the pleadings in Paragraph 8(H), it is stated that the same do not disclose how the non- disclosure with respect to land, building or apartment under Clause-7 (B) (iii) (iv) in Form 26 materially affected the result of election and that too without any supporting documents. Moreover, the Election Petition does not state the actual and correct value of land, building or apartment without stating the actual and correct value thereof. According to Mr. Mohanty, the Respondent had in full compliance of the statute declared all relevant particulars with regard to the properties held by him showing the amount of investment.

Mr. Agarwal, on the other hand, submits that though the Respondent declared 'yes' in respect of ELEPT 19 of 2024 Page 31 of 38 investment on land by way of development/construction etc. but did not declare the amount of such investment made for development/construction of commercial building. Further, in Col.iv with respect to residential buildings he has declared 'Nil' whereas in Sl. No.vi, he declares the current market value as Rs.1 crore as also under the column of his spouse.

27. Reading of Paragraph-8 (H) reveals that according to Election Petitioner, in Col.7(B)(iii) with respect to commercial buildings, the Respondent has mentioned 'Yes" and also against the Column "any investment on the property by way of development/construction etc.", but the approximate current market value as required in the last column has not been given. Similarly, in Col.7(B) (iv) in respect of residential buildings the Respondent has declared "Nil". Against Col. No.(vi), he has declared the total of current value as Rs.1 crore both under self and for spouse. The incongruity is apparent on the face of it ELEPT No. 19 of 2024 Page 32 of 38 and therefore, according to the considered view of this Court, gives rise to a cause of action.

28. As regards the pleading in paragraph 8(I), it is stated that the respondent has not submitted the title deed, R.O.R. of the immovable properties, the extent of land or property purchased by him, the factum of his possession etc. According to Mr.Mohanty, the respondent has given all particulars and details of the non-agricultural lands owned by him. Mr.Agarwal, on the other hand, submits that though the Respondent has declared 'Nil" in respect of non-agricultural land but certain lands, the details of which are mentioned in the said paragraph, are recorded in the names of some persons, who sold portions of the property to M/s.Spectrum Properties by registered sale deed dtd.30.12.2021. The Respondent is the Executant No.2 in the said sale deed. The above transaction having not been disclosed in the affidavit amounts to non- disclosure.

ELEPT 19 of 2024 Page 33 of 38

29. After considering the contentions advanced by the parties, this Court is of the view that the Election Petitioner, by referring to the transactions in question has, prima facie, alleged that the same was not- disclosed by the Respondent in the affidavit. The onus of proof is therefore, on the Election Petitioner at the time of trial. At this juncture, it is suffice to give the relevant particulars of the transaction. This Court is therefore, of the view that the pleading in Paragraph 8(i) reveals a valid cause of action.

30. As regards the pleading in paragraph-8(J), it is stated that the Election Petitioner has not stated how the abstract of details in Part-B of Form 26 filed by the respondent is illegal or which particular declaration amounts to false declaration, which was illegally accepted by the Returning Officer. It also does not disclose as to how and which provision of law was violated. Mr.Mohanty submits that the pleadings are vague and non-specific, which cannot give rise to any cause of action. Mr. Agarwal, on the other hand, ELEPT No. 19 of 2024 Page 34 of 38 submits that Paragraph 8(J) is a sort of summation of the averments made in Paragraphs 8(A) to 8 (I) and therefore, it cannot be read in isolation.

31. Reading of Paragraph 8(J) reveals that according to the Election Petitioner, the abstract of the details given in Col. Nos.1 to 10 of Part (A) is false for which the nomination papers accepted by the Returning Officer is illegal. Reference to the pleading would reveal that according to the Election Petitioner, "the Respondent has made false declaration in Part-B of the affidavit filed in Form 26 for which the nomination papers accepted by the Returning Officer is illegal and improper. xxx xxx xxx xxx." Part (B) of Form 26 relates to abstract of the details given in 1 to 10 of part (A). In so far as the declarations given in different columns of Part (A) are concerned, the Respondent has already pleaded regarding the declarations made in all the columns under Paragraph- 8 (A) to (I) of the Election Petition. Which of those declarations are false and which amount to ELEPT 19 of 2024 Page 35 of 38 suppression/nondisclosure have already been stated. It was therefore, not necessary to repeat such facts. The argument advanced by Mr. Mohanty is therefore, not tenable.

32. Apart from the above, the Respondent also alleges that the pleadings under Paragraphs 9 to 12 of the Election Petition are bald, unspecific, not based on any documents, evidence and are therefore, liable to be struck out. The allegations are clear abuse of the process of the Court. In this context, Mr. Mohanty would argue that if the aforementioned paragraphs are read conjointly, it will show that the Election Petitioner has made vague and non-specific allegations without any material basis. Mr. Agarwal, on the other hand, would submit that the averments in paragraphs-9 to 12 are nothing but summation of whatever was pleaded under the preceding paragraphs i.e., 8(A) to 8(J) and no new allegation was made therein.

33. Reading of paragraphs 9 to 12 would show that the Election Petitioner has, in fact, reiterated his ELEPT No. 19 of 2024 Page 36 of 38 allegations already covered under Paragraphs 8(A) to 8 (J) and has made a sort of summation of the said allegations. In addition, the Election Petitioner has also pleaded about the object of the requirement to disclose all facts in Form 26. After considering the contentions advanced, this Court is of the considered view that Paragraphs-9 to 12 cannot be treated as non-specific or bald in any manner being directly relatable to the specific allegations made in Paragraphs-8(A) to 8 (J).

34. Thus, from a conspectus of the analysis of pleadings and the contentions advanced by the parties as narrated above, this Court is not persuaded to accept the argument that the Election Petition does not disclose a cause of action or that the pleadings contained therein, save and except those under Paragraphs 8F and 8G, are in any manner unnecessary, scandalous, frivolous or vexatious and/or such as may tend to prejudice, embarrass or delay the fair trial of the suit or are otherwise an abuse of the Court so as to invoke power under Order VI, ELEPT 19 of 2024 Page 37 of 38 Rule 16 to strike out the same. However, for the reasons indicated at the appropriate place, this Court deems it proper to strike out the pleadings under Paragraphs 8F and 8G of the Election Petition. Further, in view of what has been narrated hereinbefore, this Court finds that all other allegations contained in the Election Petition constitute valid cause of action and raise triable issues for which the same does not warrant rejection at the threshold by exercising power under Order VII Rule 11 of C.P.C.

35. The I.A. is disposed of accordingly.

.................................. Sashikanta Mishra, Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Feb-2025 16:16:27 ELEPT No. 19 of 2024 Page 38 of 38

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Orissa High Court