Orissa High Court
Afr Kishore Kumar Nayak .... Election vs Byomkesh Nayak And Ors on 8 August, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. No. 6 of 2025
(ARISING OUT OF ELPET No.8 of 2024)
(An application 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)
AFR Kishore Kumar Nayak .... Election Petitioner
-Versus-
Byomkesh Nayak and Ors. .... Respondents
Advocate(s) appeared in this case:-
_______________________________________________________
For Election Petitioner : M/s. N.K Sahu, B. Swain, A. Panda,
S.S.Sahu, A. Modi & S. Sahu,
Advocates.
For Respondents : M/s. U K Samal, M.R. Mohapatra,
S.P. Patra, N. Samal, A.B. Tarini &
P.K. Mohapatra, Advocates
(For R-1)
Bidyadhar Mishra, Sr. Advocate
with M/s.Tarinikanta Biswal,
P. Bhardwaj, R.R. Panda & B.S.
Panigrahi, Advocate
(For R-2)
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
JUDGMENT
8th August, 2025 Page 1 of 59 SASHIKANTA MISHRA, J.
The present application has been filed by the Respondent no.1 in 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. Through this application, the Respondent prays for striking out the pleadings contained in Paragraphs 6 (A) to 6 (G) 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 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. According to Respondent No.1, the present I.A basically raises the following questions;
A. Whether the Election Petition filed by the Election Petitioner- opp. Party No. l complies with mandatory requirement of law as envisaged under Sub-Sections Page 2 of 59 (1) and (3) of Section 81 of the Representation of the People Act, 1951.
B. Whether in the absence of complete material facts, the Election Petition shall be dismissed/ rejected? C. Whether in the absence of the full particulars, the Election Petition shall be dismissed/ rejected? D. 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?
E. 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 the 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?
F. Whether, for the non-disclosure of the source of information, the Election Petition shall be dismissed/ rejected?
G. Whether in the absence of 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? H. Whether this 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?
I. Whether the Election Petition is liable for rejection as the document on which the alleged cause of action based, has not produced?
J. Whether the pleading of the Election Petition and verification is in terms of the Representation of the People Act, 1951."
3. Written objection has been filed by the Election Petitioner basically stating that all material Page 3 of 59 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 and therefore, in order.
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 Respondent No.1(Petitioner in the I.A); Mr. B. Mishra, learned Senior Counsel with Mr. T.K. Biswal, learned counsel for the Respondent No.2 in the Election Petition and Mr. N.K Sahu, learned counsel for the Opposite Party(Election Petitioner).
7. Mr. Samal makes the following preliminary arguments:
Page 4 of 59
(i) The averments made in Paragraphs 1 to 5, Paragraphs 6 to 12, and Paragraphs 6-A to 6-G of the Election Petition merely recount general background information and do not set forth specific, material facts necessary to constitute a cause of action. It is submitted that, except for routine references to statutory notifications, filing of nominations, and declaration of results, the said paragraphs are vague, lacking in material particulars, and are replete with bald, frivolous, vexatious, and scandalous allegations, which amount to an abuse of the process of the Court and are therefore, liable to be struck out.
(ii) The participation of Respondent No.2 in opposing the application is objected on the ground that the application has been filed by Respondent No.1 as against the Election Petitioner and therefore, the lis at this stage is exclusively between these two parties. Respondent No.2 being in the nature of a co-defendant has no independent or substantive right to oppose the application. It is further contended that the provisions of Order VI Rule 16 CPC, which empower the Court to strike out pleadings, and Page 5 of 59 Order VII Rule 11 CPC, which provide for rejection of plaint, are procedural devices to be invoked and contested only by the parties directly affected thereby. In the absence of any specific statutory provision conferring upon a co-respondent the right to object to such an application, Respondent No.2‟s intervention at this stage is unwarranted and impermissible in law.
(iii) The Election Petitioner has failed to disclose complete and specific facts establishing his locus standi to challenge the election of the returned candidate. It is urged that the petition does not conform to the mandatory requirements of Section 81 of the Representation of the People Act, 1951, inasmuch as the Petitioner has neither claimed to be a contesting candidate nor disclosed himself to be an elector of the 47-Chandbali Assembly Constituency. In particular, it is pointed out that the Election Petitioner has omitted to furnish essential electoral particulars such as the voter identity card number, serial number in the electoral roll, and part number of the said roll, which are necessary for demonstrating his entitlement to present an election Page 6 of 59 petition. The absence of such particulars, according to learned counsel, renders the petition devoid of any cause of action and liable to be dismissed at the threshold.
It is further contended that due to non-compliance with the statutory pleading requirements, the petition is liable to be rejected under sub-section (1) of Section 86 of the Representation of the People Act, 1951. In elaboration, learned counsel points out that: (a) the voter‟s serial number in the voters‟ list, part number of the electoral roll of the constituency to which the returned candidate belongs, and the full address of residence have not been pleaded; (b) there is no averment that the Petitioner was entitled to vote at the election to which the petition relates; (c) the petition does not specifically plead any of the grounds for declaring an election void as set out under sub-section (1) of Section 100 or Section 101 of the Act; and (d) there is no pleading to the effect that the Petitioner is not disqualified under Section 16 of the Representation of the People Act, 1951.
Mr. Samal emphasises that the statutory framework under Section 81(1) of the Representation of the Page 7 of 59 People Act, 1951 read with Section 16 of the Representation of the People Act, 1951 mandates that an election petitioner must not only disclose his status as an elector but must also affirmatively plead that he is not disqualified under the 1950 Act. The absence of these foundational averments, it is argued, is fatal to the maintainability of the petition and attracts the consequence under Section 86(1) of the 1951 Act, namely dismissal of the petition in limine.
(iv) The copy of the Election Petition served upon him is not attested under the Petitioner‟s signature as required under Section 81(3) of the Representation of the People Act, 1951. According to Mr. Samal, the endorsement on the served copy does not fulfil the statutory requirement, inasmuch as it does not bear the attestation of the Petitioner himself certifying it to be a true copy of the original petition. It is urged that Section 81(3) mandates that every copy served upon the respondents must be attested by the Petitioner under his own signature as a „true copy‟ of the petition. In the present case, the Election Petitioner has not so attested the served copy, but the Page 8 of 59 attestation has been made by his Advocate, and even such attestation does not contain the necessary endorsement certifying it as „true copy‟.
Mr. Samal further submits that this defect is not a mere irregularity but goes to the root of compliance with Section 81(3) of the Act, and therefore, the petition is liable to be dismissed under Section 86(1) of the Act. In this context, Mr. Samal has relied upon the following judgments-
(a) Shariuddin v. Abdul Gani Lone1
(b) Narendra Bhikahi Darade v. Kalyanrao
Jaywantrao Patil and others2
(c) Satya Narain v. Dhuja Ram3
(d) Rajendra Singh v. Usha Rani4
(e) Mithilesh Kumar Pandey v. Baidyanath Yadav5,
(v) In terms of the proviso to Section 83(1)(c) of the
Act, an election petition alleging corrupt practices must be accompanied by an affidavit in the prescribed form in support of such allegations and their particulars. Rule 94-A of the Conduct of Election Rules, 1961 mandates that 1 1980) 1 SCC 403 2 AIR 2000 Bombay 362 3 (1974) 4 SCC 237 4 (1984) 3 SCC 339 5 (1984) 2 SCC 1 Page 9 of 59 such affidavit shall be sworn before a Magistrate of the First Class, a Notary, or a Commissioner of Oaths, and be in Form 25. In the present case, although corrupt practices have been alleged, the petition is not accompanied by the requisite affidavit in Form 25. Such non-compliance, according to Mr. Samal, is fatal to the maintainability of the petition and amounts to contravention of both Sections 81 and 83 of the Act, warranting dismissal under Section 86 thereof. In this context, Mr. Samal has relied upon the following judgments of Supreme Court:
(a) Samant N. Balkrishna v. George Fernadez and Ors. 6
(b) Ravindra Singh v. Janmeja Singh & Ors.7
(c) R.P Moidutty v. P.T Kunju Mohammad & Anr.8
(d) Anil Vasudev Sagaonkar v. Naresh Kushali Shiagaonkar9
(e) Ram Sukh v. Dinesh Agarwal10
(f) V. Narayan Swamy v. C.P Thiruna Vukkarasu11
(vi) In the absence of a specific pleading that the result of the election, in so far as it concerns the returned 6 (1969) 3 SCC 238 7 (2000) 8 SCC 191 8 (2000) 1 SCC 481 9 (2009) 9 SCC 310 10 (2009) 10 SCC 541 11 (2000) 2 SCC 294 Page 10 of 59 candidate, has been materially affected, the Election Petition is not maintainable and is liable to be rejected. It is submitted that a careful reading of the entire petition reveals that the Election Petitioner has nowhere averred how the result of the election, as it concerns the returned candidate, has been materially affected, which is mandatorily required under Section 100(1)(d) of the Representation of the People Act, 1951. This omission, according to learned counsel, goes to the root of the matter, as compliance with Section 100(1)(d) is a statutory precondition for challenging an election on that ground.
Mr. Samal places reliance upon the decision of the Supreme Court in Ram Sukh (Supra) in this context.
(vii) A combined reading of sub-section (1) of Section 81, read with Sections 82, 84, and 101 of the Representation of the People Act, 1951, makes it evident that the relief of declaring another contesting candidate ordinarily the one who has secured the second highest number of votes as duly elected, is available only in a petition filed by a contesting candidate. But where the election petition is filed by an elector, as in the present Page 11 of 59 case, such an additional declaration under Section 101 is not legally permissible. Mr. Samal argues that the statutory scheme contemplates that a voter-petitioner may call in question the election of the returned candidate but cannot claim the consequential relief of declaring another candidate elected, which is a relief confined to petitions presented by candidates themselves.
Mr. Samal further submits that the Election Petitioner, claiming to be an elector and not a contesting candidate, has nonetheless claimed the relief contemplated under Section 101 of the Act, thereby acting in contravention of the statutory framework. Such a prayer, according to learned counsel, is beyond the scope of Section 81 and consequently renders the petition liable to be dismissed. In support of his submission, reliance is placed by him on the decision of the Rajasthan High Court in Nag Raj Patodin v. R. Birla and Others12.
(viii) The Election Petition suffers from a fundamental defect inasmuch as it has been filed without 12 AIR 1969 Raj 245.
Page 12 of 59 annexing a single document in support of the pleadings of material facts. It is urged that the petitioner has not filed along with the petition any document to establish his own identity as an elector of the 47-Chandabali Assembly Constituency, nor has he produced the requisite notifications or forms relating to the conduct of the election, including the notification under Section 30 of the Representation of the People Act, 1951.
It is submitted by Mr. Samal that the petitioner has also failed to annex the Form-26 affidavit filed by the returned candidate before the Returning Officer at the time of filing nomination papers, or the affidavit of election expenditure filed by the returned candidate before the District Election Officer. In the absence of these primary documents, it is contended, the allegations made in the petition remain wholly unsubstantiated and incapable of being tested on merits. In this context, Mr. Samal relies on following judgments to support his contentions:
(i) Mithilesh Kumar Pandey v. Baianath Yadav & Ors.13
(ii) U.S. Sasidharan v. K. Karunakaran and Ors.14 13 (1984) 2 SCC 1 14 (1989) 4 SCC 482 Page 13 of 59
(iii) Prashant Kumar Singh v. Hakim Lal15 According to Mr. Samal, these omissions amount to a clear non-compliance with the mandatory requirements of Section 83 of the Representation of the People Act, 1951, which obligates the election petitioner to set forth full particulars of the alleged corrupt practices, accompanied by such supporting documents as are in his possession or power. It is argued that such non-compliance strikes at the root of the maintainability of the petition and attracts the consequence of dismissal under Section 86(1) of the Act.
Mr. Samal submits on the settled proposition that an election petition is not to be treated lightly, and strict compliance with the statutory scheme is a condition precedent for its survival. Where the petition is bereft of documents which constitute the very foundation of the allegations, it must necessarily be rejected at the threshold under Order VII Rule 11 of the Code of Civil Procedure, read with Section 86(1) of the Act.
15
2023 AHC 243220 Page 14 of 59
8. In response to the above contentions, Mr. N.K Sahu, learned counsel for the Election Petitioner, makes the following arguments:
(i) As regards the allegation that Paragraphs 1 to 5, Paragraphs 6 to 12, and Paragraphs 6-A to 6-G of the Election Petition are vague, frivolous, or scandalous, Mr. Sahu submits that a plain and holistic reading of the petition makes it evident that these paragraphs lay out the foundational facts, sequence of events, and statutory context necessary to appreciate the specific allegations of corrupt practices and statutory non-compliance made against the returned candidate. The narration of background facts, including references to statutory notifications, nomination process, scrutiny, and declaration of result, is not mere surplus usage but forms an essential prelude to the specific charges later articulated with precision in the petition.
It is further submitted that the Election Petition is required, as a matter of pleading discipline under Sections 81, 83, and 86 of the Representation of the People Act, 1951, to set forth material facts and particulars in a Page 15 of 59 logical sequence, which necessarily includes the factual background leading to the cause of action. The averments under challenge cannot be characterized as bald or vexatious, as they directly link the statutory framework and election process to the specific acts and omissions of the returned candidate. The allegations of suppression of material facts, filing of defective affidavits, misrepresentation of assets, and concealment of election expenditure are supported by concrete particulars, including dates, affidavit numbers, Khata numbers, and amounts involved.
(ii) As regard the objection regarding the locus standi of the Petitioner, Mr. Sahu asserts that in Paragraph 5 of the Election Petition the Petitioner has categorically stated on oath that he is a voter of 47-Chandbali Assembly Constituency. Once such a sworn statement has been made, the initial burden, if disputed, can be discharged at the time of trial by leading appropriate evidence. It is well settled that at the stage of pleadings, it is not necessary to plead every minute particular, and a clear averment regarding voter status suffices to establish his locus standi. Page 16 of 59 Therefore, the Election Petition cannot be dismissed under Section 81(1) of the Representation of the People Act, 1951 merely on the alleged ground of non-disclosure of voter identity card number, serial number, or part number in the electoral roll.
(iii) With regard to the objection to copy of the election petition served on the Respondent No.1 Mr. Sahu submits that the petition was filed with the requisite number of copies, duly served upon the respondents in accordance with the orders of this Court, and each page of the copy served on Respondent No.1 bears the signature of the Petitioner in a manner clearly indicating the intention to attest. This satisfies the requirement under Section 81(3) of the Act. Attention is also drawn to Chapter XXXIII of the Orissa High Court Rules, 1948, which prescribes a detailed procedure for the presentation, scrutiny, and admission of Election Petitions. The instant petition was duly scrutinised by the Registrar (Judicial), found in order, and admitted by this Court on 05.08.2024 after the Stamp Reporter found no defect. The objection raised under Section 81(3) is devoid of merit, especially in the absence of any prejudice Page 17 of 59 shown to have been caused to Respondent No.1. It is further argued that the term "copy" in Section 81(3) merely requires the served copy to be a true and faithful reproduction of the original petition, and that the signatures affixed thereon were clearly made animo attestandi, thereby fulfilling the statutory requirement.
(iv) On the issue of non-filing of affidavit under Section 83(1)(c) of the Act in the prescribed Form-25, Mr. Sahu submits that it is a curable defect, placing reliance on the case of Thangjam Arunkumar Vs. Yumkham Erabot Singh16, wherein the Supreme Court has held that non-filing of the affidavit in Form 25 is a curable defect and the learned Judge trying the election petition ought to have granted an opportunity to the election petitioner to file Form 25 Affidavit in addition to the existing Affidavit filed with the election petition. It is pointed out that the Election Petitioner has already filed I.A. No. 163 of 2024 seeking acceptance of the affidavit in Form-25, which is pending consideration. Therefore, the objection under Section 83(1)(c) is not sustainable in law.
16
(2023) 11 SCR 392 Page 18 of 59
(v) As to the contention that it has not been pleaded as to how the result of the election of the returned candidate has been materially affected, Mr. Sahu submits that Paragraphs 5-B and 5-G of the election petition contain specific averments in such regard. Likewise, in Paragraph 6-A(vi), there is a clear and specific pleading that the election of the returned candidate stood materially affected by the improper acceptance of his nomination. It is further contended that the legal position is well settled that, while challenging the election of a returned candidate, it is not necessary for the petitioner to set out in meticulous detail the precise manner in which the result was materially affected; it is sufficient if the material facts indicating such effect are pleaded. In such view of the matter, the contention of Respondent No.1 that the election petition is liable to be rejected for want of a specific pleading as to "the manner in which the result of the election of the returned candidate has been materially affected" is wholly unsustainable and non-est in the eye of law. In this context, Mr. Sahu relies on the following judgments -
Page 19 of 59
a) Madiraju Venkata Raman Raju v.
Peddireddigari Ramachandra Reddy & Ors.,17
b) Jumuna Prasad Mukhariya & Ors v. Lachhi Ram & Ors., 18
vi) As regards the contention that an elector cannot seek the same relief as a contesting candidate, Mr. Sahu submits that no principle of statutory construction can support the proposition that only a person who has contested the election may seek a declaration under Section 101 of the Representation of the People Act, 1951. He submits that a plain reading of Section 101 makes it clear that „any person‟ who has filed an election petition, and who has in addition to questioning the election of the returned candidate, sought a further declaration that he himself or any other candidate has been duly elected, is entitled to maintain such a prayer. When Section 101 is read conjointly with Section 84 of the Act, and in the light of the binding principles laid down by the Supreme Court it becomes abundantly clear that an elector, as an election petitioner, has a statutory right to claim a further declaration that any other candidate has been duly elected, 17 (2018) 14 SCC 1 18 (1954) 2 SCC 306 Page 20 of 59 even though the petitioner was not a contesting candidate in the election. In this context, Mr. Sahu relies on the following judgments -
a) Ajay Maken v. Adesh Kumar Gupta & Anr19. b) Jumuna Prasad Mukhariya (supra) (vii) Regarding non-filing copy of affidavit in Form 26,
Mr. Sahu submits that the election petition sets out, in clear and elaborate terms, the substance and contents of the documents relied upon particularly, Form-26 affidavit filed by Respondent No.1 at the time of nomination and the affidavit bearing No.1250 dated 29.06.2024 filed before the District Election Officer disclosing election expenditure. Paragraphs 6-A(i) to (vi) and Paragraph 6-B of the election petition refers to the contents of these documents that have been specifically pleaded and explained in detail. Further, in Paragraph 6-A(i), it is clearly averred that the affidavit in Form-26 is available in the public domain through the Election Commission of India‟s official web portal https://affidavit.eci.gov.in, thus negating any prejudice to the respondent.
19
(2013) 3 SCC 489 Page 21 of 59 He further submits that it is well-settled that non-supply of documents relied upon, when their contents are fully set out in the pleadings and the documents are otherwise accessible in the public domain, does not vitiate the maintainability of the petition. Mr. Sahu submits that this Court, while dealing with an identical objection in I.A. Nos. 83 and 84 of 2024 (arising out of ELPET No. 08 of 2024), by order dated 16.05.2025, has categorically held that:
"Mere non-production of the document by itself, according to the considered view of this Court, cannot be fatal to the Election Petition."
On such proposition he also relies on Mohan Rawale v. Damodar Tatyaba & Ors.20.
Additionally, he submits that under Rule 10 of Chapter XXXIII of the Orissa High Court Rules, 1948, once the pleadings are complete, the Judge hearing the election petition may fix a date for the production of documents. The scheme of the Rules thus contemplates that production of documents is to be regulated during the course of proceedings and not necessarily at the time of 20 (1994) 2 SCC 392 Page 22 of 59 presentation of the petition. Consequently, non-production or non-supply of documents at the initial stage cannot be treated as a fatal defect warranting dismissal under Section 86 of the Representation of the People Act, 1951. The objection of Respondent No.1 is therefore devoid of merit and liable to be rejected.
9. Learned Senior counsel, Mr. Bidyadhar Mishra, appearing for Respondent No.2 submits the following-
(i) Respondent No.2 fully adopts and supports the submissions and contentions advanced on behalf of the Election Petitioner. It is submitted that the allegations made in the Election Petition, are well-founded and borne out by the materials placed on record. According to him, the defects, discrepancies, and non-disclosures in the nomination papers, affidavit in Form-26, and election expenditure statements of Respondent No.1 are of a substantial and incurable nature, going to the root of the matter and thereby vitiating the election process. Mr. Mishra further submits that these lapses amount to non-compliance of the mandatory provisions of the Representation of the People Act, 1951, and the Conduct of Page 23 of 59 Election Rules, 1961, and also constitute corrupt practices as defined under the Act.
(ii) Mr. Mishra further contends that Respondent No.2, being a co-respondent duly impleaded in the Election Petition, is vested with a legal right to participate in and contest all interlocutory applications which may have a direct bearing on the maintainability and eventual adjudication of the petition.
(iii) With regard to the issue of locus standi, Mr. Mishra adopts and supports the stand taken by the Election Petitioner.
(iv) With regard to the allegation that the copy of the Election Petition served on Respondent No.1 is not attested by the Petitioner, Mr. Mishra emphatically submits that the objection regarding the absence of animo attestandi is wholly unfounded. It is pointed out that the petition was filed with the requisite number of copies, duly served upon the respondents in accordance with the orders of this Court, and each page of the copy served on Respondent No.1 bears the signature of the Petitioner in a manner clearly indicating the intention to attest. It is argued that Page 24 of 59 this satisfies the requirement under Section 81(3) of the Act. Attention is also drawn to Chapter XXXIII of the Orissa High Court Rules, 1948, which prescribes a detailed procedure for the presentation, scrutiny, and admission of Election Petitions. The instant petition was duly scrutinised by the Registrar (Judicial), found in order, and admitted by this Court on 05.08.2024 after the Stamp Reporter found no defect. Learned counsel contends that the objection raised under Section 81(3) is devoid of merit, especially in the absence of any prejudice shown to have been caused to Respondent No.1. It is further argued that the term "copy" in Section 81(3) merely requires the served copy to be a true and faithful reproduction of the original petition, and that the signatures affixed thereon were clearly made animo attestandi, thereby fulfilling the statutory requirement.
(v) Mr. Mishra, also places reliance on the decision of the Supreme Court in Thangjam Arunkumar (supra) wherein, it was held that non-filing of the affidavit in Form 25 is a curable defect, and the Judge trying the election petition ought to grant an opportunity to the election Page 25 of 59 petitioner to file the requisite Form 25 affidavit in addition to the affidavit already filed with the election petition. Applying the said principle to the present case, learned counsel points out that the Election Petitioner has, even prior to the filing of the present I.A. No. 6 of 2025, already moved I.A. No. 163 of 2024 along with the requisite affidavit in Form 25, praying for acceptance of the same. Thus, according to Mr. Mishra, the defect now pointed out by Respondent No.1 stands duly rectified, and consequently, the election petition cannot be dismissed on the ground of non-filing of the affidavit in Form 25.
(vi) As regards inapplicability of Section 101 of the Representation of the People Act, 1951 to the elector-petitioner, Mr. Mishra submits that the contention so raised is misconceived and unsustainable in law. He points out that Section 84 of the Act expressly provides that an election petitioner may, in addition to seeking a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. The section refers to „a petitioner‟ without any qualification as Page 26 of 59 to whether such petitioner is an elector or a contesting candidate.
Similarly, Section 101 of the Act provides that where „any person‟ who has lodged an election petition has, in addition to questioning the election of the returned candidate, sought a declaration that he himself or any other candidate has been duly elected, and if the High Court is of the opinion (a) that such petitioner or such other candidate received a majority of valid votes, or (b) that but for the votes obtained by the returned candidate by corrupt practices, such petitioner or such other candidate would have received a majority of valid votes the Court shall, after declaring the election of the returned candidate void, declare the petitioner or such other candidate duly elected. The section thus refers to "any person" and is not restricted to contesting candidates. Mr. Mishra also places reliance on the decision of Ajay Maken (Supra) in this regard.
10. This Court has carefully considered the rival submissions of the parties as well as the various judgments cited in support of their respective contentions, which have Page 27 of 59 been duly taken note of. The primary objections raised by on behalf of the Respondent No.1, relate apparently to seven principal grounds: (i) lack of locus standi of the Election Petitioner; (ii) alleged defects in service of copy of the Election Petition without proper attestation; (iii) non- filing of the affidavit in Form-25 despite allegations of corrupt practices; (iv) Non-stating of the manner in which election is materially affected; (v) Permissibility of election petitioner as an elector to claim relief under section 101 of R P Act ;(vi) Non supply of documents relied by the petitioner and (vii) Competence of Respondent No.2 to oppose the present application. Insofar as the issue of non-filing of Form-25 is concerned, this Court proposes to deal with it in a subsequent paragraph.
(i) As regards the objection concerning locus standi of the Election Petitioner, it is manifest from the pleadings, particularly Paragraph 5 of the Election Petition, that the Election Petitioner has categorically stated on oath that he is a voter of the 47-Chandabali Assembly Constituency. Sec 81 (1), being relevant is reproduced below:
"Sec-81-Presentation of petitions.--(1) An election petition calling in question any election may be Page 28 of 59 presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates.
Explanation.--In this sub-section, "elector" means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not"
[Emphasis added] It is thus evident that in law an elector of the constituency, irrespective of whether he has voted at the election or not, is competent to challenge the election. Mere omission to mention the voter identity card number, serial number, or part number does not defeat the Election Petition, particularly on the face of a sworn statement asserting the Petitioner‟s status as an elector. Of course, he has to establish such status by adducing evidence during trial but, it is not necessary that pleadings must set out every minute detail at the threshold. Accordingly, this Court finds no merit in the contention raised by Mr. Samal on the ground of lack of locus standi.
(ii) With regard to the contention as to the alleged defect in the attestation of the Election Petition served on the Respondent, this Court is of the view that the argument Page 29 of 59 lacks substance in view of the settled principle of law that the purpose of serving a true copy of the Election Petition and affidavit is to enable the respondent to understand the charges and prepare an effective defence. In the case of T.M.Jacob v. C. Poulose and others,21 the Supreme Court held as follows;
"35. The object of serving a "true copy" of an election petition and the affidavit filed in support of the allegations of corrupt practice on the respondent in the election petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defence. The requirement is, thus, of substance and not of form.
36. The expression "copy" in Section 81(3) of the Act, in our opinion, means a copy which is substantially so and which does not contain any material or substantial variation of a vital nature as could possibly mislead a reasonable person to understand and meet the charges/allegations made against him in the election petition. Indeed a copy which differs in material particulars from the original cannot be treated as a true copy of the original within the meaning of Section 81(3) of the Act and the vital defect cannot be permitted to be cured after the expiry of the period of limitation."
It has not been demonstrated as to how the Respondent No. 1 was misled in any manner by the copy served on him or that the copy so served was at material variance from the one filed in the Court.
21
(1999) 4 SCC 274 Page 30 of 59
(iii) As regard the contention regarding non- mentioning in the Election Petition as to how the result of the election was materially affected, this Court notes that under Section 100(1)(d) of the Representation of the People Act, 1951, the election of a returned candidate can be declared void if the result of the election, in so far as it concerns the returned candidate, has been materially affected by any of the grounds enumerated in sub-clauses
(i) to (iv).
It is well-settled that the expression „materially affected‟ is a question of fact to be determined on the basis of evidence led during trial, and its existence cannot ordinarily be presumed at the stage of considering maintainability, unless the pleadings are entirely silent or devoid of any assertion touching upon the issue.
In the present case, the election petitioner has, inter alia, alleged that the nomination of the returned candidate was improperly accepted due to non-compliance of statutory requirements in Form-26 and suppression of material particulars. Such allegations, if ultimately proved, are capable of establishing that the election result was Page 31 of 59 materially affected within the meaning of Section 100(1)(d). Whether such conclusion can ultimately be drawn or not is a matter of trial based on evidence and not for summary rejection at the threshold.
Accordingly, this Court is of the considered view that the plea of non-maintainability on the ground of absence of specific pleading or proof of the result of the election being „materially affected‟ is untenable at this stage. The sufficiency of such pleading and the evidentiary burden thereon shall be tested at the trial on merits.
(iv) This Court has carefully considered the rival submissions on the question whether the relief sought by the election petitioner namely, a declaration that the returned candidate‟s election is void coupled with a further declaration that another candidate has been duly elected is legally sustainable or not when the petitioner is an elector and not a contesting candidate.
Section 84 of the Representation of the People Act, 1951 expressly provides that an election petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a Page 32 of 59 further declaration that he himself or any other candidate has been duly elected. The statute makes no distinction between an elector and a contesting candidate; it extends the right to seek such relief to „an election petitioner‟, a term which is defined to include both categories. In this instant case, while the petitioner may not claim the relief indicated in the first part of the quoted expression i.e. „he himself‟, there is nothing to preclude him from claiming the relief covered by the second part i.e., „any other candidate‟. Significantly, the Election Petitioner has impleaded another candidate as a respondent (Respondent No.2) in the Election petition.
Section 101 of the Act prescribes the circumstances in which such a further declaration may be granted, namely, where the Court is satisfied that the petitioner or such other candidate received a majority of valid votes, or that but for the corrupt practice committed by the returned candidate, the petitioner or such other candidate would have received a majority of valid votes. The provision uses the phrase „any person who has lodged Page 33 of 59 a petition‟, without qualifying it by the petitioner‟s status in the election.
Further, it has been consistently held that the framing of the relief in an election petition is a matter of the petitioner‟s choice, and that the provisions of Sections 84 and 101 cannot be read narrowly to deprive an elector from seeking a further declaration, provided he otherwise satisfies the statutory conditions at the conclusion of trial.
In the present case, the prayer for a further declaration has been made in terms of the statutory framework. Whether the conditions under Section 101 are ultimately satisfied is a matter for determination at the stage of final adjudication, after evidence has been led. At this preliminary stage, this Court finds no legal bar to the maintainability of such a prayer merely because the petitioner is an elector and not a contesting candidate.
(v) As to the objection raised by Respondent No.1 that the election petition is liable to be dismissed under Section 86 of the Representation of the People Act, 1951, since the documents relied upon by the petitioner were not supplied along with the petition, this Court finds no merit Page 34 of 59 therein for the reason that neither Section 81 nor Section 83 of the R.P. Act mandates that copies of all documents relied upon must invariably accompany the election petition, failing which it should be dismissed at the threshold. The statutory requirement is that the petition must contain a concise statement of the material facts, set forth the full particulars of any corrupt practice alleged, and be accompanied by the requisite copies duly attested in accordance with Section 81(3).
In the present case, the election petitioner has pleaded the material contents of the documents including the Form-26 affidavit filed by the returned candidate and the expenditure affidavit before the District Election Officer in sufficient detail in paragraphs 6(A)(i) to (vi) and 6(B) of the petition. Moreover, as regards Form-26, the petitioner has specifically pleaded about its availability in the public domain (web portal of the Election Commission of India). When the document is a matter of public record and its contents have been set out in the pleadings, the omission to supply a copy along with the petition does not prejudice the Respondent No.1 in preparing his defence. Page 35 of 59
(vi) As to the contention of Respondent No.1 regarding the right of Respondent No.2 to oppose the present application, this Court is of the considered view that it is a well-settled principle that in an election petition, all respondents, once duly impleaded, acquire the status of necessary or proper parties for the purpose of defending their interest in the proceedings. Section 82 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."
There is no dispute that Respondent No.2 was also a contesting candidate in the election in question and the Election Petitioner, in the Election Petition has inter-alia claimed the following relief.
"5A. Be it declared that the nomination of the Respondent No.l is null and void as the Respondent No. 1 failed to file proper affidavit as prescribed under Rule 4-A of Conduct of Election Rules at the time of delivering the nomination paper and had substantially suppressed/falsely stated the material information in Form 26. Further it be declared that the Respondent No.l has not Page 36 of 59 filed his nomination form along with affidavit as per law and in accordance with the Ministry of Law & Justice Notification No. HI 109(4)/2018- Leg.II, dt.lOth October, 2018 and notification No. HJ 1109/13/2016-Leg.II dt. 26th February, 2019 and such affidavit filed by Respondent No.l in Form-26 is incomplete, invalid in the eye of law and suffer substantial defect and hence the delivery of nomination papers by the Respondent No.l on 10.05.2024 for election to the Chandbali Assembly Constituency bad in the eye of law and accordingly his election return candidate be declare as void.
5E. Be it declared that the so-called affidavit/Form 26 Submitted by the Respondent No. 1 is defective and nomination papers presented by him before the Returning Officer to 47- Chandbali Assembly Constituency is invalid and unsustainable in the eye of law in as much as the candidate has filed the affidavit without proper identification. From a bare perusal of the affidavit it is clearly visible that the identification done by the concerned Notary is not a valid identification m the eye of law."
Thus, in view of the quoted provision, Respondent No.2 and for that matter, all the other contesting candidates become proper parties. In fact, all such candidates have been impleaded as Respondent nos. 3 to 5. Once impleaded, each respondent has the right to present his case on any particular issue before the Court. It is immaterial whether he supports the Election Petitioner or a co-respondent on any issue. The point is, no party can be precluded from putting forth his contentions before the Court. Page 37 of 59
11. Having considered the initial submissions of both parties, this Court deems it appropriate to address the grounds raised by the Respondent No.1 in relation to the specific paragraphs of the Election Petition individually.
12. Paragraphs 1 to 3 of the Election Petition are formal in nature, as they contain general pleadings regarding the subject matter of the election petition, namely, 47- Chandbali Assembly Constituency, the schedule of the General Election, 2024, the names of the contestants from the 47-Chandabali Constituency, their symbols, and party affiliations, which by themselves do not give rise to a cause of action. These averments are formal in nature and, though they do not independently constitute a cause of action, they cannot be read in isolation but must be considered in conjunction with the other paragraphs. In fact, the Election Petition is required to be read as a whole.
13. The averments made in Paragraph 4 of the Election Petition pertain to the total number of votes polled in favour of each candidate and the outcome of the election as reflected in Form-20, whereby the Respondent No. 1 has been declared as the returned candidate. The averments Page 38 of 59 are purely formal in nature, being a reproduction of official election data, and therefore, do not warrant any interpretative exercise or judicial scrutiny at this stage.
14. Paragraph 5 of the Election Petition deals with the reliefs sought by the election petitioner. Such averments, being formal and mandatory in nature as required under Section 84 of the Representation of the People Act, 1951, do not warrant being struck out under the provisions of the Code of Civil Procedure, 1908. The relief clause is an essential component of an election petition, and its inclusion is a statutory requirement.
15. Paragraphs 6(A) to 6(D) of the Election Petition collectively set out allegations asserting that the nomination and subsequent election of Respondent No.1 are vitiated by multiple legal infirmities and material irregularities. The Election Petitioner contends that the Respondent filed his nomination accompanied by affidavit which was not in the prescribed Form-26 format, as mandated under Section 33-A of the Representation of the People Act, 1951, read with Rule 4-A of the Conduct of Election Rules, 1961. In particular, the affidavit dated Page 39 of 59 09.05.2024 is alleged to be defective, lacking proper verification and identification, having been attested by a notary without compliance of the requisite legal formalities.
Furthermore, said affidavit is stated to suffer from substantial non-disclosures and false declarations, especially concerning the Respondent‟s movable and immovable assets. It is alleged that the Respondent failed to disclose essential particulars of bank deposits, misrepresented the ownership of joint family agricultural properties by falsely showing them as self-acquired, and made incorrect statements relating to non-agricultural immovable properties.
In addition to the above, the Election Petitioner has pointed out material discrepancies in the election expenditure affidavit (No.1250 dated 29.06.2024), filed under Section 78 of the Act. It is alleged that this affidavit deliberately omits critical transactional details, including cheque/DD numbers, drawee bank information, and source particulars of substantial financial inflows, particularly a sum of ₹30,00,000/- received from the political party. These omissions are claimed to be in Page 40 of 59 violation of the provisions of Section 77 of the Act and amount to corrupt practice within the meaning of Section 123(6) thereof. The Election Petitioner further avers that although the Respondent filed multiple affidavits on various dates, he failed to submit valid nomination in Form-2B and a properly verified affidavit in Form-26, as required by the Election Commission‟s binding instructions and statutory notifications.
The Election Petitioner asserts that such misrepresentations, concealments, and procedural lapses constitute serious legal violations, undermining the integrity, transparency, and fairness of the electoral process. Relying on several decisions of the Supreme Court, it is submitted that the electorate has a fundamental right under Article 19(1)(a) of the Constitution to be informed of all relevant particulars of contesting candidates, and that the Returning Officer was under a statutory duty to scrutinize the nomination and reject the same under Section 36 of the Act if found defective.
16. Learned Counsel for Respondent No.1, Mr. U.K. Samal, submits that the Election Petition fails to disclose Page 41 of 59 any cause of action and is bereft of essential material facts as required under Section 83(1)(a) of the Representation of the People Act, 1951. He submits that no explanation has been offered as to how the affidavit in Form-26 is not in the prescribed format; no particulars have been given regarding the alleged false statements or concealments; no details are provided concerning the alleged sum of ₹30,00,000/- or its omission constituting a corrupt practice under Section 123(6); no record of any objection before the Returning Officer is produced; and no affidavit in Form-25 has been filed to support allegations of corrupt practice. He further contends that the Petitioner, being merely an elector, has not established his locus standi and that the relief sought under Section 101 is not maintainable at his instance.
In view of the above, he submits that the petition is frivolous, vexatious, and an abuse of the process of court. The pleadings in Paragraphs 6(A) to 6(D) are liable to be struck out under Order VI Rule 16 CPC, and the petition is liable to be rejected under Order VII Rule 11 CPC for Page 42 of 59 non-disclosure of cause of action. Mr. Samal has relied on the following judgments to buttress his contentions:
(i) Samant N. Balkrishna (Supra)
(ii) Hardwari Lal v. Kanwal Singh22,
(iii) Azhar Hussain v. Rajiv Gandhi,23
(iv) R.P. Moidutty (Supra)
(v) V. Narayan Swamy (Supra)
(vi) Hari Shankar jain v. Sonia Gandhi24,
(vii) Santosh Yadav v. Narendra Singh25,
(viii) Kamalnath v. Sudesh Verma26,
(ix) Ram Sukh (Supra)
(x) Anil Vasudev Salgaonkar (Supra)
(xi) Jitu Patnaik v. Sanatan Mahakud27,
(xii) Lalit Kishore Chaturvedi v. Jagdish Prasad Thada & Ors28,
17. Learned Counsel for the Election Petitioner, Mr. N.K Sahu, contends that the prayer for rejection of the petition is misconceived. Non-filing of documents at presentation does not amount to non-compliance with Section 81(3) of the Representation of the People Act, 1951, as long as their material contents are pleaded. In the present case, the affidavits in question are specifically 22 1972) 1 SCC 214 23 1986) Supp. SCC 315 24 (2001) 8 SCC 233 25 (2002) 1 SCC 160 26 2002) 2 SCC 410 27 (2012) 4 SCC 194 28 (1990) Supp. SCC 248 Page 43 of 59 referred to in Paragraphs 6(A) to 6(D) of the petition. As per Para 10, Chapter XXXIII of the High Court Rules, documents are to be produced at the appropriate stage after pleadings. The verification clause sufficiently affirms the truth of the statements based on records and belief, and no defect warranting dismissal exists. Paragraphs 6(A) to 6(D) set out material facts and particulars on procedural irregularities, suppression of information, corrupt practices, and improper acceptance of nomination, thereby disclosing a clear cause of action. The contention that material effect on the election result is not pleaded is untenable, as the petition read as a whole alleges that such acts materially compromised the fairness of the process. At the stage of Order VII Rule 11 CPC, averments in the petition are to be assumed true, and since substantial triable issues arise, summary rejection is unwarranted. Mr. Sahu also cites following judgments in leading his contentions :
(i) Mayar (H.K) Ltd. & Ors. v. Owners & Parties, Vessel M.V Fortune Express & Ors.,29
(ii) S. Rukmini Madegowda v. State Elction Commission & Ors30., 29 (2006) 3 SCC 100 30 (2022) 18 SCC 1 Page 44 of 59
(iii) Ponnala Lakhshmaiah v. Kommuri Pratap Reddy & Ors., 31
(iv) Lok Prahari v. Union of India32,
(v) Krishnamoorthy v. Sivakumar33,
18. Mr. B Mishra, learned Senior counsel for Respondent No.2, adopts and reiterates the submissions advanced by learned counsel for the Election Petitioner in their entirety and makes analogous arguments in support thereof. He submits that the Paragraph 6(A) to 6(D) of the election petition discloses clear triable issues warranting adjudication on merits.
19. This Court has carefully examined the pleadings contained in Paragraphs 6(A) to 6(D) of the Election Petition and has taken note of the settled legal principles governing the purpose and significance of the disclosure requirements under Form-26, as mandated by the Representation of the People Act, 1951. The Supreme Court, in Resurgence India v. Election Commission of India,34 categorically emphasized the fundamental right of citizens under Article 19(1)(a) and has held as follows- 31 (2012) 7 SCC 788 32 (2018) 17 SCC 336 33 (2015) 3 SCC 467 34 (2013) AIR SCW 5320 Page 45 of 59 "24.At this juncture, it is vital to refer to Section 125A of the RP Act. As an outcome, the act of failure on the part of the candidate to furnish relevant information, as mandated by Section 33A of the RP Act, will result in prosecution of the candidate. Hence, filing of affidavit with blank space will be directly hit by Section 125A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning officer, we find no reason why the candidate must again be penalized for the same act by prosecuting him/her.
25.If we accept the contention raised by Union of India, viz., the candidate who has filed an affidavit with false information as well as the candidate who has filed an affidavit with particulars left blank should be treated at par, it will result in breach of fundamental right guaranteed under Article 19(1)(a) of the Constitution, viz., 'right to know', which is inclusive of freedom of speech and expression as interpreted in Association for Democratic Reforms (AIR 2002 SC 2112 : 2002 AIR SCW 2186) (supra).
26. In succinct, if the Election Commission accepts the nomination papers in spite of blank particulars in the affidavits, it will directly violate the fundamental right of the citizen to know the criminal antecedents, assets and liabilities and educational qualification of the candidate. Therefore, accepting affidavit with blank particulars from the candidate will rescind the verdict in Association for Democratic Reforms (supra). Further, the subsequent act of prosecuting the candidate under Section 125A (i) will bear no significance as far as the breach of fundamental right of the citizen is concerned. For the aforesaid reasons, we are unable to accept the contention of the Union of India.
27.What emerges from the above discussion can be summarized in the form of following directions:(i) The voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament/Assemblies and such right to get information is universally recognized. Thus, it is held that right to know about the candidate is a natural right flowing from the concept of democracy Page 46 of 59 and is an integral part of Article 19(1) (a) of the Constitution.(ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The citizens are supposed to have the necessary information at the time of filing of nomination paper and for that purpose, the Returning Officer can very well compel a candidate to furnish the relevant information.(iii) Filing of affidavit with blank particulars will render the affidavit nugatory.(iv) It is the duty of the Returning Officer to check whether the information required is fully furnished at the time of filing of affidavit with the nomination paper since such information is very vital for giving effect to the 'right to know' of the citizens. If a candidate fails to fill the blanks even after the reminder by the Returning Officer, the nomination paper is fit to be rejected. We do comprehend that the power of Returning Officer to reject the nomination paper must be exercised very sparingly but the bar should not be laid so high that the justice itself is prejudiced.(v) We clarify to the extent that Para 73 of People's Union for Civil Liberties case (supra) will not come in the way of the Returning Officer to reject the nomination paper when affidavit is filed with blank particulars.(vi) The candidate must take the minimum effort to explicitly remark as 'NIL' or 'Not Applicable' or 'Not known' in the columns and not to leave the particulars blank.(vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act. However, as the nomination paper itself is rejected by the Returning Officer, we find no reason why the candidate must be again penalized for the same act by prosecuting him/her."
[Emphasis Added]
In light of the above authoritative
pronouncement, this Court is of the considered view that the allegations made by the Election Petitioner regarding improper and incomplete filing of affidavit in Form-26, non- Page 47 of 59 disclosure of movable and immovable assets, false declaration of property particulars, and omission to disclose substantial election expenditure, specifically the receipt of a significant financial contribution, raise triable issues. The petitioner, claiming to be an elector of the 47- Chandabali Assembly Constituency, has pleaded specific material facts, including the nature and details of disclosures that were allegedly omitted or misrepresented by the Respondent. These allegations, if established, go to the very foundation of the electoral process and merit a full and fair adjudication on the basis of evidence. This Court, therefore, finds it inappropriate to summarily reject the petition at this stage and is inclined to hold that the matter warrants a full-fledged trial on merits.
In relation to the allegations concerning non- disclosure and false declaration of movable and immovable assets, this Court finds it relevant to refer to the judgment of the Supreme Court in Lok Prahari (Supra). In the said judgment, the Supreme Court underscored the constitutional and statutory imperative of full and truthful disclosure of assets and sources of income of a candidate, Page 48 of 59 as well as of his spouse and dependents. Notably, in Paragraphs 79 to 81 of the judgment, the Supreme Court, while applying the ratio laid down in Krishnamoorthy (Supra), held that such non-disclosure of assets amounts to "undue influence" and falls squarely within the ambit of corrupt practice as defined under Section 123(2) of the Representation of the People Act, 1951. The Court reasoned that suppression of material financial information misleads the electorate and impairs the free and informed exercise of franchise, thereby striking at the heart of electoral democracy.
In the present case, the Election Petitioner has alleged identical misconduct by the Respondent No.1 namely, failure to disclose correct particulars of movable and immovable assets, and making false declarations regarding the same. This Court is of the considered view that such allegations, if established, would clearly fall within the scope of corrupt practice under Section 123(2) of the Act. However, it is also noted that the Respondent has raised an objection on the ground that the Election Petitioner has not filed a separate affidavit in Form-25, as Page 49 of 59 required under the proviso to Section 83(1)(c) of the Act, and hence, the petition is liable to be dismissed.
On the legal question as to whether the absence of an affidavit in Form-25, as mandated under the proviso to Section 83(1)(c) for allegations relating to corrupt practice, ipso facto warrants dismissal of the election petition, this Court draws guidance from the judgment of the Supreme Court in Thangjam Arun (Supra). In the said case, after referring to A. Manju v. Prajwal Revanna35, the Court held that the requirement to file an affidavit in Form- 25 is directory and not mandatory. It was further held that where there is substantial compliance such as an affidavit and verification within the petition itself, affirming the truthfulness of the allegations relating to corrupt practices, the petition cannot be dismissed solely on the technical ground of absence of a separate Form-25 affidavit.
Applying the aforesaid principle to the present case, this Court finds that the Election Petition contains both a sworn affidavit and a verification clause, wherein the Petitioner has affirmed the truth of the allegations 35 (2022) 3 SCC 269 Page 50 of 59 made, including those relating to corrupt practice. In view of this substantial compliance, and following the settled legal position, this Court is of the considered view that the technical omission of filing a separate Form-25 affidavit is not fatal to the maintainability of the petition. The Petitioner can always be permitted to cure the defect by filing the requisite affidavit at a later stage. Accordingly, the petition cannot be dismissed on this ground alone.
In response to the remaining contentions and submissions advanced by the learned counsel for the respective parties, this Court has already dealt with the same in the foregoing paragraphs, and therefore finds no necessity for any reiteration.
Therefore, this Court, in the backdrop of the settled legal position as elucidated above, is not inclined to summarily reject the pleadings in Paragraphs 6 (A) to 6 (D).
20. In Paragraph 6(E) of the Election Petition, the Election Petitioner has alleged that Respondent No.1 failed to disclose essential information in his affidavit filed in Form-26, including critical particulars relating to the source of income, movable and immovable assets, Page 51 of 59 outstanding government dues, and educational qualifications.
21. Learned counsel for the Respondent No.1, Mr. Samal, has argued that the averments contained in Paragraph 6(E) of the Election Petition are devoid of material facts, requisite particulars, and supporting documents necessary to sustain the allegations made therein. According to him, the assertions against Respondent No.1 are vague, bald, and frivolous, and hence, liable to be struck out. He contends that the Petition discloses no cause of action and is, therefore, liable to be dismissed. The Election Petitioner has also not specified precise particulars relating to income, assets, government dues, or educational qualifications which were allegedly concealed or misrepresented, nor has he indicated whether any records were verified before instituting the present petition. According to Mr. Samal, these significant omissions render the pleadings insufficient in law, amounting to an abuse of the process of the Court warranting rejection under the applicable provisions. Page 52 of 59
22. Per contra, learned counsel for the Election Petitioner, Mr. Sahu, submits that the Petition contains adequate pleadings with respect to non-disclosure and mis- statement of material particulars, including those relating to the source of income, movable and immovable assets, government liabilities, and educational qualifications. He contends that the allegations have been clearly framed with sufficient clarity to raise triable issues and that the absence of supporting documents at the preliminary stage does not render the petition defective, especially when the material facts have been adequately set out in the pleadings.
23. Upon careful consideration of the averments made in Paragraph 6(E) of the Election Petition, this Court finds that, unlike the pleadings under Paragraphs 6(A) and 6(D), the assertions concerning the alleged non-disclosure and mis-statement of material particulars namely, the source of income, movable and immovable assets, government liabilities, and educational qualifications are wholly lacking in material particulars and fail to disclose any valid cause of action. The Election Petitioner has Page 53 of 59 merely made a sweeping and general allegation that Respondent No.1 failed to disclose vital information in his affidavit filed in Form-26 and that he suppressed material facts while providing misleading information. However, such broad and un-particularized assertions, unaccompanied by specific foundational facts such as, what precise information was allegedly suppressed or mis- stated, the source of such knowledge, or how these omissions materially impacted the election, render the pleadings vague, unsubstantiated, and legally untenable.
It is the settled principle of election law that an Election Petition must comply strictly with the requirement of stating material facts, as mandated under Section 83(1)(a) of the Representation of People Act, 1951. The Supreme Court in C.P. John v. Babu M. Palissery36, has categorically held that:
"19. To put it differently, when the election petition is taken up for consideration, the Court which deals with such an election petition, should be in a position to know in exactitude as to what is the corrupt practice alleged as against the parties without giving any room for doubt as to the nature of such allegation, the parties involved, the date, time and the place, etc. so that the party against whom such allegation is made is in a position to explain or defend 36 (2014) 10 SCC 547 Page 54 of 59 any such allegation without giving scope for any speculation. In that context, both Sections 83(1)(a) and (1)(b) and the proviso play a very key role since the election petitioner cannot simply raise an allegation of corrupt practice and get away with it, inasmuch as the affidavit to be filed in respect of corrupt practice should specifically support the facts pleaded, as well as, the material particulars furnished. Rule 94-A of the Rules in turn stipulates that the affidavit should be in the prescribed Form 25 and should be sworn before the Magistrate of the First Class or a notary or the Commissioner of Oaths and makes it mandatory for the election petitioner to comply with the said requirement statutorily. The format of the affidavit as prescribed in Form 25 elaborates as to the requirement of specifically mentioning the paragraphs where the statement of facts are contained and also the other paragraphs where material particulars relating to such corrupt practices are alleged. It also mentions as to which of those statements of facts and material particulars are based on the personal knowledge of the election petitioner and such of those statements and particulars that are made based on the information gained by the election petitioner."
[Emphasis added] Moreover, in Harishankar Jain (supra), the Supreme Court held that:
"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 Page 55 of 59 action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Balkrishna ν. George Fernandez 18, 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."
[Emphasis added] It has been consistently held that election petitions are to be strictly scrutinized, and any vague, bald, or generalized averments, particularly in respect of corrupt practices or statutory violations, are liable to be summarily rejected. In the instant case, the Election Petitioner, in Paragraph 6(E) fails to specify any factual basis to sustain the allegation of non-disclosure of source of income, movable and immovable assets, government dues, educational Page 56 of 59 qualification and how the result was materially affected on such score. This Court is accordingly of the considered view that the pleadings under Paragraph 6(E), being bereft of material facts and particulars, fail to constitute a legally sustainable cause of action and do not warrant further adjudication at trial and therefore, deserve to be struck out.
24. Upon a careful consideration of the pleadings under Paragraphs 6(F), 6(G), 7, 8 and 9 and after hearing the rival submissions advanced by both parties, this Court finds that the averments made in Paragraphs 6(F), 6(G), 7, 8 and 9 are essentially a reiteration and summation of the allegations already pleaded under the Paragraphs 6(A) to 6(D). No independent or distinct allegations have been set forth in these paragraphs, and they merely encapsulate the earlier assertions without introducing any fresh grounds of challenge. Accordingly, this Court is of the considered view that the pleadings under Paragraphs 6(F), 6(G), 7, 8 and 9 cannot be regarded as vague or bald in respect of the allegations that are directly relatable to, and derive support Page 57 of 59 from, the specific allegations made in Paragraphs 6(A) to 6(D).
25. Paragraphs 10 to 12 of the Election Petition contain averments relating to the point in time when the cause of action arose, the period of limitation, the deposit of the requisite challan amount towards security for costs, and other procedural prerequisites. Upon perusal, it is evident that these averments are formal and procedural in nature, aimed at demonstrating compliance with statutory requirements, and do not contain any substantive allegations warranting adjudication on merits.
26. Thus, from a conspectus of the analysis of facts, the position of law and the contentions advanced by the parties, this Court is of the view that no ground is made out by the Respondent for this Court to exercise jurisdiction under Order VI Rule 16 of C.P.C.to strike out the pleadings, except those under paragraph 6(E), or under Order VII Rule 11 of C.P.C. to reject the petition at the threshold or to dismiss the Election Petition under Section 83 of the Act. On the contrary, it is held that the Election Page 58 of 59 Petition, as laid, does disclose a valid cause of action and involves triable issues for which it would not be proper to throw away the same at the threshold without taking it to trial.
27. For the foregoing reasons therefore, the application is allowed in part. The pleadings under Paragraph 6(E) of the election petition are struck out.
................................
Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 8th August, 2025/A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: P.A. Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 12-Aug-2025 11:34:33 Page 59 of 59