Orissa High Court
Debashish Samantaray ............. ... vs Mohammed Moquim on 4 March, 2024
Author: S. K. Sahoo
Bench: S.K. Sahoo
ELPET NO. 6 OF 2019
Debashish Samantaray ............. Election Petitioner
-Versus-
Mohammed Moquim ............ Respondent
INDEX
SL. NO. CONTENTS PAGE NO. PARA NO.
1. Case Background 1-2 1
2. Case of the Election Petitioner 2-19 2
3. Case of the Respondent 19-77 3
4. Issues Framed 77-83 4
5. Witnesses Examined 84-85 5
6. Law on Election Petition 85-87 6
7. Submissions of Counsel 87-88 7
8. Issue Nos.1-3 88-124 8
9. Issue Nos.4-14 124-204 9
10. Issue Nos.15, 16, 19 & 20 204-342 10
11. Issue Nos.17 & 21 342-562 11
12. Issue Nos.22-27 563-599 12
13. Issue Nos.28-32 599-647 13
14. Issue Nos.18 & 33-36 647-649 14
15. Issue Nos.37 & 38 [Conclusion] 650-651 15
16. List of Witnesses 651-652 --
17. List of Exhibits 652-693 --
IN THE HIGH COURT OF ORISSA, CUTTACK
ELPET No.06 of 2019
In the matter of an application under sections 80 to 84 read with
section 100 of the Representation of People Act, 1951 read with
Orissa High Court Rules to regulate proceedings under
Representation of the People Act, 1951.
-------------------------------
Debashish Samantaray ......... Election Petitioner
-Versus-
Mohammed Moquim ......... Respondent
For Election Petitioner: - Mr. Milan Kanungo
(Senior Advocate)
Gopal Agarwal
For Respondent: - Mr. Bidyadhar Mishra
(Senior Advocate)
Tarini Kanta Biswal
--------------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Hearing: 07.02.2024 Date of Judgment: 04.03.2024
---------------------------------------------------------------------------------------------------
S.K. SAHOO, J. Debashish Samantaray (hereafter 'the Election
Petitioner') has filed this Election Petition under sections 80 to 84
read with section 100 of the Representation of Peoples Act, 1951
(hereafter 'R.P. Act, 1951') read with Orissa High Court Rules to
regulate proceedings under the R.P. Act to declare that the
2
nomination of Mohammed Moquim (hereafter 'the Respondent')
having been improperly and illegally accepted, so the entire
process of election so far as it relates to the election of 90-
Barabati Cuttack Assembly Constituency (hereafter 'the
Constituency') has been vitiated and therefore, the result of the
election of the Constituency is materially affected and is to be
declared void and to be set aside. It is further prayed to declare
that the Respondent had not submitted his nomination papers in
the prescribed Form 2B and had filed false affidavit in Form 26
along with the nomination papers and has thus violated the
Election Rules and Act and as such the election of Respondent is
void and to direct, inter alia, for fresh election in the
constituency to the Odisha State Legislative Assembly and for
any other relief or reliefs to which the petitioner is entitled to
under law.
2. It is the case of the Election Petitioner that the
Constituency is one of the nine Assembly Constituencies in the
district of Cuttack and one of the 147 Assembly Constituencies of
the State of Odisha.
The schedule of General Election of the Sixteenth
Assembly Election to the Odisha State Legislative Assembly so
far as it relates to the Constituency was that on 28th March 2019
3
the notification for election was issued, 4th April 2019 was the
last date for filing nominations, 5th April 2019 was the date fixed
for scrutiny of nominations, 8th April 2019 was the last date for
withdrawal of candidature, 23rd April 2019 was the date of
polling, 23rd May 2019 was the date of counting of
votes/declaration of result and 27th May 2019 was the date
before which the election was to be completed.
It is the further case of the Election Petitioner that
during the above process of election, nine persons were duly
notified as contesting candidates and their names, names of
political parties fielding them and their respective symbols are as
follows:-
Sl. Names of Names of Election
No. contesting Political parties Symbol
candidates
1. Mohammed Moquim Indian National Hand
Cong.
2. Samir Dey B.J.P. Lotus
3. Debashish B.J.D. Conch
Samantaray
4. Jay Sankar Acharya Kalinga Sena Bat
5. Priyadarsan Paval SUCI (Communist) Glass
Tumbler
6. Biswanath Rout Kruppa Party Chappals
7. Seetal Kinner Akhil Bharat Hindu Coconut
Mahasabha Farm
8. Shaikh Muntaqeem A.A.P. Broom
Buksh
9. Hemanta Behera Independent Diamond
4
It is stated that the Election Petitioner and the
Respondent filed their respective nomination papers on
02.04.2019. The further case of the Election Petitioner is that in
the Constituency, there were 197 polling stations (booths) and
235699 numbers of total electors, out of which 133854 votes
polled including the postal ballots. The votes polled by each
contesting candidate including the postal ballots are given
hereunder:-
Sl. Name of contesting Party Affiliation Number
No. candidate of Votes
polled
1. Mohammed Moquim Indian National 50244
Cong.
2. Debashish Samantaray B.J.D. 46417
3. Samir Dey B.J.P. 33825
4. Jay Sankar Acharya Kalinga Sena 217
5. Priyadarsan Paval SUCI (Communist) 313
6. Biswanath Rout Kruppa Party 165
7. SeetalKinner Akhil Bharat Hindu 210
Mahasabha
8. Shaikh Muntaqeem A.A.P. 268
Buksh
9. Hemanta Behera Independent 761
Total: 132420
Apart from the above, 1298 votes were polled as
'None of the above' and 136 votes were rejected. The
Respondent received majority of votes and was accordingly
declared to have been elected as M.L.A. from the constituency to
the Odisha State Legislative Assembly.
5
It is the further case of the Election Petitioner that
the result of election so far as it relates to the Constituency in
declaring the Respondent to have been elected as M.L.A. to the
Odisha State Legislative Assembly has been materially affected
on account of material facts and particulars pleaded in the
election petition.
The Election Petitioner, in paragraph-7 of his election
petition, pleaded the following concise statement of material
facts and particulars on the basis of which he seeks the reliefs:
(A) That the respondent, Mohammed Moquim
filed his nomination as Indian National Congress
(I.N.C) candidate for 90-Barabati Cuttack
Assembly Constituency. The respondent, along
with his nomination, filed an affidavit
purportedly in Form 26. The respondent filed his
nomination paper in violation of section 33 of
the R.P. Act, 1951. According to section 33 of
the R.P. Act, 1951, each candidate shall, either
in person or by his proposer, between the hours
of eleven O' clock in the forenoon and three O'
clock in the afternoon deliver to the Returning
Officer at the place specified in this behalf in the
notice issued under section 31 a nomination
paper completed in the prescribed form and
signed by the candidate and by an elector of the
constituency as proposer. Further, Rule 4 of the
6
Conduct of Elections Rules, 1961 prescribes:-
Every nomination paper presented under sub-
section (1) of section 33 shall be completed in
such one of the Forms 2-A to 2-E as may be
appropriate. In the General Election of the
Legislative Assembly of the States, the
appropriate form is Form 2-B appended to the
Conduct of Elections Rules, 1961. The
respondent filed his nomination paper before the
Returning Officer on 02.04.2019 but the same is
not in the prescribed Form 2-B. The respondent
suo moto deleted Part II of the Form 2-B in the
nomination paper filed by him before the
Returning Officer on 02.04.2019. The Part III of
Form 2-B of the nomination paper filed by the
respondent is also not in the prescribed Form 2-
B. Part III-A of the nomination paper filed by the
respondent has not been filled up by the
respondent. The columns of the Part III-A of the
nomination paper have been left blank and
columns from (3) to (9) are also not in the
prescribed Form 2-B. Thus, it was incumbent
upon the Returning Officer to reject the
nomination paper of the respondent but the
Returning Officer illegally and improperly
accepted the nomination paper filed by the
respondent in contravention of section 33 of the
R.P. Act, 1951 read with Rule 4 of the Conduct
of Elections Rules, 1961. The Returning Officer
should have rejected the nomination of the
7
respondent while exercising power under section
36 of the R.P. Act, 1951 at the time of scrutiny
as the nomination papers filed by the
respondent was not in prescribed Form 2-B. The
illegal and improper acceptance of nomination
paper of the respondent has materially affected
the result of the election so far as it concerns
the returned candidate and as such the same is
liable to be set aside.
(B) That the respondent also has not filed the
affidavit in prescribed Form 26 as required U/s.
33-A of the R.P. Act, 1951. According to section
33-A:-(1) A candidate shall, apart from any
information which he is required to furnish, under
this Act or the rules made thereunder, in his
nomination paper delivered under sub-section (1)
of section 33, also furnish the information as to
whether-
(i) he is accused of any offence punishable
with imprisonment for two years or more in a
pending case in which a charge has been framed
by the Court of competent jurisdiction;
(ii) he has been convicted of an offence
[other than any offence referred to in sub-
section (1) or sub-section (2), or covered in sub-
section (3), of section 8] and sentenced to
imprisonment of one year or more.
It is submitted here that the respondent
had filed his nomination before the Returning
Officer on 02.04.2019 along with the affidavit
8
dated 03.04.2019 said to be in Form 26. The
nomination paper and the affidavit filed by the
respondents available in public platform web
portal i.e. http://www.ceoorissa.nic.in/main.html.
It is pertinent to state that the respondent has
submitted four sets of nomination papers with
affidavit as per the information available in the
aforesaid web portal. The petitioner downloaded
the nomination papers and the affidavit filed by
the respondent from the aforesaid web portal
and came to know that the affidavit along with
his nomination paper filed on 02.04.2019 is of
dated 03.04.2019 which is a date subsequent to
the filing of the nomination paper. Thus the
affidavit dated 03.04.2019 is no affidavit in the
eye of law. The affidavit dated 03.04.2019 filed
on 02.04.2019 is in contravention of the
mandate of the law. Thus the Returning Officer
should have rejected the nomination papers filed
by the respondent on 02.04.2019 along with the
affidavit dated 03.04.2019 but the same has not
been done by the Returning Officer at the behest
of the respondent and the Returning Officer has
deliberately and illegally accepted the
nomination paper dated 02.04.2019 along with
the affidavit dated 03.04.2019 of respondent,
though it was the duty of the Returning Officer
to reject the nomination paper of respondent as
the respondent has filed the affidavit which is no
affidavit as required under law. Therefore, the
9
nomination papers dated 02.04.2019 of
respondent are invalid nomination and the votes
received in favour of the respondent cannot be
treated as valid votes. So, the result of election
has been materially affected so far as it relates
to 90-Barabati Cuttack Assembly Constituency
and as such the same is liable to be set aside.
(C) That the respondent in his affidavit dated
03.04.2019 filed along with his nomination
paper on 02.04.2019 has falsely and deliberately
not made correct, proper and full declaration
about the details of the criminal cases pending
against him. The respondent has not accurately
mentioned correct fact under column (5) of the
affidavit submitted by him before the Returning
Officer as to whether any criminal case was
pending against him or not. In column
(5)(ii)(a)(vi), the respondent has mentioned FIR
No.136/2012 dated 24.09.2012 in Balianta
Police Station, Cuttack, Odisha whereas there is
no Balianta Police Station in the district of
Cuttack. Similarly, the respondent has
mentioned FIR No.34 dated 06.09.2007,
Vigilance Police Station, Cuttack, Odisha
whereas there is no FIR No.34 dated 06.09.2007
in Vigilance Police Station, Cuttack, Odisha
against the respondent. The respondent has not
disclosed about the pendency of the FIR/V.G.R.
No.34 dated 06.09.2007 of Vigilance Police
10
Station, Bhubaneswar, Odisha against him. The
respondent has also not disclosed the FIR/V.G.R
No. of the T.R. No.41/2013 pending in the Court
of Spl. Judge, Vigilance, Bhubaneswar against
him and others. Similarly, the declaration made
in column (5)(ii)(b) Sl. No.(ix) by the
respondent about the G.R. case No.680/2012 in
the Court of S.D.J.M., Bhubaneswar is false and
misleading declaration. There is no G.R. Case
No.680/2012 pending against the respondent in
the Court of S.D.J.M., Bhubaneswar rather a
G.R. Case No. 680/2012 is pending against the
respondent in the Court of the J.M.F.C. (O),
Bhubaneswar. Further, the FIR Nos. given in
column (5)(ii)(a) and the corresponding case
nos. and the name of the Court declared in
column (5)(ii)(b) and sections of the concerned
Acts/Codes involved are false and misleading
declarations. The respondent in column (5)(ii)(d)
has declared that two charge related to wrongful
restraint (I.P.C. section 341) whereas in column
(5)(ii)(c) sl. No.(v), (vi) and (xii), he has
declared three cases under section 341 of the
I.P.C. is pending against him. The respondent in
column (5)(ii)(d) has declared that two charges
related to obscene acts and songs (I.P.C. section
294) whereas in column (4)(ii)(c) sl. nos. (i),
(ii), (iv), (v), (vi) and (xii), he has declared six
cases under section 294 of the I.P.C. is pending
against him. Similarly, the respondent in column
11
(5)(ii)(d) has declared five charges related to
cheating and dishonestly inducing delivery of
property (I.P.C. section 420) whereas in column
(5)(ii)(c) sl. Nos. (iii), (vii) to (x) and (xiii), he
has declared six cases under section 420 of the
I.P.C. are pending against him. The respondent
in column (5)(ii)(d) has declared five charges
related to punishment of criminal conspiracy
(I.P.C. section 120-B) whereas in column
(5)(ii)(c) sl. nos. (iii), (vii) to (x) and (xiii), he
has declared six cases under section 120-B of
the I.P.C. is pending against him. The
respondent in column (5)(ii)(d) has declared two
charges related to mischief by injury to public
road, bridge, river, channel (I.P.C. section 143)
whereas in column (5)(ii)(c) sl. nos. (i), (iv) and
(v), he has declared three cases under section
143 of the I.P.C. is pending against him. The
respondent in column (5)(ii)(d) has declared two
charges related to mischief by doing any act in
respect of any public property (section 7/3 and
7/4 of P.D.P.P. Act) whereas in column (5)(ii)(c)
sl. nos. (i), (ii), (xii), he has declared three
cases under the P.D.P.P. Act. The respondent in
column (5)(ii)(c), sl. nos.(iii), (vii) to (x) and
(xiii) has declared about the cases pending
against him under section 13(2) read with
section 13(1)(d) of P.C. Act, 1988 but has not
declared about the same in column (5)(ii)(d) of
the affidavit. Thus the respondent has made
12
false declaration about the pendency of criminal
cases against him. Non-disclosure of criminal
cases by the respondent in entirety and in full
detail in the prescribed Form 26 as mandated
under section 33-A of the R.P. Act, 1951 read
with Rule 4-A of the Conduct of Elections Rules,
1961 creates impediment in free exercise of
electoral rights by the voters, therefore, the
election of the respondent from 90-Barabati
Cuttack Assembly Constituency is to be declared
null and void as the misinformed voters could
not make an informed choice according to their
free will and conscience and the same violates
the fundamental rights of the voters to know.
(D) That column (7)(a) Note 1 of the prescribed
form of Form 26 requires assets in joint name
indicating the extent of joint ownership will also
have to be given but the respondent in the
affidavit, though has mentioned about the
Account No.13770100031593 (joint account) in
The Federal Bank Ltd, B.K. Road, Cuttack and
about the Account No.10861745745 (joint
account) in S.B.I. Main Branch, Badambadi,
Cuttack, but has not disclosed the name and
other details of the joint account holder of the
above said bank accounts and has not indicated
about the extent of ownership in the said bank
accounts. Similarly, in column no.(7)(iii), the
respondent has declared about the investment
made in shares of different companies but has
13
not declared the book value of shares as per the
books of the company. Further, in column
(7)(iv) the respondent is required to declare the
details of investment in NSS, Postal Savings,
Insurance Policies and in any financial
instruments in Post Office or Insurance Company
and the amount but the respondent has not
given the details of investment made in his and
his spouse's insurance policies. The respondent
is required to give details separately in respect
of each investment. He has given loans to six
companies but the details of the same have not
been given.
(E) That in column (7)(B)(ii), the respondent
has declared about the non-agriculture land in
Dist. Cuttack, Mouza-Patpur, Khata No.15-D1,
Plot No.114, 116, 112, 113. It is submitted here
that at present, there is no Mouza known as
Patpur in Dist. Cuttack so the Khata No. and Plot
No. described therein are all false declarations.
Similarly, the respondent has declared about the
non-agriculture land of his spouse in Dist.-
Cuttack, Mouza-Patpur, Khata No.16-D1, Plot
No.111/1048. It is submitted here that at
present there is no Mouza known as Patpur in
Dist. Cuttack, so the Khata No. and Plot No.
described therein are all false declarations
deliberately made by the respondent to mislead
the voters. The respondent has further declared
about the Mouza Unit-13, Chandinichowk, Khata
14
No.799, Plot No.220 and 221 but there is no plot
No.221 in Khata No.799 as per the R.O.R.
downloaded from the official website i.e.,
bhulekh.
(F) That in Para (7)(B)(iv), the respondent has
declared about the residential building known as
"City Shelter" in the district of Cuttack, Mouza:
Cuttack town, Unit No.15, Plot No.1882/3012,
2743, 1882/3020. Ground Floor Flat Nos.1/A,
2/B, F/5. In the above declaration, the
respondent has not declared the Khata No. of
the above said Plot Nos. whereas in the
declaration made with respect to his spouse, he
has declared in serial no.(2) that Khata
No.04/79, 04-80 Plot No.1882/3019, 1882/3020
and in serial no.(3), he has mentioned Khata
No.992 with respect to same plot Nos. i.e. Plot
No.1882/3019, 1882/3020, 2743. The
respondent has mentioned about the above said
plots in three Khatas which are false declarations
as all the above plots cannot be recorded in
three different Khata of same Mouza.
The respondent has not declared in his
affidavit filed in Form 26 along with his
nomination paper about the loans taken by the
companies in which he himself and his spouse are
the directors. The respondent's company has
taken huge amount of loans from Odisha Rural
Housing Development Corporation when the
respondent himself was the Managing Director of
15
M/S. Metro Builders Pvt. Ltd. The respondent has
suppressed to disclose the above facts in the
affidavit filed in Form 26.
In column (11) of Part B of the affidavit, the
respondent is required to declare the abstract of
the details given in (1) to (10) of part A and in
column (8)(i), he is to declare the purchase
price of self-acquired immovable properties of
himself and his spouse. The respondent while
declaring the purchase price of self-acquired
immovable property of his spouse has declared
"NOT APPLICABLE." He has not declared the
purchased price of the self-acquired properties
by his spouse. He has also not declared the
development/construction cost of immovable
property after purchase by his spouse. The
respondent has also not declared in Part B
column (8)(iii) about the approximate current
price and the total value of self-acquired assets
by his spouse. Thus the respondent has filed the
affidavit in Form 26 along with his nomination
paper by making false declarations and as such
his nomination has been accepted illegally and
improperly by the Returning Officer. Therefore,
the election of the respondent is to be declared
void by this Hon'ble Court as he has violated the
mandate of section 33 of the R.P. Act, 1951 read
with Rule 4A of the Conduct of Election Rules,
1961.
16
(G) It is submitted here that the respondent has
not submitted his nomination paper as required
under law in the prescribed form. He has also
not filed the affidavit in Form 26 giving true and
correct declarations about his criminal cases,
assets (both movable and immovable) and
liabilities of himself and his spouse for which his
nomination papers ought to have been rejected
by the Returning Officer as the respondent has
not complied with the requirement of section 33
of the R.P. Act, 1951.
(H) That the non-disclosure or misinformation
about the criminal cases pending against him,
and the assets (both movable and immovable)
and liabilities of himself and his spouse leads to
suppression and amounts to making false
declaration. Therefore, the respondent is not
entitled to contest the election for the above
said suppression and false declarations in the
affidavit filed in Form 26 and for which the
election of the respondent is to be declared void.
Non-disclosure/misinformation of criminal cases,
assets (both movable and immovable) and the
liabilities of the respondent and his spouse
interferes with free exercise of the right of the
voters to vote according to their choice and
conscience. Free and fair election is the essence
of democracy. Without freely and fairly informed
voters, votes cast by uninformed voters in
favour of the respondent are meaningless. One
17
sided information, misinformation and non-
information all equally create an uninformed
citizenry which makes democracy a farce.
Therefore, casting of votes by misinformed and
non-informed voters is bound to affect the
democracy seriously. The information required in
the nomination Form 2B and in the affidavit filed
in Form 26 is vital for giving effect to the "Right
to Know" of the citizens. If a candidate fails to
file the prescribed nomination form in Form 2B
and files affidavit by suppressing the required
information in Form 26, his nomination paper is
to be rejected. The respondent has not filed his
nomination paper in the prescribed Form 2B and
files affidavit by suppressing the required
information in Form 26. In the present case, the
respondent has not filed his nomination paper in
the prescribed Form 2B and has not fully
disclosed about the criminal cases pending
against him. The respondent has also not
disclosed his correct assets (both movable and
immovable) and liabilities and of his spouse in
the affidavit filed in Form 26 along with his
nomination paper. The Returning Officer should
have rejected his nomination papers as the
same was not filed in the prescribed Form 2B
and whatever has been filed is also with blank
particulars. But the Returning Officer illegally
and improperly accepted the nomination papers
of the respondent though the same were not in
18
the prescribed Form 2B. Therefore, non-filing of
nomination paper in the prescribed form and
whatever has been filed with blank particulars
materially affects the result of the election as
such the election of the respondent declaring
him as MLA of 90-Barabati Cuttack Assembly
Constituency is to be declared void.
(I) That filing of nomination papers by the
respondent is not as per the prescribed form,
rather with alternation and deletion of columns
thereby withholding the information from the
voters amounts to violation of the mandate of
section 33 of the R.P. Act, 1951 read with Rule
4-A of the Conduct of Elections Rules, 1961. The
respondent has failed to comply the requirement
of section 33 of the R.P. Act, 1951 read with
Rule 4-A of the Conduct of Elections Rules 1961.
Thus, the election of the respondent is liable to
be declared void.
(J) That the respondent filed this nomination on
02.04.2019 with an affidavit dated 03.04.2019
which is no affidavit according to law. Therefore,
it was incumbent upon the Returning Officer to
reject the nomination filed on 02.04.2019 with
the affidavit dated 03.04.2019 but the Returning
Officer illegally and improperly accepted the
nomination dated 02.04.2019 filed by the
respondent. The improper acceptance of
nomination dated 02.04.2019 with affidavit
dated 03.04.2019 materially affects the result of
19
the election so far it relates to 90-Barabati
Cuttack Assembly Constituency as such the
same is liable to be declared void."
3. The Respondent in his written statement has, inter
alia, stated that assertion of the Election Petitioner that the
result of the election in question has been materially affected is
totally false, concocted and baseless rather the result of election
is valid, lawful and legally sustainable. It is further stated that
the election petition does not disclose complete cause of action
and as such the same is liable to be dismissed at the very
threshold. The pleadings made under paragraphs 7(A) to 7(J) of
the election petition are bereft of material facts to disclose any
complete cause of action inasmuch as whatever pleaded under
paragraphs 7(A) to 7(J) of the election petition are wholly
unnecessary, scandalous, frivolous and vexatious, which are
nothing but otherwise an abuse of the process of the Court and
tend to prejudice, embarrass the fair trial of the case. With
respect to paragraphs 7(A) to 7(J) of the election petition, in the
written statement, it is stated as follows:-
Paragraph-7(A) of the election petition:
According to the Respondent, so far as the
allegations made by the Election Petitioner in paragraph 7(A) of
the election petition is concerned, it falls under section
20
100(1)(d)(i) and (iv) of the R.P. Act which postulates that if the
High Court is of opinion that the result of the election, in so far
as it concerns a retuned candidate, has been materially affected,
(i) by the improper acceptance of any nomination, or (iv) by any
non-compliance with the provisions of the Constitution or of the
R.P. Act or of any rules or orders made under that Act, the High
Court shall declare the election of the returned candidate to be
void.
According to the Respondent, while making the
above allegations, the Election Petitioner has admitted in his
pleadings that the Respondent filed his nomination as the official
candidate set up by the Indian National Congress which is a
recognized national political party. As prescribed under section
33 of the R.P. Act, the nomination form of such a candidate is
required to be signed by the candidate and an elector of the
constituency as proposer. First proviso to sub-section (1) of
section 33 of the R.P. Act postulates that a candidate not set up
by a recognized political party shall not be deemed to be duly
nominated for election from a constituency unless the
nomination paper is subscribed by ten proposers being electors
of the constituency. From a bare perusal of the Form 2B as
prescribed under Rule 4 of the Conduct of Elections Rules, 1961
21
(hereafter '1961 Rules'), which is appended to the said Rules, it
would be abundantly clear that Part-I of the said Form 2B is
required to be used by candidate set up by recognized political
party whereas its Part-II is required to be used by candidate not
set up by recognized political party. At the beginning of Form 2B
before Part-I, there is a clear instruction in capital letters that,
"STRIKE OFF PART I OR PART II BELOW WHICHEVER IS NOT
APPLICABLE". Under the format of Part-I of Form 2B, there is
provision for proposing the nomination of the candidate by one
elector/proposer and the part-I is required to be signed by one
proposer only whereas under its part-II, there is provision for
proposing the nomination by ten electors as proposers to the
candidature and the Part-II is required to be signed by ten
proposers.
According to the Respondent, he is admittedly a
nominated candidate set up by a recognized national political
party i.e. Indian National Congress who is required under law to
use/fill up the part I of Form 2B, which has been complied in its
letter and spirit in utter compliance with the provisions of law.
The Respondent is also required under law to strike off the part
II of Form 2B, which has been done by deleting the part II as
prescribed under the law. It is further submitted that the words
22
'strike off' and 'delete' has one and the same meaning. If part II
of Form 2B would not have been deleted from the form, the
same was required to be struck off by the Respondent. Thus,
according to the Respondent, the defect pointed out by the
Election Petitioner is not at all a defect of substantial character.
Sub-section (4) of section 36 of the R.P. Act, 1951 mandates
that the Returning Officer shall not reject any nomination paper
on the ground of any defect which is not of a substantial
character. Therefore, the Returning Officer while scrutinizing the
nomination paper of the respondent has rightly, properly and
legally accepted the same as valid as prescribed under section
36 of the R.P. Act, 1951.
According to the Respondent, the further allegation
made by the Election Petitioner is that the Part III of Form 2B of
the nomination paper filed by the Respondent is also not in the
prescribed Form 2B, but it does not point out any mistake and/or
defect which appears under Part III of Form 2B filed by the
respondent. It is stated that Part III of Form 2B requires the
candidate to declare that he is a citizen of India and has not
acquired the citizenship of any foreign State/Country; the age of
the candidate; name of the recognized political party by which he
has been set up as a candidate; symbols chosen by the
23
candidate in case of set up by a registered unrecognized political
party/independent candidate; that the name of the candidate
and his father's/mother's/husband's name have been correctly
spelt out in which language; that he is qualified and also not
disqualified for being chosen to fill the seat in the Legislative
Assembly of the State; and where applicable the details of his
caste/tribe. The Election Petitioner while alleging that the Part III
of Form 2B is not in prescribed Form 2B has completely failed to
plead to substantiate his allegation to the effect that the
Respondent has not furnished the required information and/or
not made correct and full declaration with respect to the above
mentioned requirements.
According to the Respondent, the allegation made by
the election petitioner with respect to Part IIIA of Form 2B filed
by the respondent does not point out any particular mistake
and/or defect. It is stated that Part IIIA of Form 2B requires the
candidate to disclose his criminal antecedents, if any; as to
whether he holds any office of profit under Central/State
Government; as to whether he has been declared insolvent by
any Court; as to whether he is under allegiance or adherence to
any foreign country; as to whether he has been disqualified
under section 8A of the 1951 Act or by an order of the President;
24
as to whether he was dismissed for corruption or for disloyalty
while holding office under Central/State Government; as to
whether he has any subsisting contract(s) with the Government
for supply of goods or execution of works; as to whether the
candidate is a managing agent, or manger or secretary of any
company or corporation in the capital of which the Central/State
Government has not less than 25% share; as to whether he has
been disqualified by the Commission under section 10-A of the
1951 Act. The Election Petitioner while alleging that Part III-A of
the nomination paper filed by the respondent has not been filled
up by the Respondent and the columns of the Part III-A of the
nomination paper have been left blank and columns from (3) to
(9) are also not in the prescribed Form 2B has completely failed
to plead that on account of such allegation, the Respondent has
not furnished the required information as stated above and as
such is not qualified and/or disqualified to contest the election in
question.
According to the Respondent, the
pleadings/allegations made under paragraph-7(A) of the election
petition are bereft of materials facts and the same does not
disclose complete cause of action and that on a bare perusal of
the pleadings contained under paragraph-7(A), it would be
25
evident that the following vital material facts are completely
absent on account of which the pleadings do not disclose
complete cause of action to frame any triable issue:-
(i) Though the Election Petitioner has made his
allegations with respect to the nomination paper
filed in Form 2B by the Respondent before the
Returning Officer of the Constituency on
02.04.2019, he has not filed either the certified
copy of the said nomination paper in Form 2B or
the downloaded copy of the said Form 2B from
the official website of the Election Commission of
India or of the Chief Electoral Officer of Odisha
along with the election petition. The Election
Petitioner is required to file the said document
duly signed and verified by him in the manner
laid down in the C.P.C. along with his election
petition as prescribed under section 83(2) of the
R.P. Act, 1951 read with Order-VII Rule 14(1) of
the C.P.C. On account of non-filing of the above
said document in utter disobedience to the
provisions of law, the allegations made under
paragraph-7(A) of the election petition amounts
to non-disclosure of material facts inasmuch as
such pleadings/allegations do not disclose
complete cause of action and as such the same
are liable to be struck down;
(ii) Under paragraph-7(A), there is no pleading
about the numbers/sets of nomination papers
filed by the Respondent in Form 2B whereas
26
under section 33(6) of the R.P. Act, 1951, it is
prescribed that a candidate can file maximum
four nomination papers;
(iii) It has been prescribed under section 35 of
the R.P. Act, 1951 that the Returning Officer
after receiving the nomination papers shall enter
on the nomination paper its serial number and
shall sign thereon a certificate stating the date
on which and the hour at which the nomination
paper has been delivered to him whereas the
Election Petitioner has not disclosed the said
material fact with respect to the serial number
(s) of the nomination paper(s) filed by the
Respondent as endorsed by the Returning
Officer of 90-Barabati Cuttack Assembly
Constituency;
(iv) The Returning Officer is required under law
to display in his notice board the copies of the
nomination papers filed by each candidate along
with the copy of the affidavit accompanying the
nomination on the same day on which the
nomination has been filed. If anyone asks for a
copy of the papers mentioned above, the same
should be made available to him/her freely by
the Returning Officer. Copies of the same should
also be handed over to media persons for wide
dissemination of the information about the
candidates. The nomination papers and the
affidavits of each candidate should also be
uploaded in the official website of the Election
27
Commission of India. If anyone furnishes any
information contradicting the statements in the
nomination form or the affidavit by means of a
duly sworn affidavit, copies of such papers
should also be displayed on the notice board of
the Returning Officer and be uploaded on the
website.
In the instant case, the Election Petitioner,
though was a contesting candidate, has willfully
suppressed the material facts to the effect as to
whether the above provisions with respect to
nomination papers and affidavits filed by the
respective nominated candidates have been
complied with by the Returning Officer or not. It
has also not been disclosed by the Election
Petitioner that as to whether he himself or
anyone else has filed any counter affidavit to the
nomination and the affidavit filed by the
Respondent or not;
(v) The name(s) of the proposer(s), their
respective polling station number(s) and their
respective serial numbers in the said polling
station has not been disclosed;
(vi) Though allegations are made with respect of
Part II, Part III and Part III-A of Form 2B, the
format of such parts of Form 2B have not been
provided/disclosed in the election petition;
(vii) It has not been pleaded/disclosed in the
election petition as to whether the Respondent is
28
required under law to fill up the Part II of Form
2B or not;
(viii) The information required to be furnished
under Part III of Form 2B has not been
disclosed/pleaded in the election petition;
(ix) The substantial defects, if any, that appears
under Part III of Form 2B have not been
disclosed/pleaded in the election petition;
(x) The information required to be furnished
under Part III-A or Form 2B has not been
disclosed/pleaded in the election petition;
(xi) It has not been pleaded as to what are the
columns of Part III-A of Form 2-B that have
been left blank by the Respondent;
(xii) It has also not been pleaded as to why and
how the columns (3) to (9) of the Part III-A of
Form 2B filed by the Respondent are not in the
prescribed Form 2B;
(xiii) The information required to be furnished
under columns (3) to (9) in Part III-A of Form
2B has not been disclosed/pleaded in the
election petition;
(xiv) The substantial defects, if any, that
appears under Part III-A of Form 2B have not
been disclosed/pleaded in the election petition;
(xv) It has not been pleaded/disclosed by the
Election Petitioner as to whether during the
process of scrutiny of nominations, he himself or
anybody else has raised objection, either oral or
written, to the nomination of the Respondent
29
pointing out the above allegations as
enumerated under (a), (b) and (c) above before
the Returning Officer or not;
(xvi) It has not been pleaded/disclosed that on
account of such allegation made under
paragraph-7(A) of the election petition as to why
and how the result of the election, in so far as it
concerns the returned candidate, has been
materially affected.
According to the Respondent, the allegations made
by the Election Petitioner as enumerated under paragraph-7(A)
are wholly unnecessary, scandalous, frivolous, vexatious and
tend to prejudice, embarrass the fair trial of the case with
ulterior political motive which is an abuse of the process of the
Court.
Paragraph-7(B) of the election petition:
According to the Respondent, in paragraph-7(B) of
the election petition, allegation is made to the effect that the
Election Petitioner came to know from the downloaded copy of
the nomination papers and the affidavit in Form 26 filed by the
Respondent from the web portal i.e.
http://www.ceoorissa.nic.in/main.html that the affidavit filed
along with his nomination paper on 02.04.2019 is of dated
03.04.2019, which is a date subsequent to the filing of the
30
nomination paper. Thus the affidavit dated 03.04.2019 filed
along with the nomination dated 02.04.2019 is not a valid
affidavit in the eye of law. The affidavit dated 03.04.2019 filed
on 02.04.2019 is in contravention of the mandate of law. Thus,
the Returning Officer should have rejected the nomination
papers filed by the Respondent on 02.04.2019 along with the
affidavit dated 03.04.2019 but the same has not been done by
the Returning Officer at the behest of the Respondent and the
Returning Officer has deliberately and illegally accepted the
nomination paper dated 02.04.2019 along with the affidavit
dated 03.04.2019 of the Respondent though it was the duty of
the Returning Officer to reject the nomination paper of the
Respondent as the Respondent has filed the affidavit which is not
a valid affidavit in the eye of law.
According to the Respondent, while making the
above allegation under paragraph-7(B) of the election petition,
the Election Petitioner has wilfully and deliberately suppressed
the following material facts and as such the pleadings made
under paragraph-7(B) of the election petition do not disclose
complete cause of action:-
(i) Though the Election Petitioner has pleaded
that he is in possession of the downloaded copy
of the nomination papers and the affidavit in
31
Form 26 filed by the Respondent, the said
downloaded nomination papers and the affidavit
after being duly signed and verified by the
Election Petitioner in the manner laid down in
the C.P.C. have not been filed/delivered/
presented along with the election petition in
utter violation of section 83(2) of the R.P. Act,
1951 read with Order-VII Rule 14(1) of the
C.P.C.
(ii) As per the standing instruction issued by
the Election Commission, if the nomination
papers filed with affidavit in Form 26 is either
incomplete, or has any column(s) left blank and
not filled up, or the said affidavit is not at all
filed, the Returning Officer shall inform the same
to the nominated candidate concerned in writing
in the prescribed 'checklist' directing him to file
the same latest by 3.00 p.m. on the last date for
filing of nominations or before commencement
of scrutiny of nominations. In the case in hand,
the Respondent filed his affidavit in Form 26
dated 02.04.2019 along with his nomination
papers on 02.04.2019. As prescribed under
section 33(4) of the R.P. Act, 1951, the
Returning Officer made preliminary examination
of nomination papers and affidavit in Form 26
filed by the Respondent then and there from the
technical stand point when the same were
filed/presented before him by the Respondent.
During the process of preliminary examination of
32
nomination papers along with the affidavit in
Form 26 by the Returning Officer, it was found
by him that column/serial numbers 5, 6, 7 and 8
of the said affidavit in Form 26 were not
properly mentioned. Therefore, the Returning
Officer issued instruction to the Respondent to
file a fresh/revised affidavit before the
commencement of scrutiny of nominations.
Similarly other three sets of 'checklist' were
issued on 02.04.2019 by the Returning Officer to
the Respondent with respect to his other three
sets of nominations numbered as
03/LA/2019/RO, 04/LA/2019/RO and
05/LA/2019/RO respectively. In due compliance
to the instruction issued by the Returning Officer
as enumerated under the 'checklist', the
Respondent prepared a fresh/revised affidavit in
Form 26 on 03.04.2019 and submitted/filed the
said revised affidavit before the Returning
Officer on 04.04.2019 at about 12.20 p.m. The
Returning Officer upon receiving the revised
affidavit dated 03.04.2019 on 04.04.2019 issued
a 'checklist' to that effect to the Respondent.
According to the Respondent, the Election
Petitioner being a contesting candidate in the
election in question, who was also elected as
M.L.A. from 90-Barabati Cuttack Assembly
Constituency in previous elections consecutively
for last two terms knew very well about the
above instructions of the Election Commission of
33
India and provisions for issuance of 'checklist' by
the Returning Officer, which he is supposed to
have received in respect of his own nominations
from the Returning Officer, but while making
allegations against the Respondent with respect
to filing of his affidavit in Form 26, the Election
Petitioner wilfully and deliberately suppressed
the said material facts and as such the
allegations/pleadings made under paragraph-
7(B) of the election petition does not disclose
complete cause of action.
(iii) In his election petition, under its paragraph-
1, the Election Petitioner has given the schedule
of the election in question wherein it is
mentioned that the last date for filing of
nominations is 04.04.2019 and the date fixed for
scrutiny of nominations is 05.04.2019. The
format of the affidavit in Form 26 prescribed
under Rule 4-A of the Conduct of Election Rules,
1961 has been appended with the said 1961
Rules. A bare perusal to the foot note of Form
26 affidavit vide its Note-1 as well as
instructions of the Election Commission of India
in the Hand Book for Returning Officer, it would
be evident that the affidavit should be filed by
the nominated candidate latest by 3.00 p.m. on
the last day of filing nominations i.e. in the
instant case by 3.00 p.m. on 04.04.2019.
Further, as per the instruction of the Election
Commission of India to the effect that in case
34
the affidavit in Form 26 is not at all filed by the
nominated candidate along with his/her
nomination papers or the same has been filed
with its columns left blank, it should be brought
to the notice of the nominated candidate and he
will have opportunity to file a fresh affidavit
complete in all respects by the time fixed for
commencement of scrutiny of nominations i.e. in
the instant case by 11.00 a.m. on 05.04.2019.
The Election Petitioner deliberately and wilfully
has suppressed these important material facts
with an ulterior motive and only to create
confusion, he has falsely stated that the affidavit
in Form 26 dated 03.04.2019 filed by the
Respondent along with his nomination papers on
02.04.2019 is no affidavit in the eyes of law.
(iv) The Election Petitioner has suppressed the
material fact to the effect that the affidavit in
question in Form 26 dated 03.04.2019 filed by
the Respondent before the Returning Officer on
04.04.2019 at 12.20 p.m. was well within the
prescribed time limit and the Returning Officer
after receiving it has acknowledged the same in
a fresh 'checklist' issued on 04.04.2019.
(v) Though the Election Petitioner has made
allegation to the effect that the Returning Officer
at the behest of the Respondent has deliberately
and illegally accepted the nomination paper
dated 02.04.2019 along with the affidavit dated
03.04.2019 of the Respondent, but the Election
35
Petitioner has not pleaded the basic material fact
as to why and how on account of such
allegation, the result of the election, in so far as
it concerns the retuned candidate, has been
materially affected inasmuch as such illegal
acceptance of the nomination papers filed by the
Respondent comes under the ambit of section
100(1)(d)(i) and (iv) of the R.P. Act, 1951.
According to the Respondent, the
allegations/pleadings made by the Election
Petitioner under paragraph-7(B) of the election
petition are wholly unnecessary, scandalous,
frivolous, vexatious and tend to prejudice,
embarrass the fair trial of the case and made
with ulterior political motive which is an abuse of
the process of the Court.
Paragraph-7(C) of the election petition:
According to the Respondent, under paragraph-7(C)
of the election petition, the Election Petitioner has made
following allegations with respect to pending criminal cases
against the Respondent disclosed in his affidavit filed in Form 26,
and further alleged that the Respondent has made false
declaration about the pendency of criminal cases against him:-
(a) In column (5)(ii)(a)(vi), the Respondent has
mentioned F.I.R. No.136/2012 dated 24.09.2012
in Balianta Police Station, Cuttack, Odisha
36
whereas there is no Balianta Police Station in the
district of Cuttack;
(b) Similarly, the Respondent has mentioned
F.I.R. No.34 dated 06.09.2007, Vigilance police
station, Cuttack, Odisha whereas there is no
F.I.R. No.34 dated 06.09.2007 in Vigilance
police station, Cuttack, Odisha against the
Respondent. The Respondent has not disclosed
about the pendency of the F.I.R./V.G.R. No.34
dated 06.09.2007 of Vigilance police station,
Bhubaneswar, Odisha against him;
(c) The Respondent has also not disclosed the
F.I.R./V.G.R. No. of the T.R. No.41/2013
pending in the Court of learned Special Judge,
Vigilance, Bhubaneswar against him and others;
(d) Similarly the declaration made in column
(5)(ii)(b) sl. no.(ix) by the Respondent about the
G.R. Case No.680/2012 in the Court of S.D.J.M.,
Bhubaneswar is false and misleading
declaration. There is no G.R. Case No.680/2012
pending against the Respondent in the Court of
S.D.J.M., Bhubaneswar rather such G.R. Case is
pending against the Respondent in the Court of
J.M.F.C.(O), Bhubaneswar;
(e) The F.I.R. Nos. given in column (5)(ii)(a)
and the corresponding Case Nos. and the name
of the Court declared in column (5)(ii)(b) and
37
sections of the concerned Acts/Codes involved
are false and misleading declarations;
(f) The Respondent in column (5)(ii)(d) has
declared that two charges related to wrongful
restraint (section 341 I.P.C.) whereas in column
(5)(ii)(c) sl. no.(v), (vi) and (xii), he has
declared three cases under section 341 of the
I.P.C. are pending against him;
(g) The Respondent in column (5)(ii)(d) has
declared that two charges related to obscene
acts and songs (section 294 I.P.C.) whereas in
column (5)(ii)(c) sl. nos.(i), (ii), (iv), (v), (vi)
and (xii), he has declared six cases under
section 294 of the I.P.C. are pending against
him;
(h) Similarly, the Respondent in column
(5)(ii)(d) has declared five charges related to
cheating and dishonestly inducing delivery of
property (section 420 I.P.C.) whereas in column
(5)(ii)(c) sl. nos.(iii), (vii) to (x) and (xiii), he
has declared six cases under section 420 of the
I.P.C. are pending against him;
(i) The Respondent in column (5)(ii)(d) has
declared five charges related to punishment of
criminal conspiracy (section 120B I.P.C.)
wherein in column (5)(ii)(c) sl. nos. (iii), (vii) to
(x) and (xiii), he has declared six cases under
38
section 120-B of the I.P.C. are pending against
him;
(j) The Respondent in column (5)(ii)(d) has
declared two charges related to mischief by
injury to public road, bridge, river, channel
(section 143 I.P.C.) whereas in column (5)(ii)(c)
sl. nos. (i), (iv) and (v), he has declared three
cases under section 143 of the I.P.C. are
pending against him;
(k) The Respondent in column (5)(ii)(d) has
declared two charges related to mischief by
doing any act in respect of any public property
(section 7/3 and 7/4 of P.D.P.P. Act) whereas in
column (5)(ii)(c) sl. nos. (i), (ii), (xii), he has
declared three cases under the P.D.P.P. Act;
(l) The Respondent in column (5)(ii)(c) sl. nos.
(iii), (vii) to (x) and (xiii) has declared about the
cases pending against him under section 13(2)
read with section 13(1)(d) of P.C. Act, 1988 but
has not declared about the same in column
(5)(ii)(d) of the affidavit.
According to the Respondent, he has disclosed all the
necessary information in respect of the criminal cases pending
against him in his affidavit filed in Form 26. There is no
concealment of information or false information provided by the
Respondent in the said affidavit, rather he has declared all
39
particulars in respect of all the criminal cases pending against
him as required under law and prescribed under the format of
the Form 26 affidavit. On the other hand, the Election Petitioner
has made above allegations very tactfully on false and frivolous
grounds, without disclosing the basic material facts as to what
were the information required to be disclosed under law in
column (5) of the Form 26 affidavit. All the nominated
candidates are required to furnish information about criminal
cases pending against them, if any, under column (5) of their
respective affidavit filed in Form 26. Under column (5)(i), the
candidate is required to declare that there is no pending criminal
case against him by mentioning tick mark against the column. If
the column (5)(i) is applicable to the candidate, he has to write
"NOT APPLICABLE" against the column (5)(ii) given below. Under
column (5)(ii), the candidate is required to declare the criminal
cases pending against him. In the instant case, column (5)(i) is
not applicable for the Respondent, hence he has mentioned "Not
Applicable" against the column (5)(i) and on the other hand
against column (5)(ii), he has put tick mark declaring thereby
that criminal cases are pending against him. Under the column
(5)(ii)(a), the candidate is required to declare "FIR No. with
name and address of the police station concerned". Under the
40
column (5)(ii)(b), the candidate is required to declare "Case No.
with Name of the Court". Under the column (5)(ii)(c), the
candidate is required to furnish information about "Section(s) of
concerned Acts/Codes (give no. of the Section, e.g.
Section.......of I.P.C. etc.)." Under the column (5)(ii)(d), the
candidate is required to furnish information about "Brief
description of offence". Under the column (5)(ii)(e), the
candidate is required to furnish information about "Whether
charges have been framed (mention YES or NO)". Under the
column (5)(ii)(f), the candidate is required to furnish information
to the effect that "If answer against (e) above is YES, then to
give the date on which charges were framed". Under the column
(5)(ii)(g), the candidate is required to furnish information as to
"Whether any Appeal/Application for revision has been filed
against the proceedings (Mention YES or No)". According to the
Respondent, the Election Petitioner, while making allegations
under paragraph-7(C) of the election petition, has deliberately
suppressed the above important material facts which are laid
down/prescribed under the column (5)(ii) in its clauses (a) to (g)
and as such those allegations do not disclose complete cause of
action.
41
According to the Respondent, the allegations made
under paragraph-7(C) of the election petition as enumerated
under (a) to (l) above, are bereft of material facts, do not
disclose complete cause of action, wholly unnecessary, frivolous,
scandalous, vexatious and tend to prejudice, embarrass the fair
trial of the case with ulterior political motive which is otherwise
an abuse of the process of the Court. It is further stated:-
(a) The Respondent has correctly mentioned
the F.I.R. No., date of F.I.R. and name of the
police station in column (5)(ii)(a) vide Sl. No.(vi)
i.e. F.I.R. No.136/2012 dated 24.09.2012 at
Balianta police station. There is no allegation
about the corresponding entries/information
furnished in respect of the said F.I.R. under
columns (5)(ii)(b) to (5)(ii)(g). The only
discrepancy as alleged is that mentioning of
Balianta police station, Cuttack whereas in the
district of Cuttack, there is no Balianta police
station. The said allegation is made without any
pleading to the effect that on account of such
typographical mistake as to how the result of the
election, insofar as it concerns the returned
candidate, has been materially affected. Even if
the district of the Balianta police station has
been wrongly mentioned as Cuttack District in
place of Khordha District, but the same is
inconsequential, immaterial and a mere
42
typographical error and the said mistake cannot
be a ground on basis of which the election is to
be declared void and be set aside. The electors
of the Constituency in general are well informed
that Balianta police station comes under
Khordha district and as such on account of
mentioning of the name of the district as Cuttack
in place of Khordha, the same does not create
any serious confusion or misinformation in the
minds of the electors;
(b) Similarly, the Respondent has correctly
disclosed under column no.(5)(ii)(a) regarding
pendency of F.I.R. No.34 dated 06.09.2007 in
Vigilance Police Station. There is no allegation
with respect to all other corresponding
information furnished under column
nos.(5)(ii)(b) to (5)(ii)(g) against the said F.I.R.
number. The only allegation is made pointing
out the typographical error with respect to place
of the police station as 'Cuttack' instead of
'Bhubaneswar', without any pleading to the
effect that on account of such typographical
mistake as to how the result of the election,
insofar as it concerns the returned candidate,
has been materially affected. Such typographical
error as alleged is inconsequential and
immaterial and the said error cannot be said to
be a ground on basis of which the election is to
be declared void and be set aside;
43
(c) The allegation to the effect that the
Respondent has not disclosed pendency of T.R.
No.41/2013 in the Court of Special Judge,
Vigilance, Bhubaneswar against him and others
is entirely false, concocted, unnecessary,
frivolous and scandalous inasmuch as the said
allegation is bereft of the material fact to the
effect that the Respondent has disclosed the said
T.R. No.41/2013 pending before the Court of
Special Judge, Vigilance under column
No.(5)(ii)(b) in its sl. no.(iii) along with all other
corresponding information in respect of the said
pending case which have been furnished
correctly in column nos. (5)(ii)(c) to (5)(ii)(g).
There is no pleading of the material fact as to
how on account of such allegation, the result of
the election in so far as it concerns the returned
candidate, has been materially affected;
(d) Similarly, the allegation made with respect
to the declaration made in column (5)(ii)(b) sl.
no.(ix) by the Respondent about the G.R. Case
No.680/2012 pending in the Court of S.D.J.M.,
Bhubaneswar instead of Court of J.M.F.C.(O),
Bhubaneswar, is not worth acceptable as
because the source of information of such
allegation has not been disclosed by the Election
Petitioner. There is also no allegation made with
respect to the corresponding information
furnished against the said pending case under
column nos.(5)(ii)(a), (5)(ii)(c) to (5)(ii)(g).
44
Such allegation made in the election petition is
bereft of the material fact as to how on account
of mentioning the name of the Court as
S.D.J.M., Bhubaneswar instead of J.M.F.C.(O),
Bhubaneswar, the result of the election, in so far
as it concerns the returned candidate, has been
materially affected;
(e) The allegation made to the effect that the
F.I.R. Nos. given in column (5)(ii)(a) and the
corresponding Case Nos. and the name of the
Court declared in column no.(5)(ii)(b) and
sections of the concerned Acts/Codes involved
are false and misleading declarations, is wholly
baseless, unnecessary and frivolous without
pleading of the material facts disclosing/pointing
out thereby any particular false and misleading
declarations in those two columns and as such
the same does not disclose any cause of action;
(f) The Respondent in column no.(5)(ii)(c)
against the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos. (v), (vi)
and (xii) that section 341 of I.P.C. is involved in
the pending cases against him. Similarly, the
Respondent in column (5)(ii)(d) against the
heading "Brief description of offence" has
correctly disclosed that section 341 of I.P.C.
relates to the offence of wrongful restraint. In
the election petition, there is no other
allegation(s) made with respect to the
45
information furnished by the Respondent in
columns nos.(5)(ii)(a), (5)(ii)(b), (5)(ii)(e),
(5)(ii)(f) and (5)(ii)(g) regarding charges/cases
pending under section 341 of I.P.C. It is not
mandatorily required to furnish number of
charges/cases in columns (5)(ii)(c) and (5)(ii)(d)
of Form 26 affidavit. Therefore, the allegation
made by the Election Petitioner pointing out the
number of charges/cases mentioned in columns
(5)(ii)(c) and (5)(ii)(d) is inconsequential,
unnecessary, frivolous, scandalous, vexatious,
does not disclose any cause of action and as
such legally not sustainable. There is no
pleading of the material fact to the effect as to
how on account of such allegation, the result of
the election, in so far as it concerns the returned
candidate, has been materially affected;
(g) The Respondent in column no.(5)(ii)(c)
against the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos. (i), (ii),
(iv), (v), (vi) and (xii) that section 294 of I.P.C.
is involved in the pending cases against him.
Similarly, the respondent in column no.(5)(ii)(d)
against the heading "Brief description of offence"
has correctly disclosed that Section 294 of I.P.C.
relates to the offence of obscene acts and songs.
In the election petition, there is no other
allegation(s) made with respect to the
information furnished by the Respondent in
46
columns nos.(5)(ii)(a), (5)(ii)(b), (5)(ii)(e),
(5)(ii)(f) and (5)(ii)(g) regarding charges
pending under section 294 of I.P.C. It is not
mandatorily required to furnish number of
charges/cases in columns nos.(5)(ii)(c) and
(5)(ii)(d) of Form 26 affidavit. Therefore, the
allegation made by the Election Petitioner
pointing out the number of charges/cases
mentioned in columns (5)(ii)(c) and (5)(ii)(d) is
inconsequential, unnecessary, frivolous,
scandalous, vexatious, does not disclose any
cause of action and as such legally not
sustainable. There is no pleading of the material
fact as to how on account of such allegation, the
result of the election, in so far as it concerns the
returned candidate, has been materially
affected;
(h) The Respondent in column no.(5)(ii)(c)
against the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos. (iii), (vii) to
(x) and (xiii) that section 420 of I.P.C. is
involved in the pending cases against him.
Similarly, the Respondent in column (5)(ii)(d)
against the heading "Brief description of offence"
has correctly disclosed that section 420 of I.P.C.
relates to the offence of cheating and
dishonestly inducing delivery of property. In the
election petition, there is no other allegation(s)
made with respect to the information furnished
47
by the Respondent in columns nos.(5)(ii)(a),
(5)(ii)(b), (5)(ii)(e), (5)(ii)(f) and (5)(ii)(g)
regarding charges pending under section 420 of
I.P.C. It is not mandatorily required to furnish
number of charges/cases in columns (5)(ii)(c)
and (5)(ii)(d) of Form 26 affidavit. Therefore,
the allegation made by the Election Petitioner
pointing out the number of charges/ cases
mentioned in columns (5)(ii)(c) and (5)(ii)(d) is
inconsequential, unnecessary, frivolous,
scandalous, vexatious, does not disclose any
cause of action and as such legally not
sustainable. There is no pleading of the material
fact as to how on account of such allegation the
result of the election, in so far as it concerns the
returned candidate, has been materially
affected;
(i) The Respondent in column (5)(ii)(c) against
the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos.(iii), (vii) to
(x) and (xiii) that section 120B of I.P.C. is
involved in the pending cases against him.
Similarly, the Respondent in column (5)(ii)(d)
against the heading "Brief description of offence"
has correctly disclosed that section 120B of
I.P.C. relates to the offence of criminal
conspiracy. In the election petition, there is no
other allegation(s) made with respect to the
information furnished by the Respondent in
48
columns nos.(5)(ii)(a), (5)(ii)(b), (5)(ii)(e),
(5)(ii)(f) and (5)(ii)(g) regarding charges
pending under section 120B of I.P.C. It is not
mandatorily required to furnish number of
charges/cases in columns nos.(5)(ii)(c) and
(5)(ii)(d) of Form 26 affidavit. Therefore, the
allegation made by the Election Petitioner
pointing out the number of charges/cases
mentioned in columns nos.(5)(ii)(c) and
(5)(ii)(d) is inconsequential, unnecessary,
frivolous, scandalous, vexatious, does not
disclose any cause of action and as such legally
not sustainable. There is no pleading of the
material fact as to how on account of such
allegation the result of the election, in so far as
it concerns the returned candidate, has been
materially affected;
(j) The Respondent in column no.(5)(ii)(c)
against the heading "Sections of the concerned
Acts/ Codes involved" has correctly furnished
the required information vide its sl. nos.(i), (iv)
and (v) that section 143 of I.P.C. is involved in
the pending cases against him. Similarly, the
Respondent in column no.(5)(ii)(d) against the
heading "Brief description of offence" has
correctly disclosed that section 143 of I.P.C.
relates to the offence for punishment whoever is
a member of an unlawful assembly. Hence, the
pleading made by the Election Petitioner to the
effect that in column no.(5)(ii)(d), the
49
Respondent has declared two charges related to
mischief by injury to public road, bridge, river,
channel (section 143 I.P.C.), is out and out
false, evasive, frivolous, vexatious and
scandalous. In the election petition, there is no
other allegation(s) made with respect to the
information furnished by the respondent in
columns (5)(ii)(a), (5)(ii)(b), (5)(ii)(e), (5)(ii)(f)
and (5)(ii)(g) regarding charges pending under
section 143 of I.P.C. It is not mandatorily
required to furnish number of charges/cases in
columns (5)(ii)(c) and (5)(ii)(d) of Form 26
affidavit. Therefore, the allegation made by the
Election Petitioner pointing out the number of
charges/cases mentioned in columns (5)(ii)(c)
and (5)(ii)(d) is inconsequential, unnecessary,
frivolous, scandalous, vexatious, does not
disclose any cause of action and as such legally
not sustainable. There is no pleading of the
material fact to the effect that as to how on
account of such allegation, the result of the
election, in so far as it concerns the returned
candidate, has been materially affected;
(k) The Respondent in column (5)(ii)(c) against
the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos.(i), (ii), (xii)
that sections 7/3 and 7/4 of P.D.P.P. Act are
involved in the pending cases against him.
Similarly, the Respondent in column no.(5)(ii)(d)
50
against the heading "Brief description of offence"
has correctly disclosed that sections 7/3 and 7/4
of P.D.P.P. Act relate to the offence of mischief
by doing any act in respect of any public
property. In the election petition, there is no
other allegation(s) made with respect to the
information furnished by the Respondent in
columns nos.(5)(ii)(a), (5)(ii)(b), (5)(ii)(e),
(5)(ii)(f) and (5)(ii)(g) regarding charges
pending under Sections 7/3 and 7/4 of P.D.P.P.
Act. It is not mandatorily required to furnish
number of charges/cases in columns
nos.(5)(ii)(c) and (5)(ii)(d) of Form 26 affidavit.
Therefore, the allegation made by the election
petitioner pointing out the number of charges/
cases mentioned in columns nos.(5)(ii)(c) and
(5)(ii)(d) is inconsequential, unnecessary,
frivolous, scandalous, vexatious, does not
disclose any cause of action and as such legally
not sustainable. There is no pleading of the
material fact as to how on account of such
allegation, the result of the election, in so far as
it concerns the returned candidate, has been
materially affected;
(l) The further allegation to the effect that the
Respondent in column no.(5)(ii)(c) sl. nos. (iii),
(vii) to (x) and (xiii) has declared about the
cases pending against him under section 13(2)
read with section 13(1)(d) of P.C. Act, 1988 but
has not declared about the same in column
51
(5)(ii)(d) of the affidavit, is not worth acceptable
and legally sustainable. The offence under
section 13(2) read with section 13(1)(d) of P.C.
Act, 1988 relate to criminal misconduct by a
public servant and as such the Respondent being
not a public servant till declared elected, was not
required under law to furnish the description of
the offence which relates to a public servant
inasmuch as such offences is not applicable to
him. There is no pleading of the material fact as
to how on account of such allegation, the result
of the election, insofar as it concerns the
returned candidate, has been materially
affected.
Paragraph-7(D) of the election petition:
According to the Respondent, under paragraph-7(D)
of the election petition, the Election Petitioner has made
following allegations:-
(a) The Respondent in the affidavit, though has
mentioned about the Account
No.13770100031593 (joint account) in the
Federal Bank Limited, B.K. Road, Cuttack, but
he has not disclosed the name and other details
of the joint account holder of the said bank
account and has not indicated about the extent
of ownership in the said bank account;
(b) The Respondent in the affidavit, though has
mentioned about the Account No.10861745745
52
(joint account) in S.B.I., Main Branch,
Badambadi, Cuttack, but has not disclosed the
name and other details of the joint account
holder of the said bank account and has not
indicated about the extent of ownership in the
said bank account;
(c) In column no.(7)(iii), the Respondent has
declared about the investment made in shares
of different companies but has not declared the
book value of shares as per the books of the
company;
(d) In column no.(7)(iv), the Respondent is
required to declare the details of investments in
NSS, Postal Savings, Insurance Policies and in
any financial instruments in Post Office or
Insurance Company and the amount, but the
respondent has not given the details of
investment made in his and his spouse's
insurance policies. The Respondent is required
to give details separately in respect of each
investment;
(e) The Respondent has given loans to six
companies but the details of the same have not
been given.
According to the Respondent, all the above
allegations/pleadings are bereft of material facts and the same
do not disclose complete cause of action inasmuch as those
allegations are wholly unnecessary, frivolous, vexatious,
53
scandalous and tend to prejudice the fair trial of the case and as
such the pleadings made under paragraph-7(D) of the election
petition are liable to be struck down being hit by Order-VI Rule
16 of the C.P.C. on the grounds/provisions of law as described
herein below:-
(a) The allegation/pleading as enumerated
under (a) above is bereft of following material
facts-
(i) It has not been pleaded/disclosed in the
election petition as to whether the candidate is
required under the law to give the details of the
joint account holder or not. There is no such
legal provision for disclosure of the details of the
joint account holder in affidavit in Form 26;
(ii) While making such allegation, the election
petitioner has not disclosed/pleaded the column
number of the affidavit in which the Respondent
has furnished such information;
(iii) The Election Petitioner has suppressed the
material fact that under column (7)(A)(ii), the
candidate is required to furnish information
about "Details of deposit in Bank accounts
(FDRs, Term Deposits and all other types of
deposits including saving accounts), Deposits
with Financial Institutions, Non-banking Financial
54
Companies and Cooperative Societies and the
amount in each such deposit";
(iv) Though the Respondent has disclosed the
amount available in the said account, the same
has not been disclosed/pleaded by the election
petitioner;
(v) The Election Petitioner has suppressed the
very important material fact that the said bank
account is a joint account along with the spouse
of the Respondent namely Firdousia Bano and
the said back account is opened with the
operational instruction "EITHER OR SURVIVOR";
(vi) There is no pleading to the effect that on
account of such non-mentioning of the extent of
ownership in the said bank account, the electors
have been misled and the result of the election,
in so far as it concerns the returned candidate
has been materially affected;
(b) The allegation/pleading as enumerated
under (b) above is bereft of following material
facts-
(i) The averments made with respect to name
of the branch i.e. S.B.I., Main Branch,
Badambadi is wrong. It is worthwhile to submit
here that the respondent in his affidavit has
mentioned the said bank account as S.B.I., Main
Branch, Chandini Chowk, Cuttack;
55
(ii) It has not been pleaded/disclosed in the
election petition as to whether the candidate is
required under the law to give the details of the
joint account holder or not. In fact, there is no
such legal provision for disclosure of the details
of the joint account holder in affidavit in Form
26;
(iii) While making such allegation, the Election
Petitioner has not disclosed/pleaded the column
number of the affidavit under which the
respondent has furnished such information;
(iv) The Election Petitioner has suppressed the
material fact that under column (7)(A)(ii), the
candidate is required to furnish information
about "Details of deposit in Bank accounts
(FDRs, Term Deposits and all other types of
deposits including saving accounts), Deposits
with Financial Institutions, Non-banking Financial
Companies and Cooperative Societies and the
amount in each such deposit";
(v) Though the Respondent has disclosed the
amount available in the said account, the same
has not been disclosed/pleaded by the election
petitioner;
(vi) The Election Petitioner has suppressed the
very important material fact that the said bank
account is a joint account along with the spouse
56
of the respondent namely Firdousia Bano and
the said bank account is opened with the
operational instruction "EITHER OR SURVIVOR";
(vii) There is no pleading to the effect that on
account of such non-mentioning of the extent of
ownership in the said bank account, the electors
have been misled and the result of the election,
in so far as it concerns the returned candidate,
has been materially affected.
(c) The allegation/pleading as enumerated
under (c) above is bereft of following material
facts-
(i) The Election Petitioner has suppressed the
material fact that under column (7)(A)(iii), the
candidate is required to furnish information
about "Details of investment in Bonds,
debentures/shares and units in companies/
Mutual funds and others and the amount";
(ii) Though the Respondent has mentioned the
names of companies wherein he has made
investments, the Election Petitioner has not
disclosed the same in his election petition;
(iii) Though the Respondent has mentioned the
amount in rupees in respective companies, the
Election Petitioner has not disclosed the same in
his election petition;
57
(iv) There is no pleading of the material fact to
the effect that under column (7)(A) Note-3, the
candidate is instructed to furnish information
about "Value of Bonds/Share Debentures as per
current market value in Stock Exchange in
respect of the listed companies and as per books
in case of non-listed companies should be
given";
(v) There is no pleading to the effect that the
companies mentioned in column (7)(A)(iii)
wherein the respondent has made investment,
are not listed companies but non-listed
companies;
(vi) There is no pleading to the effect that the
amount shown against respective companies is
not the book value of the shares;
(vii) There is no pleading about the numbers of
shares owned by the Respondent in different
companies;
(viii) There is no pleading to the effect that on
account of such non-mentioning of the book
value of shares as per the books of the
companies, the electors have been misled and
the result of the election in so far as it concerns
the returned candidate, has been materially
affected.
58
(d) The allegation/pleading as enumerated
under (d) above is bereft of following material
facts-
(i) Though the Respondent in his affidavit in
Form 26 under column (7)(A)(iv) has disclosed
the names of insurance companies, policy nos.,
policy date and the surrender value of such
policies made in his name and in name of his
spouse, such material information/facts have not
been pleaded in the election petition;
(ii) There is no pleading to the effect that on
account of such non-mentioning of details of
investments made in Respondent's and his
spouse's insurance policies, the electors have
been misled and the result of the election, in so
far as it concerns the returned candidate, has
been materially affected.
(e) The allegation/pleading as enumerated
under (e) above is bereft of following material
facts-
(i) There is no pleading showing that under
which column of the affidavit, the Respondent
has furnished information about the loans given
to six companies;
(ii) Though the Respondent under column
(7)(A)(v) has mentioned the names of the
companies/entity/firm along with the amount of
59
loans given to respective companies/entity/firm,
the same has not been pleaded/disclosed in the
election petition;
(iii) There is no pleading to the effect that on
account of such allegation, the result of the
election, in so far as it concerns the returned
candidate, has been materially affected.
Paragraph-7(E) of the election petition:
According to the Respondent, under paragraph-7(E)
of the election petition, the election petitioner has made
following allegations with respect to non-agriculture land owned
by the Respondent and his spouse:-
(a) In column 7(B)(ii), the Respondent has
declared about the non-agriculture land in
District-Cuttack, Mouza-Patpur, Khata No.15-
D1, Plot No.114, 116, 112, 113. There is no
mouza known as Patpur in district Cuttack, so
the Khata No. and Plot No. described therein are
all false declarations;
(b) The Respondent has declared about the
non-agriculture land of his spouse in district
Cuttack, Mouza-Patpur, Khata No.16-D1, Plot
No.111/1048. There is no mouza known as
Patpur in district Cuttack, so the Khata No. and
Plot No. described therein are all false
declarations deliberately made by the
Respondent to misled the voters;
60
(c) The Respondent has further declared about
the mouza Unit-13, Chandinichowk, Khata
No.799, Plot No.220 and 221 but there is no Plot
No.221 in Khata No.799 as per the R.O.R.
downloaded from the official website i.e.
bhulekh.
According to the Respondent, all the above
allegations/pleadings are bereft of material facts, wholly
unnecessary, scandalous, frivolous, vexatious and tend to
prejudice the fair trial of the case, which are nothing but
otherwise an abuse of the process of the Court and as such the
pleadings/allegations made under paragraph-7(E) of the election
petition are liable to be struck down being hit by Order-VI Rule
16 of the C.P.C. on the grounds as described herein below:-
(a) The allegation/pleading as enumerated
under (a) above is bereft of following material
facts-
(i) Under column 7(B)(ii) of the affidavit filed
in Form 26, though the Respondent has given
the details of land particulars such as area i.e.
total measurement in sq. ft., whether inherited
property or not, date of purchase, cost of land at
the time of purchase and investment made
therein by way of development, construction
etc., approximate current market value with
respect to such land, the same have not been
61
disclosed/pleaded in the election petition except
pointing out the typographical error occurs in
the name of the mouza typed as "Patpur" in
place of "Patapur". In absence of above material
facts in the pleadings, though the same are very
much available in record i.e. the affidavit in
Form 26, the allegation does not constitute any
complete cause of action and as such the same
is liable to be struck out;
(ii) Though there absolutely no confusion likely
to arise to understand that the mouza "Patpur"
and mouza "Patapur" is one and the same
mouza in Cuttack district, the same material fact
has been suppressed by the election petitioner
deliberately;
(iii) There is no pleading that on account of
mentioning the name of the mouza "Patpur" in
place of "Patapur", as to how the result of the
election, in so far as it concerns the returned
candidate, has been materially affected.
(b) The allegation/pleading as enumerated
under (b) above is bereft of following material
facts-
(i) Under column 7(B)(ii) of the affidavit filed
in Form 26, though the Respondent has given
the details of the land particulars belonging to
his spouse such as area i.e. total measurement
in sq. ft., whether inherited property or not, date
of purchase, cost of land at the time of purchase
62
and investment made thereon by way of
development, construction etc., approximate
current market value with respect to such
landed property, the same have not been
disclosed/pleaded in the election petition except
pointing out the typographical error occurring in
the name of the mouza typed as "Patpur" in
place of "Patapur". In absence of above material
fact in the pleading, though the same as very
much available in record i.e. the affidavit in
Form 26, the allegation does not disclose any
complete cause of action and as such the same
is liable to be struck out;
(ii) Though there is absolutely no confusion
likely to arise to understand that the mouza
"Patpur" and the mouza "Patapur" is one and the
same mouza in Cuttack district, the same
material fact has been suppressed by the
Election Petitioner deliberately;
(iii) There is no pleading that on account of
mentioning the name of mouza "Patpur" in place
of "Patapur" as to how the result of the election,
in so far as it concerns the returned candidate,
has been materially affected.
(c) The allegation/pleading as enumerated
under (c) above is bereft of following material
facts-
63
(i) Though the election petitioner has pleaded
that the R.O.R. downloaded from the official
website i.e. bhulekh in respect of the Khata
No.799 of Mouza Unit-13, Chandinichowk, he
has not filed the said downloaded R.O.R. along
with the election petition in utter violation of the
provisions contained in Order-VII Rule 14 of
C.P.C., as such the allegation with respect to
Khata No.799 cannot be entertained and is liable
to be struck out;
(ii) Though the respondent in his affidavit filed
in Form 26 has given the details of the land
particulars such as area i.e. measurement in sq.
ft., whether inherited property or not, date of
purchase, cost of the land at the time of
purchase, investment made therein by way of
development, construction etc., approximate
current market value, the same have not been
disclosed/pleaded in the election petition. In
absence of above material facts in the pleadings,
though the same are very much available on
record i.e. the affidavit in Form 26, the
allegation does not disclose any complete cause
of action and as such the same is liable to be
struck out;
(iii) Though the Election Petitioner has alleged
that there is no plot no.221 in Khata no.799 at
mouza Unit-13, Chandinichowk, he has not
64
mentioned/disclosed the correct Khata no. under
which plot no.221 comes inasmuch as the name
of the district under which the above said
mouza, khata, plot comes has not been
disclosed;
(iv) There absolutely no pleading made by the
election petitioner to the effect that on account
of such absence of plot no.221 in khata no.799
as alleged, as to how the result of the election,
in as far as it concerns the returned candidate,
has been materially affected.
Paragraph-7(F) of the election petition:
According to the Respondent, under paragraph-7(F)
of the election petition, the Election Petitioner has made
following allegations:-
(a) In para (7)(B)(iv), the Respondent has
declared about the residential building known as
"City Shelter" in the district of Cuttack, Mouza:
Cuttack Town, Unit No.15, Plot No.1882/3019,
2743, 1882/3020. Ground Floor flat Nos.1/A,
2/B, F/5. In the above declaration, the
Respondent has not declared the Khata no. of
the above said plot nos. whereas in the
declaration made with respect to his spouse, he
has declared in serial no.2 that Khata no.04/79,
04-80, Plot no.1882/3019, 1882/3020 and in
serial no.3, he has mentioned Khata no.992 with
65
respect to same plot nos. i.e. Plot
no.1882/3019, 1882/3020, 2743. The
Respondent has mentioned about the above said
plots in three Khatas which are false declarations
as all the above plots cannot be recorded in
three different Khata of same Mouza;
(b) The Respondent has not declared in his
affidavit filed in Form 26 along with his
nomination paper about the loans taken by the
companies in which he himself and his spouse
are the directors. The Respondent's company
has taken huge amounts of loans from Odisha
Rural Housing Development Corporation when
the Respondent himself was the Managing
Director of M/s. Metro Builders Pvt. Ltd. The
Respondent has suppressed to disclose the
above facts in the affidavit filed in Form 26;
(c) In column (11) of Part B of the affidavit, the
Respondent is required to declare the abstract of
the details given in (1) to (10) of Part A and in
column 8(i), he is to declare the purchase price
of self-acquired immovable properties of himself
and his spouse. The Respondent while declaring
the purchase price of self-acquired immovable
property of his spouse has declared "NOT
APPLICABLE". He has not declared the purchase
price of the self-acquired properties by his
spouse. He has also not declared the
development/construction cost of immovable
66
property after purchase by his spouse. The
Respondent has also not declared in Part B
column (8)(iii) about the approximate current
price and the total value of self-acquired assets
by his spouse.
According to the Respondent, all the allegations as
enumerated under (a), (b) and (c) above are wholly
unnecessary, frivolous, vexatious, scandalous and tend to
prejudice the fair trial of the case inasmuch as such allegations
are bereft of material facts and do not disclose complete cause of
action and as such the same are liable to be struck down on the
grounds described herein below:-
(a) The allegation/pleading as enumerated
under (a) above is bereft of following material
facts-
(i) The Election Petitioner has not pleaded
about the details of information required to be
furnished under column (7)(B)(iv). As per the
format of the Form 26 affidavit under column
7(B), every nominated candidate has to furnish
"Details of Immovable assets". Under column
7(B)(iv) as per the format of Form 26 affidavit,
the candidate has to furnish information about
"Residential Buildings (including apartment)
Locations(s) survey Number(s)". A bare perusal
of the allegation made in the election petition, it
67
would be clearly evident that the above material
facts regarding information required to be
furnished are completely absent and not at all
pleaded.
(ii) Though the Respondent has furnished
required information in column 7(B)(iv) such as
location, plot nos., name of the apartment i.e.
"City Shelter", Flat nos. owned by him in City
Shelter apartment at Ground floor, 1st floor, 2nd
floor and 3rd floor, area i.e. total measurement
in sq. ft., whether inherited property or not, date
of purchase, cost of property at the time of
purchase, investment on the land by way of
development, construction, approximate current
market value with respect to his immovable
property situated in the apartment "City
Shelter", these material facts have not been
disclosed by the election petitioner in his
pleadings;
(iii) A bare reference to the information
furnished by the respondent with respect to the
apartment "City Shelter" situated at Cuttack
Town, Unit No.15 along with its flat nos. and
floor nos. owned by the Respondent and by his
spouse will make it abundantly clear that the
required information i.e. "Residential buildings
(including apartment) location, survey
number(s)" have been furnished and there is no
concealment of the required information;
68
(iv) The allegation made by the Election
Petitioner to the effect that the declarations
made by the Respondent are false declarations,
without any pleading of material facts are not
legally acceptable and as such the same is liable
to be struck down;
(v) There is absolutely no pleading made by the
Election Petitioner to the effect that on account
of such allegation, the result of the election, in
so far as it concerns the returned candidate, has
been materially affected.
(b) The allegation/pleading as enumerated
under (b) above is bereft of following material
facts-
(i) There is no pleading in the election petition
disclosing the names and address of the
companies in which the Respondent and his
spouse are the directors;
(ii) The quantum of loans taken by above such
companies are not disclosed/pleaded in the
election petition;
(iii) The loan account number and date of
sanction of the loan and the names and
addresses of the financial institutions/banks
from where the loans have been taken by above
such companies are not mentioned/pleaded in
the election petition;
69
(iv) The shares owned by the Respondent and
by his spouse in above such companies are not
disclosed/pleaded in the election petition;
(v) It has been alleged that M/s. Metro Builders
Pvt. Ltd., of which the Respondent was the
Managing Director, has taken huge amounts of
loans from Odisha Rural Housing Development
Corporation, which has been suppressed by the
Respondent in his affidavit filed in Form 26.
While making such allegation, the Election
Petitioner has completely failed to disclose/plead
the vital material facts to the effect that for
which period the Respondent was the Managing
Director of M/s Metro Builders Pvt. Ltd., when
the loan was taken by M/s. Metro Builders Pvt.
Ltd. from Odisha Rural Housing Development
Corporation, what is the loan account number(s)
sanctioning such huge amounts of loans, what is
the amounts of loans outstanding as on the date
against M/s. Metro Builders Pvt. Ltd., whether
the Respondent has any personal liability/
accountability with respect to such loans,
whether M/s. Metro Builders Pvt. Ltd. is a
separate entity in the eyes of law or not,
whether at present the Respondent has any
share and position in M/s. Metro Builders Pvt.
Ltd. or not, whether loans taken by M/s. Metro
Builders Pvt. Ltd. have been repaid or not. When
the Election Petitioner on one hand admits that
70
the Respondent was the Managing Director of
M/s. Metro Builders Pvt. Ltd., how on the other
hand the Election Petitioner pleads that it is
petitioner's company etc.;
(vi) The Election Petitioner has also failed to
plead that on account of above such allegations
as to why and how the result of the election, in
so far as it concerns the returned candidate, has
been materially affected.
(c) The allegation/pleading as enumerated
under (c) above is bereft of following material
facts-
(i) Part B of the affidavit consists of eleven
columns i.e. column (1) to (11). The column
number (11) of Part B in the format of the
affidavit requires disclosure of information
regarding highest educational qualification of the
candidate. Therefore, the allegation with respect
to column (11) of Part B of the affidavit filed in
Form 26 by the Respondent is not correct;
(ii) There is no column 8(i) or 8(iii) under Part
B of the affidavit in Form 26. Therefore, the
allegations made by the Election Petitioner with
respect to column 8(i) and 8(iii) are liable to be
discarded and struck down;
(iii) The Respondent under column 8(A) has
given the total value of his moveable assets and
71
his spouse's moveable assets clearly mentioning
the amounts as Rs.5,29,98,893/- and
Rs.50,74,701/- respectively. Similarly, under
column 8(B), the Respondent has disclosed the
total value of his immovable assets and total
value of his spouse's immovable assets clearly
mentioning the amount as Rs.7,44,39,768/- and
Rs.4,64,23,000/- respectively. Therefore, the
Respondent has complied with the requirement
of law by furnishing the information about his
total assets (movable and immovable) and his
spouse's assets (movable and immovable). The
Election Petitioner has made allegations
suppressing these material facts in his election
petition;
(iv) Further, the Election Petitioner while
making such bald allegations has completely
failed to plead as to how on account of such
allegations the result of the election, in so far as
it concerns the returned candidate, has been
materially affected.
Paragraph-7(G) of the election petition:
According to the Respondent, under paragraph-7(G)
of the election petition, the Election Petitioner has repeated the
allegations that the Respondent has not submitted his
nomination paper as required under law in the prescribed form
and that he has not filed the affidavit in Form 26 giving true and
72
correct declarations about his criminal cases, assets (both
movable and immovable) and liabilities of self and spouse for
which his nomination papers ought to have been rejected by the
Returning Officer as the respondent has not complied with the
requirement of section 33 of the 1951 Act.
According to the Respondent, such allegations in
paragraph-7(G) of the election petition are wholly unnecessary,
superfluous, frivolous, scandalous, vexatious and tend to
prejudice fair trial of the case inasmuch as the allegations are
bereft of material facts and do not disclose complete cause of
action.
Paragraph-7(H) of the election petition:
According to the Respondent, under paragraph-7(H)
of the election petition, the Election Petitioner has repeated the
same allegations to the effect that the Respondent has not filed
the nomination paper in the prescribed Form 2B and has not fully
disclosed about the criminal cases pending against him. The
Respondent has also not disclosed his assets (both movable and
immovable) correctly and the liabilities of himself and his spouse
in the affidavit filed in Form 26 along with his nomination paper.
The Returning Officer should have rejected the nomination
papers of the Respondent as the same was not filed in the
73
prescribed Form 2B and whatever has been filed is also with
blank particulars, but the Returning Officer illegally and
improperly accepted the nomination papers of the Respondent
though the same were not in the prescribed Form 2B.
According to the Respondent, such allegations in
paragraph-7(H) of the election petition are bereft of material
facts and that do not disclose complete cause of action inasmuch
as the same are wholly unnecessary, scandalous, frivolous,
vexatious and tend to prejudice, embarrass the fair trial of the
case and made with ulterior political motive to harass the
Respondent and those are nothing but an abuse of the process of
the Court on the grounds as described herein below:-
(i) As to why and how the nomination Form 2B
filed by the Respondent is to be treated that the
same is not in the prescribed Form 2B?
(ii) What are the columns of Form 2B filed by
the Respondent have not been filled up and the
same have been left blank?
(iii) What are the informations required to be
furnished in Form 2B and under which columns
of Form 2B, the Respondent has not furnished
such informations and left the same blank?
74
(iv) What are the consequences prescribed
under law if those columns have not been filled
up and have been left blank in the prescribed
Form 2B?
(v) As to whether non-filling of such columns in
Form 2-B filed by the Respondent render the
Respondent disqualified to contest the election?
(vi) As to whether any objection either orally or
written was raised by the Election Petitioner or
anybody else before the Returning Officer during
the course of scrutiny of nominations demanding
rejection of nominations filed by the Respondent
on account of such non-filling up of the columns
in Form 2B and/or for not furnishing the
required information in Form 2B as well as on
account of incorrect information/
misinformation/suppression of information in the
affidavit in Form 26 filed by the Respondent?
(vii) What are the informations furnished by the
Respondent in his affidavit in Form 26 which are
not correct?
(viii) What are the correct informations which
have been suppressed by the Respondent in his
Form 26 affidavit?
(ix) What are the material informations which
have been suppressed by the Respondent with
respect to criminal cases pending against him?
75
(x) What are the moveable assets and
immovable assets which have not been disclosed
correctly by the Respondent in his affidavit filed
in Form 26?
(xi) What are the liabilities which have not been
disclosed correctly and/or have been suppressed
by the Respondent in his affidavit filed in Form
26?
(xii) As to why and how on account of the
alleged blank particulars available in nomination
Form 2-B along with the incorrect information or
suppression of information in the affidavit in
Form 26 filed by the Respondent, the result of
the election in so far as it concerns the returned
candidate, has been materially affected, on the
basis of which the election of the Respondent is
liable to be declared void and be set aside?
According to the Respondent, the Returning Officer
after due scrutiny of the nomination paper in Form 2B including
the affidavit in Form 26 filed by the Respondent in accordance
with provisions of law in its proper perspective and after being
fully satisfied to the effect that the nomination paper in Form 2B
and affidavit in Form 26 filed by the Respondent have been filled
up furnishing all material information as required under law,
rightly and properly accepted the nomination of the Respondent.
76
The Election Petitioner having been failed to raise his
allegations/objections, if any, to the nomination of the
Respondent at the proper stage, at the proper time and before
the proper forum as envisaged under the law and after being
defeated in the election from the Respondent as per the mandate
of the electors in democratic process, raising such allegations/
objections only to fulfill his political vendetta against the
Respondent with an ulterior intention to harass the Respondent
and keep him engaged in unnecessary litigation so that the
Respondent fails to perform his duties wholeheartedly in public
interest for the development and welfare of his constituency. The
election petition is filed by the Election Petitioner with ulterior
political motive only to harass the Respondent which is nothing
but an attempt to abuse of the process of this Court.
Paragraph-7(I), 7(J) of the election petition:
According to the Respondent, under Paragraph-7(I)
and Paragraph-7(J), the Election Petitioner has once again
repeated the same allegations with respect to non-filing of Form
2B i.e. the nomination form as per the prescribed form and filing
of the affidavit in Form 26 dated 03.04.2019 along with the
nomination on 02.04.2019. According to the Respondent, on the
basis of the stands taken/points raised in the averments made in
77
preceding paragraphs, the allegations/pleadings made by the
Election Petitioner under paragraph-7(I) and Paragraph-7(J) of
the election petition are bereft of material facts and that do not
disclose complete cause of action inasmuch as such
allegations/pleadings are wholly unnecessary, frivolous,
vexatious, scandalous and tend to prejudice, embarrass the fair
trial of the case which is otherwise an abuse of the process of
this Court and as such the pleadings/allegations made in
Paragraph-7(I) and Paragraph-7(J) of the election petition are
liable to be struck down being hit by Order VI Rule 16 of the
C.P.C.
Issues framed:
4. On the basis of pleadings of the parties, the following
issues were framed:-
1. Whether the election petition as laid down is
maintainable in law or not?
2. Whether the Election Petitioner has cause of
action to file the election petition or not?
3. Whether the election petition is liable to be
dismissed under section 86(1) of the R.P. Act,
1951 for non-compliance of section 81(3) of the
R.P. Act, 1951 or not?
78
4. Whether striking/deletion of PART-II of his
nomination in Form-2B by the sole Respondent
in pursuance to the instruction given in the
prescribed nomination Form-2B renders the
nomination of the sole Respondent liable for
rejection of his nomination or not?
5. Whether the sole Respondent has furnished
all the required information as required in PART-
III of nomination Form-2B or not?
6. Whether the sole Respondent has furnished
all the required information as required in PART-
IIIA of Nomination Form-2B or not?
7. Whether the alleged defects as pointed out
by the Election Petitioner regarding deletion of
PART-II of nomination Form-2B as well as with
respect to PART-III and PART-IIIA of nomination
Form-2B do not constitute any substantial defect
and as such the nomination filed by the sole
Respondent is rightly accepted by the Returning
Officer as prescribed under section 36(4) of the
R.P. Act, 1951 or not?
8. Whether the Respondent filed his
nomination papers in violation of section 33 of
the R.P. Act, 1951?
9. Whether the Respondent has filed his
nomination papers before the Returning Officer
is in the prescribed Form-2B?
79
10. Whether PART-III of Form-2B of the
nomination papers filed by the Respondent is in
the prescribed Form?
11. Whether the Respondent has filled up PART-
IIIA of the nomination papers filed by him before
the Returning Officer of 90-Barabati Cuttack
Assembly Constituency and as to whether
Column nos.3 to 9 of PART-IIIA are in the
prescribed Form-2B?
12. Whether the nomination papers of the
Respondent was liable to be rejected by the
Returning Officer as the same was not in the
prescribed Form-2B and as to whether the
Returning Officer illegally and improperly
accepted the nomination papers filed by the
Respondent in violation of section 33 of the R.P.
Act, 1951 read with Rule 4 of the Conduct of
Election Rules, 1961?
13. Whether the Returning Officer should have
rejected the nomination of Respondent in
exercise of power under section 36 of the R.P.
Act, 1951 at the time of scrutiny of the
nomination papers?
14. Whether on account of the alleged defects
as pointed out by the Election Petitioner under
paragraph 7(A) of the Election Petition, the
result of the election in so far as it concerns the
80
returned candidate/sole Respondent has been
materially affected or not?
15. Whether the sole Respondent has filed his
affidavit in Form-26 dated 03.04.2019 along
with his nomination papers on 02.04.2019 or
has filed the said affidavit on 04.04.2019?
16. Whether the Returning Officer has received
the affidavit in Form-26 dated 03.04.2019 from
the sole Respondent on 04.04.2019 and has
issued a 'Checklist' dated 04.04.2019 to the sole
Respondent for the same or not?
17. Whether the sole Respondent has disclosed
all the criminal cases pending against him in his
affidavit in Form-26 dated 03.04.2019 as per the
prescribed format and instructions of Form-26 or
not?
18. Whether the Respondent has filed the
affidavit in the prescribed Form-26 as required
under section 33A of the R.P. Act, 1951 read
with Rule 4A of the Conduct of Election Rules,
1961?
19. Whether the affidavit dated 03.04.2019 in
Form-26 filed along with the nomination papers
on 02.04.2019 is valid and legal in the eyes of
law?
81
20. Whether the Returning Officer should have
rejected the nomination papers filed on
02.04.2019 along with the affidavit dated
03.04.2019 being non-est in the eyes of law but
the same was illegally and improperly accepted
by the Returning Officer of 90-Barabati Cuttack
Assembly Constituency?
21. Whether the Respondent has made proper
and full declaration about the criminal cases
pending against him in the affidavit filed in
Form-26?
22. Whether the Respondent has disclosed the
name and other details of the Joint Account
Holder of the Bank account no.1377010031593
in the Federal Bank Ltd. and about the A/c.
no.10861745745 in S.B.I. Main Branch, Cuttack
in the affidavit filed in Form-26?
23. Whether the sole Respondent is required
under law to disclose the name of the joint
account holder of the bank accounts standing in
his name in his Affidavit in Form-26 or not?
24. Whether the bank accounts as mentioned
under paragraph-7(D) of the Election Petition
stand in the name of the sole Respondent and
his wife Firdousia Bano with operational
instruction "Either or Survivor" or not?
82
25. Whether the Respondent has declared the
book value of the shares as per the books of the
company held by him in the affidavit filed in
Form-26?
26. Whether the Respondent has furnished the
details in the affidavit filed in Form-26 about the
investment made in his name and his spouse's
name in the insurance policies?
27. Whether the Respondent is required to give
details in respect of each investment made by
him and as to whether he has disclosed about
the loans given to the companies in the affidavit
filed in Form-26?
28. Whether the Respondent has disclosed true
and correct details of the properties held by him,
his spouse and dependents in the affidavit filed
in Form-26?
29. Whether mentioning the name of Mouza as
"Patpur" instead of "Patapur" in Cuttack district
creates any confusion or not?
30. Whether the sole Respondent has correctly
disclosed all the movable and immovable assets
of self and his spouse in his Affidavit in Form-26
dated 03.04.2019 or not?
31. Whether the Respondent has disclosed
about the loans taken by his company from
83
Orissa Rural Housing Development Corporation
(OHRDC)?
32. Whether the Respondent has declared the
purchase price and development/ construction
cost of immovable properties of his spouse in
the affidavit filed in Form-26?
33. Whether the result of the election has been
materially affected insofar as it concerns the
returned candidate/ sole Respondent on account
of the allegations made in the Election Petition
or not?
34. Whether the Returning Officer has rightly
and lawfully accepted the nomination of the sole
Respondent or not?
35. Whether the sole Respondent has been
declared duly elected as MLA from 90-Barabati
Cuttack Assembly Constituency by securing
lawful valid votes or not?
36. Whether the election of the Respondent
from the 90-Barabati Cuttack Assembly
Constituency is to be declared as void?
37. To what relief the Election Petitioner is
entitled to?
38. Whether the Election Petitioner has made
out a case and is entitled for any reliefs as
sought for in his Election Petition or not?
84
5. In order to prove its case, the Election Petitioner
examined three witnesses including himself as P.W.1. P.W.2
Dipankar Acharya is an Advocate, who stated that he had
downloaded copies of nomination papers along with the affidavits
filed on 02.04.2019 by the Respondent before the Returning
Officer of the Constituency from the web portal of Election
Commission of India. P.W.3 Sukanta Kumar Pradhan is the
Returning Officer in the General Assembly Election of the
Constituency held in the year 2019.
The election petitioner exhibited forty nine
documents.
The Respondent examined five witnesses including
himself as R.W.1. R.W.2 Santosh Kumar Lenka is a lawyer
practising at different Courts of Cuttack and Bhubaneswar, who
stated that during the last General Assembly Election held in the
year 2019, on request of the Respondent, he was looking after
the preparation of his affidavit in Form 26, particularly filling up
his pending criminal cases in Column No.5 of the said affidavit in
Form 26, R.W.3 Prashanta Kumar Mohanty, is a lawyer practising
at different Courts of Cuttack and Bhubaneswar, who stated that
during the last General Assembly Election held in the year 2019,
on request of the Respondent, he was looking after the
85
preparation of his affidavit in Form 26, particularly filling up
movable and immovable assets, liabilities etc. of the
Respondent, his spouse Firdousia Bano and his dependant
daughter Nayeema Tazeen in the Form 26, R.W.4 Sourjya
Prakash Mohapatra is a Chartered Accountant by profession, who
stated that on the request of the Respondent, he prepared his
financial statement and his spouse Firdousia Bano. R.W.5 Sofia
Firdous is the daughter of the Respondent and also the
authorised representative of the Respondent who attended the
scrutiny of nominations on his behalf on 05.04.2019 before the
Returning Officer (P.W.3) during the last General Assembly
Election held in the year 2019.
The Respondent exhibited one hundred fifty one
documents.
6. In a democratic set up, the election of a returned
candidate should not be made easily vulnerable to vague
allegations or to averments made in an election petition which is
not substantiated or supported by positive, cogent and reliable
evidence. The verdict given by the majority of voters in a
constituency in favour of an elected candidate to represent a
constituency in a State Legislative Assembly or Parliament
cannot be lightly annulled or negatived in the absence of specific,
86
acceptable and convincing evidence in support of the grounds
raised in an election petition. (Ref:- Tek Chand -Vrs.- Dile
Ram : (2001) 3 Supreme Court Cases 290). Election of a
returned candidate cannot be set aside on presumptions,
surmises or conjectures. There must be clear and cogent proof in
support of the allegations. (Ref:- Uma Ballav Rath -Vrs.-
Maheshwar Mohanty : (1999) 3 Supreme Court Cases
357). An election petition must clearly and unambiguously set
out all the material facts which the petitioner is to rely upon
during the trial, and it must reveal a clear and complete picture
of the circumstances and should disclose a definite cause of
action. One cannot file an election petition based on frivolous
grounds. The facts presented must be clear, concise and
unambiguous. An election result, where the people elect their
representatives cannot be taken lightly. For an election result to
be annulled, there must be positive evidence to prove illegality of
the election. The natural corollary is that the person, who files an
election petition, must have a clear and definite case, to prove
that the election was illegal. (Ref:- M. Chandra -Vrs.- M.
Thangamuthu & Another : (2010) 9 Supreme Court Cases
712). It is settled law that in an election petition, the burden of
proof lies upon the election petitioner to prove and substantiate
87
his allegations in order to get the relief(s) sought for. It is
necessary so that the purity of the election process is
maintained. What evidence would be sufficient to prove a
particular fact depends upon the circumstances of each case.
When the evidence adduced is capable of drawing an inference
either way, the view that is favourable to the returned candidate
will have to be preferred.
7. Mr. Milan Kanungo, learned Senior Advocate being
ably assisted by Mr. Gopal Agarwal emphatically contended in his
own inimitable elegant style that there are sufficient materials on
record to substantiate that nomination of the Respondent have
been improperly and illegally accepted and thus, the entire
process of election to the Constituency is vitiated. The
nomination papers are not in the prescribed Form 2B and the
Respondent has filed false affidavit in Form 26 along with the
nomination papers and therefore, the result of the election of the
Constituency being materially affected is to be declared void and
to be set aside.
Mr. Bidyadhar Mishra, learned Senior Advocate being
ably assisted by Mr. Tarini Kanta Biswal, on the other hand,
argued that in view of the facts/pleadings, both documentary and
oral evidences, the conclusion is irresistible that the Election
88
Petitioner has signally failed to prove his allegations made in the
election petition and therefore, the election petition is liable to be
dismissed with exemplary cost.
8. Adverting to the contentions raised and keeping in
view the principles laid down in the matter of appreciation of
evidence in an election dispute case, let me discuss and decide
all the issues framed with reference to the evidence on record, in
detail.
Issue Nos.1, 2 & 3:-
Issue nos.1, 2 and 3 are whether the election
petition as laid down is maintainable in law or not, whether the
election petitioner has cause of action to file the election petition
or not and whether the election petition is liable to be dismissed
u/s 86(1) of the R.P. Act, 1951 for non-compliance of section
81(3) of the R.P. Act, 1951 or not.
The learned counsel for the Respondent did not
advance any argument regarding issue no.(1) i.e. maintainability
of election petition and issue no.(2) i.e. cause of action to file the
election petition nor made any comments on these two issues in
his written note of submission.
89
Section 81(3) of the R.P. Act, 1951 prescribes that
every election petition shall be accompanied by as many copies
thereof as there are respondents mentioned in the petition, and
every such copy shall be attested by the petitioner under his own
signature to be a true copy of the petition.
Section 86(1) of the R.P. Act, 1951 prescribes that
the High Court shall dismiss an election petition which does not
comply with the provisions of section 81 or section 82 or section
117. The Explanation to section 86(1) states that an order of the
High Court dismissing an election petition under this sub-section
shall be deemed to be an order made under clause (a) of section
98.
It seems these issues were raised preliminarily by
the Respondent by filing I.A. No.20 of 2019 praying to strike out
the pleadings made under paragraph 7(A) to 7(J) of the election
petition with a further prayer to reject the election petition at the
threshold in its entirety for want of cause of action without
entering into the merits of the case. The said I.A. was dismissed
by order dated 20.06.2022 with a finding that dismissal of
election petition at the threshold for want of cause of action is
not tenable in the eye of law. The order dated 20.06.2022
passed in the said I.A. was challenged by the Respondent before
90
the Hon'ble Supreme Court in SLP(C) No.12653 of 2022, but the
Hon'ble Court refused to interfere with the order passed by this
Court and dismissed the SLP vide order dated 29.07.2022.
After dismissal of I.A. No.20 of 2019, the Respondent
again filed I.A. No.19 of 2022 praying to dismiss the election
petition u/s 86(1) of the R.P. Act, 1951 on account of non-
compliance of provision u/s 117 of the R.P. Act, 1951. During the
hearing of the I.A., a report was called for from the learned
Registrar (Judicial) of this Court as to whether cash of Rs.2,000/-
(rupees two thousand) has been deposited on 03.07.2019 and
the challan as has been annexed to the election petition was
issued on the very day or not and filed with the election petition
on that day or not and it was also directed to be indicated in the
report as to whether Rule 1 of Chapter XXII of the Rules of High
Court of Orissa, 1948 has been followed or not. Basing on the
reports of the Cashier and Superintendent, M.J.C. Section, the
learned Registrar (Judicial) reported that a cash of Rs.2,000/-
(rupees two thousand) had been deposited on 03.07.2019 with
the Cashier, the challan was issued on 03.07.2019 and it was
filed with the election petition on 03.07.2019 and thus Rule-1 of
Chapter-XXII of the Rules of the High Court of Orissa, 1948 had
been followed while filing the Election Petition. Accordingly, this
91
Court by order dated 23.09.2022 dismissed the same holding
that filing of this I.A. is an attempt just to delay the trial of the
election petition.
During argument, it was submitted on behalf of the
Respondent on issue no.3 that, the election petition is liable to
be dismissed for non-compliance of section 81(3) and section
117 of the R.P. Act, 1951 as the copy of challan served on the
Respondent is not the exact and true copy of the challan
appended to the original election petition. The challan served on
the Respondent was xeroxed before the deposit was made.
On the other hand, it is argued on behalf of the
Election Petitioner that after receipt of election petition along
with copy of the challan, the Respondent filed the written
statement and he has not raised the plea that the averments
made in para 9 of the election petition, that "At the time of
presenting the election petition, the Election Petitioner has
deposited a sum of Rs.2,000/- only towards security for cost of
the petition as required u/s 117 of the R.P. Act, 1951 and in
accordance with the Rules of the High Court along with the
Election Petition" are false and the copy of the challan served on
the Respondent is not exact and true copy of the challan and has
also not raised the plea that on account of non-service of exact
92
and true copy of the challan, the Respondent is prejudiced in any
manner. Section 117 of the R.P. Act, 1951 mandates that at the
time of presenting an election petition, the petitioner shall
deposit in the High Court in accordance with the rules of High
Court a sum of Rs.2,000/- (rupees two thousand) as security for
the costs of the petition. Section 81(3) of the R.P. Act, 1951
mandates only service of exact and true copy of the election
petition on the Respondent which has been served and similarly,
the xerox copy of the challan of deposit of a sum of Rs.2,000/-
has also been served and therefore, non-compliance of provision
under section 81(3) of the R.P. Act, 1951 as contended by the
Respondent is not sustainable.
It is further argued on behalf of the Election
Petitioner that the Respondent filed I.A. No.20 of 2019 under
Order VI Rule 16 and Order 7 Rule 11 r/w Order 7 Rule 14 C.P.C.
r/w sections 83, 86 and 87 of the R.P. Act, 1951 praying to
dismiss the election petition at the threshold for non-compliance
of section 83 of the R.P. Act, 1951. In the said I.A also, the
Respondent had not raised any plea regarding the service of
exact and true copy of challan along with the election petition.
Subsequently, the Respondent again filed I.A No.19/2022 u/s
86(1) of the R.P. Act, 1951 for dismissal of the election petition
93
on the ground of non-compliance of provision contained u/s 117
of the R.P. Act, 1951 and after hearing, this Court by order dated
23.09.2022 dismissed the same.
Rule-6 of Chapter XXXIII of Orissa High Court Rules,
1948 which deals with the Rules to regulate proceedings under
section 80A of the R.P. Act, 1951 states that the election petition
shall be presented along with the necessary copies. All copies of
the petition shall conform to the original, page by page.
Adverting to the contentions raised by the learned
counsel for the parties, it is not in dispute that the challan of
Rs.2,000/- showing deposit of security for costs of the petition is
an integral part of the election petition and without the said
challan, the election petition is incomplete. According to the
learned counsel for the Respondent, the requirement of section
81(3) of the R.P. Act, 1951 is also applicable to the challan filed
along with the election petition. It is urged that a bare
comparison of the original challan (Ext.AD/1) with that of
Ext.AB/2 and Ext.AC/2, it will be abundantly clear that Ext.AB/2
and Ext.AC/2 are not true copy of Ext.AD/1 inasmuch as
Ext.AD/1 contains the "Received Payment stamp" upon the
endorsement of the Cashier showing receipt of Rs.2000/-
whereas Ext.AB/2 and Ext.AC/2 do not contain the said
94
"Received Payment stamp". The second copy of the Challan
available in Court record after Ext.AD/1 contains the signature of
the Accountant as well as the "Received Payment stamp" upon
the endorsement of the Cashier showing receipt of Rs.2000/-
whereas Ext.AB/2 and Ext.AC/2 do not contain the signature of
the Accountant as well as the said "Received Payment stamp".
A bare perusal of Ext.AD/1 challan appended to the
original election petition available in Court record and Ext.AB/2
and AC/2 i.e. challan served on the Respondent shows that the
amount, the signature of the cashier with date, the challan
number are there and the only missing thing is the seal 'received
payment'. It is also not the case of the Respondent that deposit
of a sum of Rs.2,000/- by way of challan has not been made.
The Respondent has also not stated anything that as to how he
is prejudiced due to non-availability of seal on the challan served
on him.
Learned counsel for the Election Petitioner placed
reliance in the cases of T.M. Jacob -Vrs.- C. Poulose and
Others reported in (1999) 4 Supreme Court Cases 274, M.
Karunanidhi -Vrs.- H.V. Hande & Others reported in
(1983) 2 Supreme Court Cases 473, M.Y. Ghorpade -Vrs.-
Shivaji Rao M. Poal and Others reported in (2002) 7
95
Supreme Court Cases 289 and A. Madan Mohan -Vrs.-
Kalavakunta Chandra Sekhara reported in (1984) 2
Supreme Court Cases 288.
In the case of T.M. Jacob (supra), the Hon'ble
Supreme Court held as follows:-
9. After leave was granted by this Court, the
following order was made on 18-12-1997:
"The main point urged by the learned
counsel for the appellant is that a copy of
the affidavit supplied to the appellant
together with the notice of the election
petition is not a true copy inasmuch as it
does not indicate the name and
designation of the Notary nor does it bear
the seal and stamp of the Notary. On this
basis, it is contended that there is non-
compliance of Section 81(3) because of
which the election petition is liable to be
dismissed at the threshold under Section
86(1) of the Representation of the People
Act. Shri Sorabjee, learned counsel for
the appellant places reliance on the
decision in Dr Shipra -Vrs.- Shanti Lal
Khoiwal : (1996)5 SCC 181 particularly
the opinion of Justice Paripoornan therein
read with that of Justice K. Ramaswamy.
Shri Sorabjee submits that even though
from the supplementary opinion of Justice
96
Bharucha, contained in para 17 of the
Report, identity on this point may not be
explicit but there being no reservation in
the opinion of Justice Bharucha on this
point, this view is to be construed as the
unanimous decision of the three-Judge
Bench.
Having heard Shri Sorabjee, we are
not too sure that the principle indicated in
the said decision can apply to the facts of
the present case but certain wide
observations, in the opinion of Justice
Paripoornan and Justice K. Ramaswamy,
may support the appellant's contentions.
In our opinion, the matter would,
therefore, require reconsideration by a
larger Bench to decide whether even in a
case like the present one, the decision in
Dr. Shipra -Vrs.- Shanti Lal Khoiwal
can apply.
The papers be laid before the Chief
Justice for constitution of a larger Bench."
xxx xxx xxx
21. Reverting now to the facts of the present
case. A perusal of the copy of the affidavit
served on the appellant shows that the copy of
the affidavit supplied to the appellant contained
the endorsement that the affidavit had been
duly affirmed, signed and verified by Respondent
1 before a Notary. Under the affirmation by the
97
Notary, the words, "sd/- Notary" were also
written. What was, however, found missing in
the copy of the affidavit was the name and
address of the Notary as well as the stamp and
seal of the Notary before whom the affidavit had
been so affirmed and who had attested the
affidavit.
22. The defect found in the present case is
almost identical to the defect which had been
found in the copy of the affidavit supplied to the
first respondent in Anil R. Deshmukh case. The
defect is materially different from the defect
found in Dr. Shipra case where the true copy of
the election petition furnished by the election
petitioner to the successful candidate did not
show that the affidavit filed in support of the
allegation of corrupt practices had been duly
sworn or affirmed and verified by the election
petitioner before a Notary, whose attestation
was also found missing.
xxx xxx xxx
30. The precise objection of Mr. Harish Salve,
learned Senior Counsel based on Section 81(3)
of the Act as already noticed is that the true
copy of the affidavit filed in support of the
allegations of corrupt practice in Form 25 as
required by Rule 94-A had not been served on
the appellant inasmuch as in the copy served on
the appellant, the name and other particulars of
the Notary and the seal and stamp of the
98
Notary, which had been affixed on the affidavit
filed along with the election petition, were
conspicuous by their absence. According to Mr.
Salve, the variation between the affidavit filed
by the election petitioner in support of the
allegations of corrupt practice and the copy
served on the appellant had rendered the copy
as not a "true copy" of the original and
notwithstanding the difference between Dr.
Shipra case and the present one, the election
petition ought to have been dismissed for non-
compliance with Section 81(3) of the Act. For
what follows we are not persuaded to agree.
31. Section 81 of the Act deals with the
presentation of election petitions. Sub-section
(1) of Section 81 provides that an election
petition calling in question any election may be
presented on one or more of the grounds
specified in Section 100(1) and Section 101 to
the High Court by any candidate at such election
or by any elector within forty-five days from the
date of the election of the returned candidate.
Some of the relevant provisions of the Act are:
"81.(3) Every election petition shall be
accompanied by as many copies thereof
as there are respondents mentioned in
the petition, and every such copy shall be
attested by the petitioner under his own
signature to be a true copy of the
petition."
99
xxx xxx xxx
33. Does the word "copy" occurring in Section
81(3) of the Act mean an absolutely exact copy
or does it mean a copy so true that nobody
could by any possibility misunderstand it. This
matter is no longer res integra. In Murarka
Radhey Shyam Ram Kumar -Vrs.- Roop
Singh Rathore a Constitution Bench of this
Court elaborately dealt with this question after
referring to a catena of authorities. It was held
that the test to determine whether a copy was a
true one or not was to find out whether any
variation from the original was calculated to
mislead a reasonable person. The Constitution
Bench found as untenable the contention that
since copies of the petition served on the
returned candidate did not contain the
signatures of the petitioner below the word
"petitioner", on the copies of the petition served
on the respondent, they had ceased to be true
copies of the original petition, attracting the
consequences of Section 86(1) of the Act. The
Bench opined:
"Having regard to the provisions of Part
VI of the Act, we are of the view that the
word 'copy' does not mean an absolutely
exact copy. It means a copy so true that
nobody can by any possibility
misunderstand it. The test whether the
100
copy is a true one is whether any
variation from the original is calculated to
mislead an ordinary person. Applying that
test we have come to the conclusion that
the defects complained of with regard to
Election Petition No. 269 of 1962 were
not such as to mislead the appellant;
therefore there was no failure to comply
with the last part of sub-section (3) of
Section 81. In that view of the matter
sub-section (3) of Section 90 was not
attracted and there was no question of
dismissing the election petition under that
sub-section by reason of any failure to
comply with the provisions of Section
81."
The Bench also opined:
"When every page of the copy served on
the appellant was attested to be a true copy
under the signature of the petitioner, a
fresh signature below the word 'petitioner'
was not necessary. Sub-section (3) of
Section 81 requires that the copy shall be
attested by the petitioner under his own
signature and this was done. As to the
second defect the question really turns on
the true scope and effect of the word 'copy'
occurring in sub-section (3) of Section 81.
On behalf of the appellant, the argument is
101
that sub-section (3) of Section 81 being
mandatory in nature, all the requirements
of the sub-section must be strictly complied
with and the word 'copy' must be taken to
be an absolutely exact transcript of the
original. On behalf of the respondents the
contention is that the word 'copy' means
that which comes so near to the original as
to give to every person seeing it the idea
created by the original. Alternatively, the
argument is that the last part of sub-section
(3) dealing with a copy is merely directive,
and for this reliance is placed on the
decision of this Court in K. Kamaraja
Nadar -Vrs.- Kunju Thevar [A.I.R. 1958
S.C. 687 : 1959 S.C.R. 583]. We are of
the view that the word 'copy' in sub-section
(3) of Section 81 does not mean an
absolutely exact copy, but means that the
copy shall be so true that nobody can by
any possibility misunderstand it (see
Stroud's Judicial Dictionary, Third Edn., Vol.
4, p. 3098). In this view of the matter it is
unnecessary to go into the further question
whether any part of sub-section (3) of
Section 81 is merely directory."
34. Similar view was reiterated by another
Constitution Bench in Ch. Subbarao -Vrs.-
Member, Election Tribunal, Hyderabad
wherein it was held that the expression "copy"
102
occurring in Section 81(3) of the Act did not
mean an exact copy but only one so true that no
reasonable person could by any possibility
misunderstand it as not being the same as the
original. Agreeing with the view of the
Constitution Bench in Murarka Radhey Shyam
Ram Kumar case the Constitution Bench in Ch.
Subbarao case ruled that substantial
compliance with Section 81(3) was sufficient and
the petition could not be dismissed where there
had been substantial compliance with the
requirements of Section 81(3) of the Act, in
limine, under Section 81(1) of the Act. We are in
respectful agreement with the view expressed
by the Constitution Bench in Murarka Radhey
Shyam Ram Kumar case as well as in Ch.
Subbarao case.
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
103
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.
37. We have already referred to the defect which
has been found in the copy of the affidavit
served on the appellant in the present case.
There is no dispute that the copy of the affidavit
served on the appellant contained the
endorsement to the effect that the affidavit had
been duly signed, verified and affirmed by the
election petitioner before a Notary. Below the
endorsement of attestation, it was also
mentioned:
sd
Notary
There, however, was an omission to mention the
name and particulars of the Notary and the
stamp and seal of the Notary in the copy of the
affidavit served on the appellant. There was no
other defect pointed out either in the memo of
objection or in CMP No. 2903 of 1996 or even
during the course of arguments in the High
Court or before us. Could this omission be
104
treated as an omission of a vital or material
nature which could possibly mislead or prejudice
the appellant in formulating his defence? In our
opinion: No. The omission was inconsequential.
By no stretch of imagination can it be said that
the appellant could have been misled by the
absence of the name and seal or stamp of the
Notary on the copy of the affidavit, when
endorsement of attestation was present in the
copy which showed that the same had been
signed by the Notary. It is not denied that the
copies of the election petition and the affidavit
served on the appellant bore the signatures of
Respondent 1 on every page and the original
affidavit filed in support of the election petition
had been properly signed, verified and affirmed
by the election petitioner and attested by the
Notary. There has, thus, been a substantial
compliance with the requirements of Section
81(3) read with the proviso to Section 83(1)(c)
of the Act. Defects in the supply of true copy
under Section 81 of the Act may be considered
to be fatal, where the party has been misled by
the copy on account of variation of a material
nature in the original and the copy supplied to
the respondent. The prejudice caused to the
respondent in such cases would attract the
provisions of Section 81(3) read with Section
86(1) of the Act. The same consequence would
105
not follow from non-compliance with Section 83
of the Act.
38. We are unable to agree with Mr. Salve that
since proceedings in election petitions are purely
statutory proceedings and not "civil proceedings"
as commonly understood, there is no room for
invoking and importing the doctrine of
substantial compliance into Section 86(1) read
with Section 81(3) of the Act. It is too late in the
day to so urge. The law as settled by the two
Constitution Bench decisions of this Court
referred to above is by itself sufficient to repel
the argument of Mr. Salve. That apart, to our
mind, the legislative intent appears to be quite
clear, since it divides violations into two classes
-- those violations which would entail dismissal
of the election petition under Section 86(1) of
the Act like non-compliance with Section 81(3)
and those violations which attract Section 83(1)
of the Act, i.e., non-compliance with the
provisions of Section 83. It is only the violation
of Section 81 of the Act which can attract the
application of the doctrine of substantial
compliance as expounded in Murarka Radhey
Shyam and Ch. Subbarao cases. The defect of
the type provided in Section 83 of the Act, on
the other hand, can be dealt with under the
doctrine of curability, on the principles contained
in the Code of Civil Procedure. This position
106
clearly emerges from the provisions of Sections
83(1) and 86(5) of the Act which read thus:
"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
(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:
* * *
86. Trial of election petitions.-
(5) The High Court may, upon such terms
as to costs and otherwise as it may deem
fit, allow the particulars of any corrupt
practice alleged in the petition to be
amended or amplified in such manner as
may in its opinion be necessary for
ensuring a fair and effective trial of the
petition, but shall not allow any
amendment of the petition which will
107
have the effect of introducing particulars
of a corrupt practice not previously
alleged in the petition."
39. Applying the test as laid down in Murarka
Radhey Shyam Ram Kumar case to the fact
situation of the present case, we come to the
conclusion that the defects complained of in the
present case were not such as could have misled
the appellant at all. The non-mention of the
name of the Notary or the absence of the stamp
and seal of the Notary in the otherwise true copy
supplied to the appellant could not be construed
to be an omission or variation of a vital nature
and thus the defect, if at all it could be
construed as a defect, was not a defect of any
vital nature attracting the consequences of
Section 86(1) of the Act. Under the
circumstances, it must be held that there was no
failure on the part of the election petitioner to
comply with the last part of sub-section (3) of
Section 81 of the Act and, under the
circumstances, Section 86(1) of the Act was not
attracted and the election petition could not
have been dismissed by reason of the alleged
failure to comply with the provisions of Section
81 of the Act. In this connection, it is also
relevant to note that the appellant, neither in
the memo of objections nor in the written
objections or in CMP No. 2903 of 1996 has
alleged that he had been misled by the absence
108
of the name, rubber stamp and seal of the
Notary on the copy of the affidavit supplied to
him or that he had been prejudiced to formulate
his defence. Even during the arguments, learned
counsel for the appellant was not able to point
out as to how the appellant could have been
prejudiced by the alleged omissions on the copy
of the affidavit served on him.
40. In our opinion, it is not every minor variation
in form but only a vital defect in substance
which can lead to a finding of non-compliance
with the provisions of Section 81(3) of the Act
with the consequences under Section 86(1) to
follow. The weight of authority clearly indicates
that a certain amount of flexibility is envisaged.
While an impermissible deviation from the
original may entail the dismissal of an election
petition under Section 86(1) of the Act, an
insignificant variation in the true copy cannot be
construed as a fatal defect. It is, however,
neither desirable nor possible to catalogue the
defects which may be classified as of a vital
nature or those which are not so. It would
depend upon the facts and circumstances of
each case and no hard and fast formula can be
prescribed. The tests suggested in Murarka
Radhey Shyam case are sound tests and are
now well settled. We agree with the same and
need not repeat those tests. Considered in this
background, we are of the opinion that the
109
alleged defect in the true copy of the affidavit in
the present case did not attract the provisions of
Section 86(1) of the Act for alleged non-
compliance with the last part of Section 81(3) of
the Act and that there had been substantial
compliance with the requirements of Section
81(3) of the Act in supplying 'true copy' of the
affidavit to the appellant by the respondent."
In the case of M. Karunanidhi (supra), the Hon'ble
Supreme Court held as follows:-
3. At the last general election to the State
Legislative Assembly of Tamil Nadu from the
Anna Nagar Assembly Constituency No. 8 held in
May 1980, the appellant, M. Karunanidhi, leader
of the Dravida Munnetra Kazhagam Party,
contested as a candidate of that Party and
secured 51290 votes. As against this, the
respondent Dr. H.V. Hande sponsored as a
candidate by the All India Anna Dravida
Munnetra Kazhagam secured 50591 votes. On
June 1, 1980 the appellant, M. Karunanidhi, was
consequently declared elected by a margin of
699 votes. The last date for filing an election
petition to challenge his election was July 16,
1980. On July 14, 1980 the respondent, Dr. H.V.
Hande, filed an election petition under Section
81 read with Section 100 of the Representation
of the People Act, 1951 (for the sake of brevity
hereinafter referred to as "the Act") challenging
110
the election of the appellant on various grounds.
The election petition was accompanied by a pre-
receipted challan prepared by the Accounts
Department of the High Court on the basis of a
lodgment schedule initialled by the Assistant
Registrar II, High Court, showing that a sum of
Rs.2,000/- had been credited on July 11, 1980,
to the account of the Registrar, High Court,
Madras, in the Reserve Bank of India, Madras,
as security for costs along with the lodgment
schedule signed by the Assistant Registrar II.
xxx xxx xxx
5. On October 30, 1980 the appellant filed his
written statement. He pleaded, inter alia, that
the election petition was liable to be dismissed in
limine under sub-section (1) of Section 86 due
to non-compliance with the requirements of sub-
section (1) of Section 117 of the Act read with
Rule 8 of the Madras High Court (Election
Petitions) Rules, 1967, for the reason that there
was no deposit of Rs.2,000/- in cash in the High
Court as security for costs, and also for non-
compliance with the requirements of sub-section
(3) of Section 81 of the Act as the copy of the
election petition served on the appellant was not
accompanied by a copy of the photograph of the
alleged fancy banner annexed to the petition, as
alleged in para 18(b) of the petition. The
appellant accordingly raised a preliminary
111
objection as to the maintainability of the election
petition.
6. The High Court by its order dated December
1, 1980, overruled both the preliminary
objections. In regard to the objection based on
sub-section (1) of Section 117 of the Act read
with Rule 8 of the Madras High Court (Election
Petitions) Rules, 1967 (for short "the Election
Petitions Rules"), the High Court held that a sum
of Rs.2,000/- as security amount had been
deposited by the respondent in the Reserve
Bank of India to the credit of the Registrar, High
Court, at the instance of the High Court, and in
accordance with the procedure followed for
deposit of amounts in court. In reaching that
conclusion, the High Court relied upon the
lodgment schedule presented by K.
Subramaniam, counsel for the respondent,
which had been prepared in the Registry by the
Assistant Registrar II, and the challan in
triplicate prepared by the Accounts Department
of the High Court and signed by the official
referee specifying the amount and the date
within which it had to be deposited. It held that
the requirements of sub-section (1) of Section
117 of the Act read with Rule 8 of the Election
Petitions Rules for the making of the deposit of
Rs.2,000/- as security for costs in the High
Court were mandatory but the manner of
making such deposit was directory and as the
112
amount of Rs.2,000/- had, in fact, been
deposited to the credit of the Registrar, High
Court, within the time allowed therefor, there
was substantial compliance with the
requirements of sub-section (1) of Section 117
of the Act. As regards the objection based on the
non-supply of a copy of the photograph of the
fancy banner adverted to in para 18(b), the High
Court relying upon the decision of this Court in
Sahodrabai Rai -Vrs.- Ram Singh Aharwar
held that the banner could not be treated to be
an integral part of the election petition but was
merely a piece of evidence as to the nature and
type of fancy banners erected by the appellant
and therefore failure to supply a copy of the
photograph to the appellant did not amount to a
breach of the provisions contained in sub-section
(3) of Section 81 of the Act. These findings were
reached by the High Court on the basis of the
affidavits filed by the parties and the material on
record. The High Court had also before it a
report from the Registry as to the procedure
followed with regard to Court deposits:
"Any person desirous of paying money
into Court shall present a lodgement
schedule, duly vouched by the
concerned Section regarding the
quantum and the time limit, and
initialled by the Officers of Original Side
or Appellate Side as the case may be, to
113
the Accounts Department for the issue
of a Challan to enable the party to make
the payment into Reserve Bank of India,
Madras to the credit of the case
concerned. On the presentation of the
lodgement schedule to the Accounts
Department a Challan in triplicate
specifying the amount and the date
within which it should be paid will be
issued by the Accounts Department to
the person, desirous of making such
payment, who will deliver the Challan to
the Bank. The Bank in turn after deposit
deliver one part of the Challan duly
signed to the person making the
payment. On the production of the
Challan, the Accounts Department will
make necessary credit entries in the
ledgers and the receipt registers. The
remaining two parts of the Challan are
sent by Reserve Bank of India, Madras
to Pay and Accounts Office, which in
turn sends one part of it to this Office.
Sometimes it takes about one or two
months to receive the said Challan from
the Pay and Accounts Office. In cases
where advocates do not produce one
part of Challan in Accounts Department,
credit entries are made on the strength
of the Challan from Pay and Accounts
114
Office and the pass book from the
Reserve Bank of India, Madras.
Official receipt for such deposits
are issued under the signature of the
Assistant Registrar (Original Side) for
Original Side Deposits and of the Deputy
Registrar for Appellate Side Deposits to
such of those parties who produce one
part of the Challan and make a request
for official receipt to that effect.
It is also submitted that Accounts
Department will not receive cash without
specific orders to that effect.
This is the procedure that is being
followed by the Accounts Section of High
Court with regard to Court Deposits."
7. It is against this order of the High Court that
this appeal was filed. The appeal was first heard in
April 1981, and this Court by its Order dated April
2, 1981, remitted back the issue with regard to the
alleged non-compliance with the requirements of
sub-section (1) of Section 117 read with Rule 8 of
the Election Petitions Rules to the High Court for a
decision afresh, as it was felt that the point raised
was primarily a matter of evidence, but the parties
had unfortunately not led any evidence on the
point. It accordingly directed the High Court to
record the evidence that may be adduced as
regards the practice and procedure followed by the
High Court in regard to the making of an election
115
petition under Section 81 of the Act and the
manner in which the security amount of Rs.2,000/-
was deposited in the High Court in compliance with
the requirements of sub-section (1) of Section 117
of the Act read with Rule 8 of the Election Petitions
Rules.
8. After the issue was remitted, the High Court
allowed the parties to lead their evidence both oral
as well as documentary and has recorded its
findings dated July 20, 1981. The High Court
adhered to its earlier view that on a construction of
sub-section (1) of Section 117 of the Act, the
factum of making of deposit of Rs.2,000/- as
security for costs in the High Court was mandatory
but the manner of making such deposit was
directory and further held that although there was
no strict or literal compliance with the
requirements of Rule 8 of the Election Petitions
Rules, there had been substantial compliance with
the requirements of sub-section (1) of Section 117
of the Act, in that the requisite amount of
Rs.2,000/- had actually been deposited to the
credit of the Registrar, High Court, in the Reserve
Bank of India on July 11, 1980, that is, before the
election petition was filed on July 14, 1980, and
the same was available for payment of costs. In
the connected cases also, the High Court reached
the same conclusion after taking evidence of the
respective parties.
xxx xxx xxx
116
42. The conclusion is irresistible that the words
"copies thereof" in sub-section (3) of Section 81
read in the context of sub-section (2) of Section 83
must necessarily refer not only to the election
petition proper but also to schedules or annexures
thereto containing particulars of any corrupt
practice alleged therein. That being so, we are
constrained to reverse the judgment of the High
Court insofar as it holds that the photograph of the
fancy banner adverted to in para 18(b) could not
be treated to be an integral part of the election
petition but was merely a piece of evidence as to
the nature and type of fancy banner erected by the
appellant and therefore failure to supply a copy of
the photograph to the appellant did not amount to
a violation of the provisions of sub-section (3) of
Section 81 of the Act.
43. For these reasons, all the appeals and special
leave petitions except Civil Appeal No. 38(NCE) of
1981 must fail and are dismissed. Civil Appeal No.
38(NCE) of 1981 partly succeeds and is allowed.
The judgment of the High Court holding that the
amount of Rs.2000 having been deposited to the
credit of the Registrar, High Court in the Reserve
Bank of India on the strength of pre-receipted
challans issued by the Accounts Department on the
basis of a lodgment schedule, there was
substantial compliance of the requirements of sub-
section (1) of Section 117 of the Act, is upheld. But
the judgment of the High Court is set aside insofar
117
as it holds that the failure to supply a copy of the
photograph of the fancy banner referred to in para
18(b) along with a copy of the election petition to
the appellant did not amount to a breach of the
provisions contained in sub-section (3) of Section
81 of the Act, and instead we hold that the failure
to do so amounted to non-compliance of sub-
section (3) of Section 81 inasmuch as the
photograph of the fancy banner was an integral
part of the election petition and therefore the
election petition must be dismissed summarily
under sub-section (1) of Section 86 of the
Representation of the People Act, 1951. We further
direct that the High Court shall permit the
appellant to withdraw the recrimination petition
filed by him under Section 97 of the Act in terms of
the undertaking given by learned counsel for the
appellant during the course of the hearing of the
appeal."
In the case of M.Y. Ghorpade (supra), the Hon'ble
Supreme Court was hearing the appeal against an order of the
Karnataka High Court which had dismissed a preliminary
objection raised by the respondent in the election petition
(appellant before the Hon'ble Supreme Court) as to non-
compliance of requirement under section 117 of the Act by the
election petitioner. While adjudicating as to whether there has, in
118
fact, been non-compliance of section 117, the Hon'ble Apex
Court observed as follows:-
"1....The only question that arises for
consideration in the appeal is whether there has
been non-compliance with Section 117 of the
Act. Section 86 of the Act in Chapter III deals
with the trial of election petition and Section
86(1) states that the High Court shall dismiss an
election petition which does not comply with the
provisions of Section 81 or Section 82 or Section
117. Section 117 of the Act deals with the
security for cost and reads thus:
"117. Security for costs.--(1) At the
time of presenting an election petition,
the petitioner shall deposit in the High
Court in accordance with the Rules of
the High Court a sum of two thousand
rupees as security for the costs of the
petition.
(2) During the course of the trial of an
election petition, the High Court may, at
any time, call upon the petitioner to give
such further security for costs as it may
direct."
xxx xxx xxx
5. Before examining the different decisions of
this Court on which the parties have relied upon
and looking at the provision of Section 117 of
the Act, it is crystal clear to us that the aforesaid
119
provision requires deposit of Rs.2,000/- as
security for the cost has to be made at the time
of presenting an election petition. The object of
having the aforesaid provision could be to
discourage entertaining frivolous election
petitions and to make provision for cost in
favour of the parties who ultimately succeed in
the election petition. Sub-section (2) of Section
117 authorises the High Court to call upon an
election petitioner during the course of the trial
of an election petition, to give such further
security which may be necessary, depending
upon the facts and circumstances of the case. It
would, therefore, be apparent that the
requirement of making a security deposit of
Rs.2,000/- is mandatory and the same has to be
made while presenting an election petition, but
the mode of deposit as well as the person who
could make a deposit has to be complied with in
accordance with the rules of the High Court in
question and, as such has been held to be
directory in several decisions of this Court.
9. In M. Karunanidhi -Vrs.- H.V. Hande
provisions of Section 117(1) of the
Representation of the People Act directly came
up for consideration. In this case the Assistant
Registrar of the High Court directed that the
amount of security be deposited to the credit of
the Registrar of the High Court in Reserve Bank
of India and in pursuance of the direction, the
120
election petitioner deposited the sum of
Rs.2,000/- with a pre-receipted challan issued
by the Accounts Department to the credit of the
Registrar of the High Court and Reserve Bank of
India had made the endorsement that it had
received in cash. The contention of the applicant
assailing the maintainability of the election
petition was that there has been non-compliance
with Section 117(1) of the Act inasmuch as Rule
8 of the Election Petitions Rules provides that
money should be deposited in the High Court in
cash and that Rule must be held to be forming a
part of sub-section (1) of Section 117. It was
thus contended that the deposit of money in
Reserve Bank of India to the credit of the
Registrar, High Court cannot be construed to be
a compliance with the mandatory requirements
of Section 117(1) of the Act. This contention was
repelled by this Court and it was held that there
was nothing wrong in the procedure adopted in
making the deposit and when the amount so
deposited with a pre-receipted challan issued by
the Accounts Department to the credit of the
Registrar, High Court and Reserve Bank of India
made the endorsement (received in cash), it
must be regarded that the payment was made in
the High Court and the pre-receipted challan
bearing the endorsement must be treated as the
receipt of the Registrar. This Court relied upon
the earlier decision of this Court in the case of K.
121
Kamaraja Nadar -Vrs.- Kunju Thevar which
was a case under the provisions of Section 117
of the Act, as it stood prior to its amendment,
wherein also the receipt showed that the deposit
had been made but did not show that the
deposit had been made in favour of the
Secretary to the Election Commission. One of
the questions that arose was whether the
expression "in favour of the Election
Commission", contained in Section 117, as it
stood then, was mandatory in character or not,
and this Court held that the first part of Section
117 though was mandatory, but not the later
part. It is not necessary to multiply authorities
on the point, but suffice it to say, that the sum
of Rs.2,000/- must be deposited while filing an
election petition and that is undoubtedly
mandatory, but through whom the amount will
be deposited etc. cannot be held to be
mandatory. That being the position, and in the
case in hand the evidence of the election
petitioner as well as the evidence of Respondent
5 unequivocally pointing out that it is the
election petitioner who deposited the amount of
Rs.2,000/-, we see no infirmity with the
conclusion of the High Court that there has been
compliance with Section 117 of the Act and
consequently the election petition has been
rightly held to be maintainable and could not
have been dismissed under Section 86 on the
122
ground of non-compliance with Section 117 of
the Act."
Reliance is further placed in the cases of A. Madan
Mohan (supra), wherein the Hon'ble Supreme Court considered
as to whether or not the election petition was liable to be
dismissed in limine u/s 86 of the R.P. Act, 1951 as the copies of
the documents and schedules, though filed in Court along with
the election petition, were not supplied to the returned candidate
which amounts to a clear breach of mandatory provisions
contained in section 81(3) of the Act. Answering the aforesaid
question, the Hon'ble Supreme Court held as follows:-
"11. The counsel for the petitioner vehemently
contended that as the schedules and other
documents formed an integral part of the
petition, the same should have been served on
the petitioner (respondent in the High Court)
before it could be said that the provisions of
Sections 81 and 82 of the Act had been complied
with. It was further argued that in the absence
of such a compliance, the petition was liable to
be rejected in limine under Section 86 of the
Act. We are, however, unable to agree with this
contention which does not at all flow from the
plain and simple requirements of Sections 81
and 82. As indicated above, all that was
necessary was done in this case and there was
123
no requirement that the documents or the
schedules should also have been served on the
petitioner because if they were filed in the Court
it was always open to the petitioner to inspect
them and find out the allegations made in the
petition. We are unable to hold that the
documents or the schedules formed an integral
part of the petition."
In view of the foregoing discussions and in the facts
and circumstances, since on the challan served on the
Respondent vide AB/2, AC/2 along with the true copy of election
petition, the amount deposited by the advocate for the Election
Petitioner on 03.07.2019, the signature and date of the cashier,
the challan number and below that the date of deposit are there,
it cannot be said that there is any such material or substantial
variation from the original challan to mislead the Respondent or
there was any possibility on the part of the Respondent to
misunderstand it or that the Respondent had been prejudiced to
formulate his defence by such service of challan and thus, the
contentions raised on behalf of the Respondent that as per
section 81(3) of the R.P. Act r/w Order 7 Rule 14 C.P.C, the
election petition is liable to be dismissed on account of non-
supply of the exact and true copy of the challan appended to the
124
election petition, being devoid of merits, stand rejected and the
said plea is barred by the principles of constructive res judicata.
Thus, the issue nos.(1) to (3) are answered in favour
of the Election Petitioner and against the Respondent.
9. Issue Nos.4 to 14:-
Before going to deal with all these eleven issues, it
would be apt to discuss some of the relevant provisions of the
Constitution of India, R.P. Act, 1951, Conduct of Election Rules,
1961 and Handbook for Returning Officer.
Article 173 of the Constitution of India deals with
qualification for membership of the State Legislature. Article 191
of the Constitution of India deals with disqualifications for
membership.
Section 33 of the R.P. Act, 1951 deals with
presentation of nomination paper and requirements for a valid
nomination. The relevant provision for this case i.e. sub-section
(4) of section 33 reads as follows:-
"33(4). On the presentation of a nomination
paper, the returning officer shall satisfy himself
that the names and electoral roll numbers of the
candidate and his proposer as entered in the
125
nomination paper are the same as those entered
in the electoral rolls:
Provided that no misnomer or inaccurate
description or clerical, technical or printing error
in regard to the name of the candidate or his
proposer or any other person, or in regard to
any place, mentioned in the electoral roll or the
nomination paper and no clerical, technical or
printing error in regard to the electoral roll
numbers of any such person in the electoral roll
or the nomination paper, shall affect the full
operation of the electoral roll or the nomination
paper with respect to such person or place in
any case where the description in regard to the
name of the person or place is such as to be
commonly understood; and the returning officer
shall permit any such misnomer or inaccurate
description or clerical, technical or printing error
to be corrected and where necessary, direct that
any such misnomer, inaccurate description,
clerical, technical or printing error in the
electoral roll or in the nomination paper shall be
overlooked."
Section 36 of the R.P. Act, 1951 which deals with
scrutiny of nomination reads as follows:-
"36. Scrutiny of nomination.--(1) On the date
fixed for the scrutiny of nominations under
126
section 30, the candidates, their election agents,
one proposer of each candidate, and one other
person duly authorized in writing by each
candidate but no other person, may attend at
such time and place as the returning officer may
appoint; and the returning officer shall give
them all reasonable facilities for examining the
nomination papers of all candidates which have
been delivered within the time and in the
manner laid down in section 33.
(2) The returning officer shall then examine the
nomination papers and shall decide all objections
which may be made to any nomination and may,
either on such objection or on his own motion,
after such summary inquiry, if any, as he thinks
necessary, reject any nomination on any of the
following grounds:-
(a) that on the date fixed for the scrutiny of
nominations the candidate either is not qualified
or is disqualified for being chosen to fill the seat
under any of the following provisions that may
be applicable, namely:-
Articles 84, 102, 173 and 191.
Part II of this Act, and sections 4 and 14 of the
Government of Union Territories Act, 1963 (20
of 1963); or
127
(b) that there has been a failure to comply with
any of the provisions of section 33 or section 34;
or
(c) that the signature of the candidate or the
proposer on the nomination paper is not
genuine.
(3) Nothing contained in clause (b) or clause (c)
of sub-section (2) shall be deemed to authorize
the rejection of the nomination of any candidate
on the ground of any irregularity in respect of a
nomination paper, if the candidate has been duly
nominated by means of another nomination
paper in respect of which no irregularity has
been committed.
(4) The returning officer shall not reject any
nomination paper on the ground of any defect
which is not of a substantial character.
(5) The returning officer shall hold the scrutiny
on the date appointed in this behalf under clause
(b) of section 30 and shall not allow any
adjournment of the proceedings except when
such proceedings are interrupted or obstructed
by riot or open violence or by causes beyond his
control:
Provided that in case an objection is
raised by the returning officer or is made by any
other person the candidate concerned may be
128
allowed time to rebut it not later than the next
day but one following the date fixed for scrutiny,
and the returning officer shall record his decision
on the date to which the proceedings have been
adjourned.
(6) The returning officer shall endorse on each
nomination paper his decision accepting or
rejecting the same and, if the nomination paper
is rejected, shall record in writing a brief
statement of his reasons for such rejection.
(7) For the purposes of this section, a certified
copy of an entry in the electoral roll for the time
being in force of a constituency shall be
conclusive evidence of the fact that the person
referred to in that entry is an elector for that
constituency, unless it is proved that he is
subject to a disqualification mentioned in section
16 of the Representation of the People Act, 1950
(43 of 1950).
(8) Immediately after all the nomination papers
have been scrutinized and decisions accepting or
rejecting the same have been recorded, the
returning officer shall prepare a list of validly
nominated candidates, that is to say, candidates
whose nominations have been found valid, and
affix it to his notice board."
129
Section 83 of the R.P. Act, 1951 deals with contents
of election petition which 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
(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."
130
Section 100 of the R.P. Act. 1951 which deals with
the grounds on which the election is to be declared void reads as
follows:-
"100. Grounds for declaring election to be
void.--(1) Subject to the provisions of sub-
section (2) if the High Court is of opinion--
(a) that on the date of his election a returned
candidate was not qualified, or was disqualified,
to be chosen to fill the seat under the
Constitution or this Act or the Government of
Union Territories Act, 1963 (20 of 1963); or
(b) that any corrupt practice has been
committed by a returned candidate or his
election agent or by any other person with the
consent of a returned candidate or his election
agent; or
(c) that any nomination has been improperly
rejected; or
(d) that the result of the election, in so far as it
concerns a returned candidate, has been
materially affected--
(i) by the improper acceptance of any
nomination, or
131
(ii) by any corrupt practice committed in the
interests of the returned candidate by an agent
other than his election agent, or
(iii) by the improper reception, refusal or
rejection of any vote or the reception of any
vote which is void, or
(iv) by any non-compliance with the provisions
of the Constitution or of this Act or of any rules
or orders made under this Act,
the High Court shall declare the election of the
returned candidate to be void.
(2) If in the opinion of the High Court, a
returned candidate has been guilty by an agent
other than his election agent, of any corrupt
practice but the High Court is satisfied--
(a) that no such corrupt practice was committed
at the election by the candidate or his election
agent, and every such corrupt practice was
committed contrary to the orders, and without
the consent, of the candidate or his election
agent;
***
(c) that the candidate and his election agent
took all reasonable means for preventing the
commission of corrupt practices at the election;
and
132
(d) that in all other respects the election was
free from any corrupt practice on the part of the
candidate or any of his agents,
then the High Court may decide that the election
of the returned candidate is not void."
Clause 5.11 of Handbook for Retuning Officer,
February 2019, Document 23, Edition 1 (hereafter 'HBRO') (Ext.
38) at page 75 prescribes as follows:-
Preliminary Examination of Nomination Papers.-
Clause 5.11.1: As each Nomination Paper is
filed, Returning Officer or the Specified Assistant
Returning Officer, as the case may be, is
required by law to examine it then and there
from the technical stand point as required under
section 33(4) of the Act, 1951. But Returning
Officer is not required to hold any formal
scrutiny of any nomination papers at this stage.
This preliminary examination is restricted to
entries relating to the name and electoral roll
details relating to the candidate and the
proposer(s) as given in the nomination paper(s)
and those as entered in the electoral roll. The
following aspects may be examined at this
stage:
(i) if the candidate is an elector in Returning
Officer's constituency, he should compare the
133
entries in the nomination paper with the entries
in the electoral roll relating to the serial number
and name of the candidate and his proposer/s.
xxx xxx xxx
(iv) Check whether the affidavit in revised Form
26 is duly filled up and attached along with the
nomination paper. If not attached, Returning
Officer or the Specified Assistant Returning
Officer should bring it to his notice this
requirement through a notice by way of the
check list.
(v) Check whether all columns of the affidavit
are filled up, as incomplete affidavits are liable
to be rejected leading to rejection of nomination
paper. In case any of the columns are left blank
by the candidate, Returning Officer or the
Specified Assistant Returning Officer will
mention it in the checklist and hand it over to
the candidate against proper receipt. In such
cases the candidate will have opportunity to file
a fresh affidavit complete in all respects by the
time fixed for commencement of scrutiny.
Clause 5.13 of HBRO (Ext.38) at page 81 prescribes
as follows:-
Discrepancies And Errors in Electoral Rolls.-
134
5.13.1 No misnomer or inaccurate description or
clerical, technical or printing error in regard to
the name of the candidate or his proposers or
any other person or in regard to any place
mentioned in the electoral roll or the nomination
paper and no clerical, technical or printing error
in regard to the electoral roll numbers of any
such person in the electoral roll or the
nomination paper shall affect the full operation
of the electoral roll or the nomination paper with
respect to such person or place in any case
where the description in regard to the name of
the person or place is such as is commonly
understood. Returning Officer shall permit any
such misnomer or inaccurate description or
clerical, technical or printing error to be
corrected and where necessary direct that any
such misnomer, inaccurate description, clerical,
technical or printing error in the electoral roll or
in the nomination papers shall be overlooked.
Returning Officer has no power in law to allow
any other error to be corrected (See Section 33
(4) of RP Act, 1951).
5.13.2 Similarly, if there is a complaint
regarding mismatch of photo in the photo
electoral roll, Returning Officer shall overlook the
same after satisfying himself/herself about the
identity of the person through some other
document produced by him.
135
5.13.3 Points, which Returning Officer is thus
required to dispose off under Section 33(4) of
the said Act, should invariably be disposed of at
this stage. It will be undesirable for Returning
Officer at the time of scrutiny to reject a
nomination paper for defects, which could have
been thus cured at the earlier stage of the
presentation of the nomination paper.
Clause 6.6.1 of HBRO (Ext.38) states that even if no
objection has been raised with regard to a nomination paper,
Returning Officer has to satisfy himself/herself that it is valid in
law. If any objection is raised, Returning Officer shall have to
hold a summary inquiry to decide the same and to treat the
nomination paper to be either valid or invalid. Returning Officer
should record his/her decision in each case giving briefly the
reasons where an objection has been raised or why he/she
rejects the nomination paper. Returning Officer's decision could
be challenged later in an election petition and hence the
importance of recording a brief statement of reasons at this
time. If Returning Officer accepts the nomination paper of a
candidate overruling the objections raised by an objector, he
may be supplied with a certified copy of his/her decision upon his
request.
136
Clause 6.7 of HBRO (Ext.38) deals with presumption
of validity and it reads as follows:-
"6.7.1 There is a presumption that every
nomination paper is valid unless the contrary is
prima facie obvious or has been made out. In
case of a doubt as to the validity of a nomination
paper, the benefit of such doubt must go to the
candidate concerned and the nomination paper
should be held to be valid. Remember that
whenever a candidate's nomination paper is
rejected without proper reason that can be a
reason to set aside the election in an election
petition. Returning Officer should adopt a
comparatively liberal approach in dealing with
minor technical or clerical errors. Sub-section
(4) of Section 36 mandates that nomination
paper shall not be rejected on a ground or defect
which is not substantial."
Rule 4 of Conduct of Election Rules, 1961 (hereafter
'1961 Rules') prescribes as follows:-
4. Nomination paper.--Every nomination
paper presented under sub-section (1) of section
33 shall be completed in such one of the Forms
2A to 2E as may be appropriate:
Provided that a failure to complete or defect
in completing, the declaration as to symbols in a
137
nomination paper in Form 2A or Form 2B shall
not be deemed to be a defect of a substantial
character within the meaning of sub-section (4)
of section 36.
Thus, according to Rule 4 of 1961 Rules, failure to
complete or defect in completing the declaration as to symbols in
a nomination paper shall not be deemed to be a defect of
substantial character. It is not that every defect such as deletion
of Part II of nomination paper and not filing the Part III and III-A
of the nomination paper in the prescribed Form 2B is not a defect
of substantial character.
For the sake of convenience, and to avoid prolixity
and unnecessary repetition, issues nos.4 to 14 which are
interlinked with each other are dealt with and answered
together.
Issues nos.4 to 14 are extracted herein below for
ready reference:-
"4. Whether striking/deletion of PART-II of his
nomination in Form-2B by the sole Respondent
in pursuance to the instruction given in the
prescribed nomination Form-2B renders the
nomination of the sole Respondent liable for
rejection of his nomination or not?
138
5. Whether the sole Respondent has furnished
all the required information as required in PART-
III of nomination Form-2B or not?
6. Whether the sole Respondent has furnished
all the required information as required in PART-
IIIA of Nomination Form-2B or not?
7. Whether the alleged defects as pointed out
by the Election Petitioner regarding deletion of
PART-II of nomination Form-2B as well as with
respect to PART-III and PART-IIIA of nomination
Form-2B do not constitute any substantial defect
and as such the nomination filed by the sole
Respondent is rightly accepted by the Returning
Officer as prescribed under section 36(4) of the
R.P. Act, 1951 or not?
8. Whether the Respondent filed his
nomination papers in violation of section 33 of
the R.P. Act, 1951?
9. Whether the Respondent has filed his
nomination papers before the Returning Officer
is in the prescribed Form-2B?
10. Whether PART-III of Form-2B of the
nomination papers filed by the Respondent is in
the prescribed Form?
11. Whether the Respondent has filled up PART-
IIIA of the nomination papers filed by him before
139
the Returning Officer of 90-Barabati Cuttack
Assembly Constituency and as to whether
Column no.3 to 9 of PART-IIIA are in the
prescribed Form-2B?
12. Whether the nomination papers of the
Respondent was liable to be rejected by the
Returning Officer as the same was not in the
prescribed Form-2B and as to whether the
Returning Officer illegally and improperly
accepted the nomination papers filed by the
Respondent in violation of section 33 of the R.P.
Act, 1951 read with Rule 4 of the Conduct of
Election Rules, 1961?
13. Whether the Returning Officer should have
rejected the nomination of Respondent in
exercise of power under section 36 of the R.P.
Act, 1951 at the time of scrutiny of the
nomination papers?
14. Whether on account of the alleged defects
as pointed out by the Election Petitioner under
paragraph 7(A) of the Election Petition, the
result of the election in so far as it concerns the
returned candidate/sole Respondent has been
materially affected or not?"
Learned counsel for the Election Petitioner placed
reliance in the case of Jyoti Basu and others -Vrs.- Devi
Ghosal and Others reported in (1982) 1 Supreme Court
140
Cases 691, wherein the Hon'ble Supreme Court held as
follows:-
"8. A right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a common law right. It is
pure and simple, a statutory right. So is the
right to be elected. So is the right to dispute an
election. Outside of statute, there is no right to
elect, no right to be elected and no right to
dispute an election. Statutory creations they are,
and therefore, subject to statutory limitation. An
election petition is not an action at common law,
nor in equity. It is a statutory proceeding to
which neither the common law nor the principles
of equity apply but only those rules which the
statute makes and applies. It is a special
jurisdiction, and a special jurisdiction has always
to be exercised in accordance with the statute
creating it. Concepts familiar to common law and
equity must remain strangers to election law
unless statutorily embodied. A Court has no
right to resort to them on considerations of
alleged policy because policy in such matters as
those, relating to the trial of election disputes, is
what the statute lays down. In the trial of
election disputes, Court is put in a strait-jacket.
Thus the entire election process commencing
from the issuance of the notification calling upon
141
a constituency to elect a member or members
right up to the final resolution of the dispute, if
any, concerning the election is regulated by the
Representation of the People Act, 1951, different
stages of the process being dealt with by
different provisions of the Act. There can be no
election to Parliament or the State legislature
except as provided by the Representation of the
People Act, 1951 and again, no such election
may be questioned except in the manner
provided by the Representation of the People
Act. So the Representation of the People Act has
been held to be a complete and self-contained
code within which must be found any rights
claimed in relation to an election or an election
dispute..."
In the case of Arikala Narasa Reddy -Vrs.-
Venkata Ram Reddy Reddygari and Another reported in
(2014) 5 Supreme Court Cases 312, the Hon'ble Supreme
Court held as follows:-
"13. It is a settled legal proposition that the
statutory requirements relating to election law
have to be strictly adhered to for the reason that
an election dispute is a statutory proceeding
unknown to the common law and thus, the
doctrine of equity, etc. does not apply in such
dispute. All the technicalities
142
prescribed/mandated in election law have been
provided to safeguard the purity of the election
process and the Courts have a duty to enforce
the same with all rigours and not to minimise
their operation. A right to be elected is neither a
fundamental right nor a common law right,
though it may be very fundamental to a
democratic set-up of governance. Therefore,
answer to every question raised in election
dispute is to be solved within the four corners of
the statute.
xxx xxx xxx
32. It is a settled legal proposition that the
instructions contained in the Handbook for
Returning Officer are issued by the Election
Commission in exercise of its statutory functions
and are therefore, binding on the Returning
Officers. Such a view stands fortified by various
judgments of this Court in Ram Sukh -Vrs.-
Dinesh Aggarwal : (2009) 10 SCC 541 and
Uttamrao Shivdas Jankar -Vrs.- Ranjitsinh
Vijaysinh Mohite Patil : (2009) 13 SCC 131."
In case of Jaspal Singh -Vrs.- O.P. Babbar
reported in 2008 (101) Delhi Reported Journal 283, the
Hon'ble High Court of Delhi held that:
143
"32. A Statute is an edict of the Legislature and
the conventional way of interpreting or
construing a statute is to seek the 'intention' of
its maker. A statute is to be construed according
"to the intent of those who make it" and "the
duty of the judicature is to act upon the true
intention of the Legislature -- the mens or
sententia legis.
33. The intention of the Legislature assimilates
two aspects; in one aspect it carries the concept
of 'meaning' i.e. what the words mean and in
another aspect, it conveys the concept of
'purpose and object' or the reason and spirit'
pervading through the Statute. The process of
construing intention of the Legislature therefore
combines both literal and purposive approaches.
xxx xxx xxx
44. The use of the word "shall" in Section 33A of
the R.P. Act, 1951 also guides to the mandatory
character of the legislative provision.
45. To construe Section 33A of the R.P. Act,
1951 in any other manner would run contrary to
the ratio of the decision of the Hon'ble Supreme
Court in decision reported as UOI -Vrs.-
Association Democratic Reforms & Anr. :
(2002) 5 SCC 294.
xxx xxx xxx
144
47. A nomination paper is a nomination paper
properly so called when it complies with the
requirements of Sections 33 and 33A of the R.P.
Act, 1951. A nomination paper not in compliance
thereof is a nomination paper improperly so
called. It is no nomination paper in the eyes of
law. Right to be a candidate at an election
commences by filing a nomination paper, which
has to be as per law.
48. Where a statute prescribes the manner in
which an act can be performed, the act can be
performed in the manner prescribed and in no
other way."
Mr. Kanungo, learned Senior Advocate appearing for
the Election Petitioner argued that the Election Petitioner being
examined as P.W.1 has stated in his evidence affidavit (Ext.36)
that the result of election so far as it relates to the Constituency
in declaring the Respondent to have been elected as M.L.A. to
the Odisha State Legislative Assembly has been materially
affected on account of illegal and improper acceptance of
nomination papers by the Returning Officer of the Constituency
as the Respondent had not filed his nomination papers in the
prescribed Form 2B and had filed false affidavit in Form 26 and
as such the declaration by the Returning Officer that the
respondent had been duly elected from the Constituency is void,
145
illegal, not legally sustainable and the same is liable to be set
aside. He has further stated that the Respondent filed his
nomination as Indian National Congress (I.N.C) candidate for the
Constituency before the Returning Officer on 02.04.2019 but the
same was not in the prescribed Form 2B. The Respondent suo
moto deleted part II of the Form 2B in the nomination papers
filed by him before the Returning Officer on 02.04.2019. The part
III of Form 2B of the nomination paper filed by the Respondent
is also not in the prescribed Form 2B. Part IIIA of the nomination
paper filed by the Respondent has not been filled up by the
Respondent. The columns of the part IIIA of the nomination
paper has been left blank and columns from (3) to (9) are also
not in the prescribed Form 2B. Thus, it was necessary for the
Returning Officer to reject the nomination papers of the
Respondent but the Returning Officer illegally and improperly
accepted the nomination papers of the Respondent. The
Returning Officer should have rejected the nomination of the
Respondent at the time of scrutiny as the nomination papers
filed by the Respondent were not in prescribed Form 2B. The
illegal and improper acceptance of nomination papers of the
Respondent has materially affected the result of the election so
far as it concerns the returned candidate and as such the same is
146
liable to be set aside. In his evidence, the Election Petitioner has
further stated that the non-filing of nomination papers in the
prescribed statutory Form 2B and whatever has been filed with
blank particulars materially affected the result of the election and
as such the election of the Respondent declaring him as M.L.A. of
the Constituency is to be declared void and is to be set aside. In
the cross-examination, the Election Petitioner has stated that he
has mentioned in his election petition that the Respondent suo
moto deleted Part II of the Form 2B in the nomination paper filed
by him before the Returning Officer on 02.04.2019. Instruction is
available in the nomination paper in Form 2B to 'strike off Part-I
or Part-II below whichever is not applicable'. Part-I is to be used
by the candidate set up by recognized political party. He has
further stated in the cross-examination that he had struck off
Part-II in his nomination paper in Form 2B as Part-II of the
nomination paper in Form 2B was not relevant for a candidate
set up by recognized political party and since he had been set up
by a recognized political party, he had struck off Part-II. He has
further stated in the cross-examination that the Respondent was
a candidate set up by recognized political party i.e. Indian
National Congress and that the Respondent was required to fill
up Part-I of his nomination paper in Form 2B. He has further
147
stated that after the result of the election was declared, it came
to his knowledge that the nomination paper filed by the
Respondent was not in the prescribed Form 2B and that the
latter suo motu deleted Part-II of the Form 2B. He has further
stated that a candidate could not delete Part-II of Form 2B in the
nomination paper filed by him if he was set up by a recognized
political party, only he has to strike off Part-II even if it was not
relevant for him. He has further stated that in his nomination
paper, he had struck off Part-II of Form 2B whereas the
Respondent had deleted Part-II in his nomination paper in Form
2B. He has further stated that though in Part-III of Form 2B, the
Respondent had given his assent to the nomination, but that was
not in the prescribed format. He has further stated that there is
no such item as c(ii) in Part-III in the nomination paper of the
Respondent and he had totally deleted the same and changed
the format of the prescribed nomination paper. He has further
stated that in Part-III, at the end, instruction has been given by
putting * to score out this paragraph, if not applicable and **
score out the words not applicable, however, in the nomination
paper filed by the Respondent in Form 2B, this paragraph has
been totally deleted which should not have been done and by
doing so, the Respondent had changed the format. He has
148
further stated that the Respondent had not filled up Part IIIA at
all in his nomination paper in Form 2B. Part IIIA of the
nomination paper filed by the Respondent was not in proper
format as prescribed by the Election Commission of India. He has
further stated that in Ext.35 and Ext.1, the Respondent has
mentioned as 'NA' while filling up Clauses (i) to (xii). While filling
up item (2) of Part IIIA of Form 2B which requires a candidate to
disclose as to whether he is holding any office of profit under the
Government of India or State Government or not and if yes, the
details of office held, the Respondent has simply mentioned 'No'
against item (2) of Part IIIA and further mentioned 'N.A.' against
the second line. He has further stated that against item (3) of
Part-IIIA of Form 2B where the candidate is required to furnish
information as to whether he has been declared insolvent by any
Court or not, the Respondent has simply mentioned 'No' against
item (3) of Part-IIIA of Form 2B in the first line and the second
line of item (3) is totally missing in his nomination paper, which
indicates that it is not as per the format prescribed in Form 2B
by the Election Commission of India and the Respondent had
created a nomination paper of his own. Against item (4) of Part-
IIIA of Form 2B where the candidate is required to furnish
information as to whether the candidate is under allegiance or
149
adherence to any foreign country or not, the Respondent in his
nomination paper against item (4) of Part IIIA of Form 2B has
mentioned 'No' and the second line of item (4) has been totally
deleted. Against item (5) of Part-IIIA of Form 2B where the
candidate is required to furnish information as to whether the
candidate has been disqualified under section 8A of the R.P. Act,
1951 by an order of the President or not, the Respondent in his
nomination paper against item (5) of Part IIIA of Form 2B has
mentioned 'No' and the second line of item (5) has been totally
deleted. Against item (6) of Part-IIIA of Form 2B where the
candidate is required to furnish information as to whether the
candidate was dismissed for corruption or for disloyalty while
holding office under the Government of India or the Government
of any State or not, the Respondent in his nomination paper
against item (6) of Part IIIA of Form 2B has mentioned 'No' and
the second line of item (6) has been totally deleted. Against item
(7) of Part-IIIA of Form 2B where the candidate is required to
furnish information as to whether he has any subsisting
contract(s) with the Government either in individual capacity or
by trust or partnership in which he has a share for supply of any
goods to that Government or for execution of works undertaken
by that Government or not, the Respondent in his nomination
150
paper against item (7) of Part IIIA of Form 2B has mentioned
'No' whereas the second line of item (7) has been totally deleted.
Against item (8) of Part-IIIA of Form 2B where the candidate is
required to furnish information as to whether he is a managing
agent or Manager or Secretary of any company or Corporation
(other than a co-operative Society) in the capital of which
Central Government or State Government has not less than
twenty-five percent share or not, the Respondent in his
nomination paper against item (8) of Part IIIA of Form 2B has
mentioned 'No' and the second line of item (8) has been totally
deleted. Against item (9) of Part-IIIA of Form 2B where the
candidate is required to furnish information as to whether the
candidate has been disqualified by the Commission under section
10A of R.P. Act, 1951 or not, the Respondent in his nomination
paper against item (9) of Part IIIA of Form 2B has mentioned
'No' and against the second line of item (9), he has mentioned
'N.A.'.
Mr. Kanungo, learned Senior Advocate drew the
attention of this Court to the evidence of the Election Petitioner
(P.W.1) wherein he has stated to a question put by the Court
that if a candidate deleted some parts of the nomination paper
and filed it only filling the necessary columns and giving
151
necessary information which was applicable to him and
presented it before the Returning Officer, the latter has got no
power under law to overlook the same and accept it even though
the candidate had given all the required information which was
applicable to him. The nomination papers filed by the
Respondent, according to the Election Petitioner, were not
received from the Returning Officer but the same had been
created after downloading the same from the website of the
Election Commission of India. According to him, if after
downloading the same from the website, the Respondent would
have filled up it accurately without deleting any of the
columns/information then it would have matched like his
(Election Petitioner) nomination paper but since the Respondent
had created the nomination paper on his own, it was not legally
acceptable. The Returning Officer, according to him, should not
have accepted the nomination papers of the Respondent in the
Form in which it were filed and the Returning Officer had failed in
his duty in accepting such nomination papers of the Respondent.
Mr. Kanungo, learned Senior Advocate drew the
attention of this Court to the evidence of the Returning Officer
(P.W.3) who has stated in his evidence that there is a Part II in
Annexure-11 marked as Ext.38/3 and Part II of Annexure-11 is
152
not there in Exts.39, 40, 41 and 42. In the nomination paper
filed by the Respondent before him marked as Ext.39, clause
(c)(ii) of Part III is not there even though the same is there in
Annexure-11. He admits that the Respondent had not filed up
columns under (i) to (xii) at page 3 of his nomination paper
(Ext.39) and that he had accepted the nomination paper (Ext.39)
wherein the columns under (i) to (xii) at page 3 were left blank.
P.W.3 has further stated that the nomination papers filed by the
Respondent in Ext.39, Ext.40, Ext.41 and Ext.42 were not
exactly in the prescribed Form 2B as appended to the 1961 Rules
in all respect. In the nomination papers in Ext.39, Ext.40, Ext.41
and Ext.42 filed by the Respondent, Part-II of Form 2B as
appended to the 1961 Rules is not available, clause (c)(ii) of
Part-III of Form 2B as appended to the 1961 Rules is not
available. He has admitted that he had accepted the nomination
papers in Ext.39, Ext.40, Ext.41 and Ext.42 filed by the
Respondent even though it is not exactly the same as per the
prescribed Form 2B as appended to the 1961 Rules. He has
stated that as per the provision under sub-section (4) of Section
33 of the R.P. Act, 1951 including the proviso to such sub-
section, as a Returning Officer, he had got discretion to accept
the nomination papers of the Respondent in Ext.39, Ext.40,
153
Ext.41 and Ext.42 even though those were not exactly the same
as Form 2B as appended to 1961 Rules. He admits that in view
of the proviso to sub-section (4) of section 33 of the R.P. Act,
1951, the Returning Officer has only been given a discretion to
overlook any misnomer, inaccurate description, clerical, technical
or printing error in the electoral roll or in the nomination paper
and no other things and except that provision, there is no other
provision anywhere prescribed giving discretion to the Returning
Officer for accepting a nomination paper which was not exactly
the same as per Form 2B as appended to the 1961 Rules.
Attention has been further drawn to the cross-examination of
P.W.3 wherein he has stated that while downloading a
nomination paper from the official website, it is legally not
permissible for the candidate to make any alteration, deletion,
modification, tampering of the same and file it after filling the
same. He has further stated that in the official website of the
Election Commission, the Form 2B in which the Respondent has
filed his four sets of nomination papers bearing nos. 02/LA/2019
(Ext.39), 03/LA/2019 (Ext.40), 04/LA/2019 (Ext.41) and
05/LA/2019 (Ext.42) were not available in the manner those
were filed. He further stated that in all the nomination papers,
i.e. Ext.39, Ext.40, Ext.41 and Ext.42, Part II, Part-III-(c)(ii) and
154
in Part-III after its clause (e), the sub-para "*I further declare
that I am a member of the ......**caste/tribe which is a
scheduled** caste/tribe of the State of ......in relation to
........(area) in that State" were found missing.
Mr. Mishra, learned Senior Advocate appearing for
the Respondent on the other hand argued that the Returning
Officer (P.W.3) has stated that in case it is found that the defect,
if any, is not of a 'substantial character', the nomination papers
of the candidate are to be accepted as valid and that he did not
find any such defects of 'substantial character' in the nomination
papers of the Respondent. It is argued that P.W.3 is the best
person to judge the same after scrutiny who has stated to have
meticulously followed the provisions laid down in the HBRO
(Ext.38) and therefore, it cannot be accepted that there was any
defect in it. In my humble view, in spite of such evidence
adduced by P.W.3, this Court has got power to examine the
nomination papers of the Respondent with reference to the
evidence adduced by both the sides to see whether there is any
defect of substantial character in it or not and whether those
were rightly accepted by P.W.3 to be valid.
Learned counsel for the Respondent has tried to
bring on record that whatever the Respondent has mentioned in
155
his nomination papers in Form 2B filed by him on 02.04.2019
vide Ext.39, Ext.40, Ext.41 and Ext.42 were required to be
mentioned in it and accordingly, the Respondent had correctly
mentioned the same. The issues in this case are whether the
Respondent filed his nomination papers in the prescribed Form
2B; whether he could have deleted some parts, left some parts
blank in his nomination papers and whether the Returning Officer
was justified in accepting the nomination papers of the
Respondent in the form it were filed and it is not the issue that
whatever was mentioned by the Respondent in those four
nomination papers stated to be in Form 2B were factually
incorrect.
Learned counsel for the Respondent argued that the
Returning Officer (P.W.3) has stated that before the
commencement of scrutiny of nominations, the nomination
papers and the affidavits filed by the Respondent were very
much available in his office notice board, with the media
persons, in the office of the District Election Officer, Cuttack and
in the official website of the Election Commission of India for
view of the general public and in spite of such availability,
nobody including the Election Petitioner or his agents or any of
his supporters raised any objection before him to the nomination
156
papers and affidavits filed by the Respondent before or during
scrutiny of nominations. P.W.3 has further stated that he duly
verified all the nomination papers filed by the respective
candidates at the time of scrutiny and gave opportunity to all the
persons present at the time of scrutiny to examine the
nomination papers of any candidate they like and raise objection,
if any and in spite of giving such opportunity, no one raised any
objection to the nomination papers filed by the Respondent in
any manner before him. In my humble view, non-raising of
objection at that stage by the Election Petitioner does not debar
him from raising the election dispute and to prove by adducing
oral as well as documentary evidence as to what were the
defects in the nomination papers filed by the Respondent. In
other words, in absence of any objection at that stage by
anybody cannot be ground to presume that the nomination
papers of the Respondent were defect free. In the case of Kisan
Shankar Kathore -Vrs.- Arun Dattatray Sawant reported in
(2014) 14 Supreme Court Cases 162, the Hon'ble Supreme
Court has held that it may not be possible, in all times, on the
part of the Returning Officer for verifying veracity of the details
submitted by a candidate and merely because the Returning
Officer accepted the nomination, the High Court cannot be
157
stripped of its power of judicial review to ascertain the
genuineness of the information provided in the nomination
papers, if doubted later on. The Hon'ble Apex Court further
observed as follows:-
"43. When the information is given by a
candidate in the affidavit filed along with the
nomination paper and objections are raised
thereto questioning the correctness of the
information or alleging that there is non-
disclosure of certain important information, it
may not be possible for the Returning Officer at
that time to conduct a detailed examination.
Summary enquiry may not suffice. The present
case is itself an example which loudly
demonstrates this. At the same time, it would
not be possible for the Returning Officer to
reject the nomination for want of verification
about the allegations made by the objector. In
such a case, when ultimately it is proved that it
was a case of non-disclosure and either the
affidavit was false or it did not contain complete
information leading to suppression, it can be
held at that stage that the nomination was
improperly accepted. Ms Meenakshi Arora,
learned Senior Counsel appearing for the
Election Commission, rightly argued that such an
enquiry can be only at a later stage and the
appropriate stage would be in an election
158
petition as in the instant case, when the election
is challenged. The grounds stated in Section
36(2) are those which can be examined there
and then and on that basis the Returning Officer
would be in a position to reject the nomination.
Likewise, where the blanks are left in an
affidavit, nomination can be rejected there and
then. In other cases where detailed enquiry is
needed, it would depend upon the outcome
thereof, in an election petition, as to whether
the nomination was properly accepted or it was
a case of improper acceptance. Once it is found
that it was a case of improper acceptance, as
there was misinformation or suppression of
material information, one can state that question
of rejection in such a case was only deferred to
a later date. When the Court gives such a
finding, which would have resulted in rejection,
the effect would be same, namely, such a
candidate was not entitled to contest and the
election is void."
Learned counsel for the Respondent further argued
that in view of the pleadings in the written statement, both
documentary as well as oral evidences adduced in course of the
trial, coupled together with provisions of law prescribed under
the Constitution of India, R.P. Act, 1951, Indian Evidence Act,
1872 and relevant paragraphs in the Handbook for Returning
159
Officer as well as case laws referred to above, the allegations of
the Election Petitioner under Paragraph 7(A) of the election
petition stand belied and the Election Petitioner has miserably
failed to prove and establish his allegations as made in
Paragraph 7(A) of his election petition to the effect that the
nomination papers filed by the Respondent in Form 2B are not in
prescribed Form 2B and the defects appearing in the nomination
papers of the Respondent are defects of 'substantial character'
for which acceptance of his nomination papers by the Returning
Officer (P.W.3) is illegal and improper.
Mr. Mishra, learned Senior Advocate placed reliance
in the case of Ramesh Rout -Vrs.- Rabindra Nath Rout
reported in (2012) 1 Supreme Court Cases 762, wherein the
Hon'ble Supreme Court held as follows:-
"20. Form 2-B under Rule 4 is in three parts.
Part I is to be used by a candidate set up by a
recognised political party. Part II is required to
be filled by a candidate for election to the
Legislative Assembly not set up by a recognised
political party and it provides that there should
be ten electors of the constituency as proposers.
Part III of Form 2-B is a declaration to be made
by the candidate giving assent to his
nomination. Clause (b)(i) is applicable to a
160
candidate who has been set up by a recognised
political party with a request that symbol
reserved for such party be allotted to him.
Clause (b)(ii), on the other hand is applicable to
a candidate not set up by any registered
recognised political party or a candidate who is
contesting the election as an independent
candidate. A recognised political party means a
political party recognised by the Commission
under the 1968 Order.
xxx xxx xxx
35. The controversy in the present case relates
to a candidate set up by a recognised political
party of the State and, therefore, the relevant
form in this regard is Form 2-B. Form 2-B is in
three parts. Part II is not relevant and,
therefore, it is not necessary to refer to that.
Part I and Part III of Form 2-B are relevant. Part
I of Form 2-B is required to be completed by a
candidate set up by a recognised political party.
Part III of Form 2-B is a declaration to be made
by the candidate giving assent to his
nomination. The candidate is required to
declare, in case of a candidate set up by a
recognised State party in terms of Para b(i),
"that I am set up at this election by the ... party,
which is a recognised national party/State party
in this State and that the symbol reserved for
the above party be allotted to me". Para b(ii) of
161
Part III is applicable to a candidate set up by
any registered unrecognised political party or a
candidate who is contesting the election as an
independent candidate.
36. A plain reading of the proviso that follows
Rule 4 leaves no manner of doubt that a failure
to complete or defect in completing, the
declaration as to symbols in a nomination paper
in Form 2-A or Form 2-B by a candidate set up
by a recognised political party or a candidate set
up by a registered unrecognised political party
or a candidate who seeks to contest the election
as an independent candidate is not a defect of
substantial nature. It is not possible to catalogue
defects contemplated by the proviso. However,
to illustrate a few: wrong description of symbol,
omission to fill blank space given in pro forma in
respect of choice of symbols, selecting a symbol
which is reserved, etc. fall in the category of
defects not of a substantial character."
Mr. Mishra, learned Senior Advocate placed further
reliance in the case of Shambhu Prasad Sharma -Vrs.-
Charandas Mahant and others reported in (2012) 11
Supreme Court Cases 390, the Hon'ble Supreme Court held as
follows:-
162
"18. From the above it is evident that the form
of the nomination papers is not considered
sacrosanct. What is to be seen is whether there
is a substantial compliance with the requirement
as to form. Every departure from the prescribed
format cannot, therefore, be made a ground for
rejection of the nomination paper.
19. In the case at hand, the appellant alleges
that the affidavit did not in the prescribed format
state whether the candidates had any
outstanding liabilities qua financial institutions or
the Government. Now a departure from the
format may assume some importance if the
appellant alleged that there were such
outstanding liabilities which were concealed by
the candidates. That, however, is not the case of
the appellant. Any departure from the prescribed
format for disclosure of information about the
dues, if any, payable to the financial institutions
or the Government will not be of much
significance, especially when the declaration
made by the returned candidate in his affidavit
clearly stated that no such dues were
recoverable from the deponent. The departure
from the format was not, in the circumstances,
of a substantial character on which the
nomination papers of the returned candidate
could be lawfully rejected by the Returning
Officer."
163
Adverting to the contentions raised by the learned
counsel for the respective parties, let me discuss some relevant
evidence on record, provisions of law and legal dictum to answer
the issues.
P.W.3 has stated that after verifying the four sets of
nomination papers filed by the Respondent in Form 2B, he found
that the provisions under R.P. Act, 1951 have been strictly
followed by the Respondent. He has further stated that deletion
of Part II in the nomination paper in Form 2B by the Respondent
is not a defect of 'substantial character'. According to P.W.3, the
deletion of some lines in Part IIIA by the Respondent was not a
defect of a 'substantial character'. He stated that during scrutiny
of nominations, after due verification and scrutiny of all the four
sets of nomination papers and the accompanying documents
filed by the Respondent on 02.04.2019 and 04.04.2019, he
found that there was no defect of a 'substantial character' in the
same for which he accepted all the four sets of nomination
papers of the Respondent as valid. He has further stated that in
view of the proviso to sub-section (4) of Section 33 of the R.P.
Act, 1951, he has been given discretion to overlook any
misnomer, inaccurate description, clerical, technical or printing
error in the electoral roll or in the nomination paper and no other
164
things. He has further stated that by exercising his power
conferred under the proviso to sub-section (4) of section 33 of
the R.P. Act, 1951, he had overlooked the alleged
defects/deletion/omission in the nomination papers in Form 2B of
the Respondent as the same were not defects of 'substantial
character' and such alleged defects, deletion, omissions being
coming under the category of 'misnomer, inaccurate description,
clerical, technical or printing error'; as a Returning Officer, he
had overlooked the same. He, however, admits that there is no
other provision except proviso to sub-section (4) of Section 33 of
the R.P. Act, 1951 for accepting a nomination paper which is not
exactly the same as per Form 2B as appended to the 1961 Rules.
Attention has been drawn to the meaning of the word
'misnomer' as given in different dictionaries and Law Lexicon:
(a) Law Lexicon:
Misnomer - A wrong name
(b) Cambridge Dictionary:
Misnomer - a name that does not suit what it
refers to
(c) Merriam Webster Dictionary:
165
Misnomer - the misnaming of a person in a legal
instrument, a use of a wrong or inappropriate
name, a wrong name or inappropriate
designation.
(d) Collins Dictionary:
Misnomer - an incorrect or unsuitable name or
term for a person or thing
(e) Oxford English-English-Oriya Dictionary:
Misnomer - name or description that is wrongly
applied to something.
Attention has been drawn to the meaning of the
phrase 'inaccurate description' as given in Law Lexicon and in
different dictionaries:
(a) Law Lexicon:
Description- Description of a person is that
which tells what he is, and where statute
requires that the name, place of abode, and
description of a person be given, and only the
name and place of abode are given, there is a
total commission of the description. It is not a
mere case of inaccurate description.- R. V.
Tungwell, L.R. 3 Q.B. 704.
(b) Collins Dictionary:
166
Inaccurate- not accurate; imprecise, inexact, or
erroneous.
Inaccurate- If a statement or measurement is
inaccurate.
Description- A description of someone or
something is an account which explains what
they are or what they look like.
Description- a statement or account that
describes; representation in words, the act,
process, or technique of describing
(c) Cambridge Dictionary:
Inaccurate- not completely correct or exact, or
not able to do something correctly or exactly
Description- something that tells you what
something or someone is like
(d) Merriam Webster Dictionary:
Inaccurate- not accurate, faulty
Description- an act of describing
(e) Longman Dictionary:
Inaccurate- not completely correct
Description- a piece of writing or speech that
gives details about what someone or something
is like
167
(f) Oxford English- English-Oriya Dictionary:
Inaccurate- not accurate (bhul, athik,
trutipurna)
Description- describing (barnana, byakhyana)
Attention has been drawn to meaning of the phrase
'clerical error' as given in Law Lexicon:
Clerical error - Wharton defines a clerical error
as an error in a document which can only be
explained by considering it to be a slip or
mistake of the party preparing or copying it.
[Rosamma Punnose -Vrs.- Balakrishnan Nair,
A.I.R. 1958 Ker. 154 at p. 157 : 1958 Ker. L.J.
261 : 1958 Ker. L.T. 1960]. Literally an error is
said to be "clerical" where it is made by a clerk
or some sub-ordinate agent, but actually, it
means an error committed in the performance of
clerical work, whether by the Court, the
draftsman of the Act or by the clerk. It is an
error which cannot reasonably be attributed to
the exercise of judicial consideration or
discretion. An ordinary mistake made by a clerk
in copying a legal document. The Court may
itself correct it without the motion by the
parties. See Sec.152 CPC.
A "clerical error" is one made in transcribing or
otherwise, and it must be apparent on the face
168
of the record; and therefore, capable of being
corrected. It is in the nature of an inadvertent
omission or mistake. The term "clerical error"
which is amendable nunc pro tunc is
distinguishable from a "judicial error" which can
be corrected only on review or an appeal (cf.
Court-fees Act, 1870.) - Mansha Ram L. Jagdish
Rai -Vrs.- Tej Bhan L. Guditta Mal Sahney, A.I.R.
1962 Punj. 110 at p. 115 : I.L.R. (1961) 1 Punj.
728.
Attention has been drawn to meaning of the phrase
'technical error' as given in Law Lexicon:
Error- A mistaken judgment or incorrect belief
as to existence or effect of matters of fact, or a
false or mistaken conception or application of
the law.
Such a mistaken or false conception or
application of the law to the facts of a cause as
will furnish ground for a review of the
proceedings upon a writ of error; a mistake of
law, or false or irregular application of it, such as
vitiates the proceedings, and warrants the
reversal of the judgment.
Error is also used as an elliptical expression for
"writ of error"; as in saying that error lies; that a
judgment may be reversed on error. - Black's
Law Dictionary, p.637.
169
Error, defect or irregularity- Error, defect or
irregularity in procedure or in law, not in matters
of fact.- Sankali -Vrs.- Muralidhar, I.L.R. 12 All.
200 at p. 202.
Technical defect- It is not always easy to define
what the expression "technical defect" means. A
technical defect in law is one which may come
within the four corners of it, but in fact it does
not affect the merits of the case. It is a mistake
which does not go to the core of the matter.
Some rules are vital and go to the root of the
matter; they cannot be broken; others are only
directory and a breach of them can be
overlooked provided there is substantial
compliance with the rules read as a whole and
provided no prejudice ensues - Gangadhar
Dandwate -Vrs.- Premchand Kashyap, 1958
M.P.C. 334 at p. 336 : A.I.R. 1958 M.P. 182.
Attention has been drawn to meaning of the phrase
'Printing error' as given in different dictionaries:
(a) Collins Dictionary:
Printing error - a misprint or misspelling in a text
(b) Vocabulary.com:
Printing error - misprint - A mistake in anything
that's printed is a misprint. You might also call it
a typographical error.
170
After carefully going through the provision under
sub-section (4) of section 33 of the R.P. Act, 1951, I find that it
has no application to any omissions other than name of the
candidate or his proposer or any other person or in regard to any
place mentioned in the electoral roll or in the nomination paper.
This provision empowers the returning officer to allow correction
in misnomer or inaccurate description or clerical, technical or
printing error in the aforesaid respect to be corrected and where
necessary, to overlook such aspects. Under the proviso to sub-
section (4) of section 33 of the R.P. Act, 1951, twice the words
"any such" have been used prior to the words "misnomer,
inaccurate description, clerical, technical or printing error" which
relates to the name of the candidate, name of his proposer or
name of any other person or in regard to any place, mentioned
in the electoral roll or the nomination paper. If it does not come
within any of these, neither the Returning Officer has got power
to permit it to be corrected or to overlook the same. The
Returning Officer has also stated that in view of the proviso to
sub-section (4) of Section 33 of the R.P. Act, 1951, he has been
given discretion to overlook any misnomer, inaccurate
description, clerical, technical or printing error in the electoral
roll or in the nomination paper and no other things. In my
171
humble view, the defects/deletion/omissions as appears in the
nomination papers of the Respondent do not come under the
category of "misnomer, inaccurate description, clerical, technical
or printing error" which P.W.3 as Returning Officer could have
overlooked exercising his power under the proviso to sub-section
(4) of section 33 of the R.P. Act, 1951.
It has been suggested to the Respondent by the
learned counsel for the Election Petitioner that 'strike off' and
'delete' are not one and the same thing and that at his whim and
pleasure, the Respondent had created the nomination papers in
Form 2B, which was not in consonance with the Form 2B
prescribed under 1961 Rules or the Handbook for Returning
Officer (Ext.38/3 of Ext.38). The Respondent has denied such
suggestion. The Election Petitioner in his evidence has stated
that a candidate cannot delete Part-II of Form 2B in the
nomination paper filed by him if he is set up by a recognized
political party, rather he is only required to strike off Part-II even
if it is not relevant for him and that in his nomination paper,
which was shown to him, he had struck off Part-II of Form 2B
whereas the Respondent had deleted Part-II in his nomination
paper in Form 2B. He has further stated that if after downloading
from the website, the Respondent would have filled up the
172
nomination form accurately without deleting any of the
column/information, then it would have matched like his
(Election Petitioner) nomination paper but since the Respondent
created the nomination paper on his own, it was not legally
acceptable. He has further stated that if a candidate deletes
some parts of the nomination paper and files it only filling the
necessary columns and giving necessary information which is
applicable to him and presents it before the Returning Officer,
then the Returning Officer has got no power under law to
overlook the same and accept it since the candidate has given all
the required information which is applicable to him.
The meanings of the phrase 'STRIKE OFF' as given in
different dictionaries placed by the learned counsel for the
Respondent are quoted hereunder:-
(a) Collins Dictionary:
Strike off- 1. to separate, or remove, by or as by
a blow or cut. 2. to remove from a record, list,
etc.; erase; expunge.
(b) Oxford English - English - Oriya Dictionary:
Strike off- erase
(c) Oxford Advanced Learners' Dictionary:
173
Strike off- to remove somebody/something's
name from something, such as the list of
members of a professional group
(d) Oxford English Dictionary:
Strike off- To cancel by or as by a stroke of a
pen; to remove from a list or record.
(e) Merrium Webster Dictionary:
Intransitive verb
Strike off- to delete something
Transitive verb
Strike off- Delete, Cancel
(f) Chambers 20th Century Dictionary:
Strike- to delete, cancel
Strike off- to erase from an account, to deduct,
to remove (from a roll, register, etc.)
According to the learned counsel for the Respondent,
in view of the above meanings in different dictionaries, it is
abundantly clear that the meaning of the phrase 'strike off' in
common parlance/common man's language is 'erase', 'delete',
'cancel' or 'remove'. Therefore, the deletion of Part II of Form 2B
as has been done by the Respondent as per the instruction given
in Form 2B itself is absolutely correct and the same is not a
174
defect at all. In other words, it was argued on behalf of the
Respondent that 'strike off' and 'delete' are one and same in
view of the dictionary meanings and as Part II, III & IIIA of Form
2B were not relevant for the Respondent, the same have been
rightly deleted from the nomination Form 2B of the Respondent.
Law is well settled that when a word is not defined in
the Act itself, it is permissible to refer to the dictionaries to find
out the general sense in which that word is understood in
common parlance. However, in selecting one out of the various
meanings of a word, regard must always be had to the context
as it is the fundamental rule that the meaning of words and
expressions used in an Act must take their colour from the
context in which they appear. When the context makes the
meaning of a word clear, it becomes unnecessary to search for
and select a particular meaning out of the diverse meanings a
word is capable of. In the case of State Bank of India -Vrs.- N.
Sundara Money reported in A.I.R. 1976 S.C. 1111, while
speaking for the Bench, Hon'ble Justice V.R. Krishna Aiyar
observed, "Dictionaries are not dictators of statutory construction
where the benignant mood of a law and, more emphatically, the
definition clause furnish a different denotation". In the case of
Commissioner of Income Tax, Orissa & Ors. -Vrs.- N.C.
175
Budharaja and Company & Ors. reported in A.I.R. 1993
S.C. 2529, Hon'ble Justice B.P. Jeevan Reddy observed, "A
statute cannot always be construed with the dictionary in one
hand and the statute in the other. Regard must also be had to
the scheme, context and to the legislative history."
In my considered opinion, the meaning of 'strike off'
is to be given effect as per the intention of the legislature in the
statute which ordinarily means 'cross off'. The R.P. Act, 1951 and
1961 Rules are special statutes and the legislature consciously
has used the word 'strike off' in the prescribed Form 2B and
therefore, no other alternate meaning can be read to the word
'strike off'. The prescribed Form 2B consists of a particular
number of pages. Each line of Form 2B has its importance and
after it is filled up and presented by the candidate, it is not only
to be verified by the Returning Officer minutely but also to be
kept in public domain. If the candidate is given liberty to delete
the columns, lines at his whim and pleasure on the ground that
those were not relevant for him, then the number of pages of
Form 2B is likely to vary from candidate to candidate. On the
other hand, if the Form 2B remains intact as appended to under
1961 Rules or Handbook for Returning Officer and the irrelevant
columns are crossed off by the candidate or 'Yes', 'No' or 'Not
176
Applicable' etc. are mentioned at appropriate places, the
Returning Officer would be in a better position to decide whether
the nomination form has been properly filled up or not, whether
some parts have been rightly left blank or any required
data/information is missing.
Mr. Mishra, learned Senior Advocate for the
Respondent argued that the Returning Officer at the time issuing
checklist has not indicated the defect/deficiency in Form 2B. In
my humble view, not indicating the deficiency in the checklist
that the nomination papers filed by the Respondent is not in the
prescribed Form 2B does not authorize the Respondent to file his
nomination paper according to his own wishes by violating
section 33(1) of R.P. Act, 1951 r/w Rule 4 of the 1961 Rules.
According to Ext.38/2, Clause 5.5.1 of HBRO at page 70, the
Returning Officer must ensure that the nomination papers are
filed in the prescribed Form 2B. Though it is argued on behalf of
the Respondent that it was not brought out from the evidence of
the Returning Officer (P.W.3) that the nomination papers filed by
the Respondent were not in the prescribed Form 2B and
discretion lies on the Returning Officer to accept the nomination
papers which are not in Form 2B, in my humble view, the above
submissions made on behalf of the Respondent are not correct.
177
The Returning Officer has admitted that the nomination papers
filed by the Respondent in Exts.39, 40, 41 and 42 are not exactly
in the prescribed Form 2B as appended to the 1961 Rules and he
has also admitted that he accepted the nomination papers filed
by the Respondent which were not exactly the same as per
prescribed Form 2B.
The learned counsel for the Respondent brought to
the notice of this Court that some pleading on material facts are
missing in Paragraph-7(A) of the election petition, there are
vague and insufficient pleadings and it does not disclose concise
statement of all material facts nor makes out a complete cause
of action. He placed reliance in the cases of Azhar Hussain
-Vrs.- Rajiv Gandhi reported in 1986 (Supp.) Supreme
Court Cases 315, Virender Nath Gautam -Vrs.- Satpal
Singh and others reported in (2007) 3 Supreme Court
Cases 617, Ram Sukh -Vrs.- Dinesh Aggarwal reported in
(2009) 10 Supreme Court Cases 541, Jitu Patnaik -Vrs.-
Sanatan Mohakud and others reported in (2012) 4
Supreme Court Cases 194 and Kanimozhi Karunanidhi
-Vrs.- A. Santhana Kumar & others reported in (2023) SCC
OnLine SC 573 on the issue of absence of specific pleadings in
the election petition.
178
In the case of Azhar Hussain (supra), the Hon'ble
Supreme Court held as follows:-
"11. In view of this pronouncement there is no
escape from the conclusion that an election
petition can be summarily dismissed if it does
not furnish cause of action in exercise of the
powers under the Code of Civil Procedure. So
also it emerges from the aforesaid decision that
appropriate orders in exercise of powers under
the Code of Civil Procedure can be passed if the
mandatory requirements enjoined by Section 83
of the Act to incorporate the material facts in the
election petition are not complied with. This
Court in Samant case has expressed itself in no
unclear terms that the omission of a single
material fact would lead to an incomplete cause
of action and that an election petition without
the material facts relating to a corrupt practice is
not an election petition at all. So also in Udhav
Singh case the law has been enunciated that all
the primary facts which must be proved by a
party to establish a cause of action or his
defence are material facts. In the context of a
charge of corrupt practice it would mean that
the basic facts which constitute the ingredients
of the particular corrupt practice alleged by the
petitioner must be specified in order to succeed
on the charge. Whether in an election petition a
179
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. All the facts which
are essential to clothe the petition with complete
cause of action must be pleaded and failure to
plead even a single material fact would amount
to disobedience of the mandate of Section
83(1)(a). An election petition therefore can be
and must be dismissed if it suffers from any
such vice. The first ground of challenge must
therefore fail."
In the case of Virender Nath Gautam (supra), the
Hon'ble Supreme Court held as follows:-
"1. This appeal is filed by the appellant against
the judgment and order dated 20-12-2004
passed by the High Court of Himachal Pradesh,
Shimla in Election Petition No. 2 of 2003. By the
said order, the High Court upheld the
preliminary objection raised by the first
respondent that the election petition did not
disclose material facts and was liable to be
dismissed.
2. The case of the appellant is that the Election
Commission of India notified the programme for
the elections to the Legislative Assembly in the
State of Himachal Pradesh scheduled to be held
180
in February 2003. As per the said notification,
the last date of filing of nomination papers was
7-2-2003, scrutiny -- 8-2-2003, date of
withdrawal -- 10-2-2003, date of polling -- 26-
2-2003 and of counting of votes -- 1-3-2003.
According to the appellant, he submitted his
nomination paper as a candidate of Indian
National Congress Party on 26-2-2003 from 32,
Una Assembly Constituency. Respondent 1 was
set up by Bhartiya Janata Party and contested
the election from the said constituency. At the
counting, according to the appellant, he secured
27,600 votes while the first respondent got
27,651 votes. Thus, by a small margin of 51
votes, the first respondent was declared
successful candidate.
3. According to the appellant, there were several
irregularities and illegalities as also discrepancies
in the voters' list. Electronic voting machines
which were employed were defective; many void
votes had been polled; there were cases of
double voting and all those illegalities vitiated
the election and materially affected the result
thereof. The appellant, therefore, filed an
election petition on 10-4-2003. In the said
petition, he alleged that one Tek Chand Thakur
was the Returning Officer for the constituency in
question. At the time of counting, the appellant
requested the Returning Officer that he had
181
come to know that many void votes had been
cast and they should be deleted from counting,
but the Returning Officer expressed his inability
and helplessness to do so stating that there was
no such mechanism in the electronic voting
machines.
4. In para 8 of the election petition, the
appellant stated that as many as 188 votes had
been wrongly counted though they were
invalid/void votes. In the election petition itself,
the appellant had given details of all such votes.
He also stated that since the margin of votes
between the defeated candidate and the
returned candidate was only 51 votes and the
wrong counting of votes amounted to 188
invalid/void votes, it had materially affected the
result of the election.
5. In para 8(i), he stated that as many as 37
votes of dead persons have been cast and they
should not have been counted. The appellant
had given names of those dead persons along
with numbers in the voters' list. Death
certificates of 36 persons were filed as
Annexures EP-3 to EP-38. He stated that the
Gram Panchayat concerned had not issued death
certificate in respect of one Mukesh Kumar. He,
therefore, annexed death report along with a
forwarding letter dated 7-4-2003 in respect of
the deceased Mukesh Kumar issued by the
182
Senior Medical Officer, Zonal Hospital, Una
district, Una. The appellant also stated that out
of 37 votes, 30 votes had been polled in Booths
Nos. 48 and 49, in the native village of the first
respondent-returned candidate.
6. In para 8(ii), the appellant alleged that as
many as 60 double votes had been cast which
was in contravention of the provisions of Section
62(4) of the Representation of the People Act,
1951 (hereinafter referred to as "the Act").
Thus, 120 votes had been counted though
voters were only 60. It was in violation of the
statutory provision and those votes were,
therefore, void. The details of those votes had
also been mentioned in the election petition
itself.
7. In para 8(iii), the appellant averred that 19
void votes had been polled. Even though all
those persons cast their votes in Booths Nos. 76
and 63 of Kutlehar 33 Constituency, in Una 32
Constituency, the same voters had again cast
their votes. The appellant has given details of
those voters in the election petition. According
to the appellant, the returned candidate was the
beneficiary of those void votes and since the
margin was small, the result had been materially
affected.
183
8. In para 8(iv), the appellant had alleged that
material irregularities had been committed by
the Returning Officer while counting postal ballot
papers. Six persons named in the petition had
sent double postal ballot papers. So instead of
six votes, twelve votes had been cast.
9. According to the appellant, irregularities and
illegalities mentioned in para 8 had materially
affected the result of the election. Had there
been proper voting and counting, the appellant
would have secured more number of votes than
the first respondent. On the above grounds, a
prayer was made by the appellant to call for the
record of the electronic voting machines, to
inspect all polled votes of 32, Una Assembly
Constituency and of Booths Nos. 76 and 36 of
Kutlehar 33 Assembly Constituency, to order re-
counting, to set aside and declare election of the
first respondent void and to declare the
appellant as duly elected candidate from 32, Una
Constituency. Other reliefs were also prayed for.
xxx xxx xxx
30. All material facts, therefore, in accordance
with the provisions of the Act, have to be set out
in the election petition. If the material facts are
not stated in a petition, it is liable to be
dismissed on that ground as the case would be
covered by clause (a) of sub-section (1) of
184
Section 83 of the Act read with clause (a) of
Rule 11 of Order 7 of the Code.
31. The expression "material facts" has neither
been defined in the Act nor in the Code.
According to the dictionary meaning, "material"
means "fundamental", "vital", "basic", "cardinal",
"central", "crucial", "decisive", "essential",
"pivotal", "indispensable", "elementary" or
"primary". [Burton's Legal Thesaurus (3rd Edn.),
p. 349]. The phrase "material facts", therefore,
may be said to be those facts upon which a
party relies for his claim or defence. In other
words, "material facts" are facts upon which the
plaintiff's cause of action or the defendant's
defence depends. What particulars could be said
to be "material facts" would depend upon the
facts of each case and no rule of universal
application can be laid down. It is, however,
absolutely essential that all basic and primary
facts which must be proved at the trial by the
party to establish the existence of a cause of
action or defence are material facts and must be
stated in the pleading by the party.
xxx xxx xxx
34. A distinction between "material facts" and
"particulars", however, must not be overlooked.
"Material facts" are primary or basic facts which
must be pleaded by the plaintiff or by the
185
defendant in support of the case set up by him
either to prove his cause of action or defence.
"Particulars", on the other hand, are details in
support of material facts pleaded by the party.
They amplify, refine and embellish material facts
by giving distinctive touch to the basic contours
of a picture already drawn so as to make it full,
more clear and more informative. "Particulars"
thus ensure conduct of fair trial and would not
take the opposite party by surprise.
35. All "material facts" must be pleaded by the
party in support of the case set up by him. Since
the object and purpose is to enable the opposite
party to know the case he has to meet with, in
the absence of pleading, a party cannot be
allowed to lead evidence. Failure to state even a
single material fact, hence, will entail dismissal
of the suit or petition. Particulars, on the other
hand, are the details of the case which is in the
nature of evidence a party would be leading at
the time of trial."
In the case of Ram Sukh (supra), the Hon'ble
Supreme Court held as follows:-
"22. As already stated, in the present case, the
allegation of the election petitioner is that the
Returning Officer failed to circulate the attested
signatures of his election agent to various polling
186
stations and, therefore, failed to comply with
Para 12 of Chapter VII of the Handbook for the
Returning Officers. The pleadings in the election
petition, in relation to Grounds (i) and (ii),
extracted in para 3 above, were as under:
"11. That due to the aforesaid inaction
of the Returning Officer the polling
agent of the petitioner was not
permitted to function till 3.00 p.m. by
which time more than 80% polling was
over. This inaction on the part of the
Returning Officer materially affected the
election as almost all other polling
agents of the petitioner working in other
polling stations got confused and
supporters of the petitioner either
returned back or voted for Congress
candidate.
12. That the Returning Officer was duty-
bound to send required Praroop of the
petitioner and his agent's signature one
day before the day of election which he
did not do. Due to this inaction of the
Returning Officer the election of 13
Laxman Chowk Legislative Assembly
Constituency was materially affected."
23. There is no quarrel with the proposition that
the instructions contained in the Handbook for
187
the Returning Officers are issued by the Election
Commission in exercise of its statutory functions
and are, therefore, binding on the Returning
Officers. They are obliged to follow them in letter
and spirit. But the question for consideration is
whether the afore-extracted paragraphs of the
election petition disclose material facts so as to
constitute a complete cause of action. In other
words, the question is whether the alleged
omission on the part of the Returning Officer
ipso facto "materially affected" the election
result. It goes without saying that the averments
in the said two paragraphs are to be read in
conjunction with the preceding paragraphs in the
election petition. What is stated in the preceding
paragraphs, as can be noticed from Grounds (i)
and (ii) reproduced above, is that by the time
specimen signature of the polling agent was
circulated 80% of the polling was over and
because of the absence of the polling agent the
voters got confused and voted in favour of the
first respondent. In our opinion, to say the least,
the pleading is vague and does not spell out as
to how the election results were materially
affected because of these two factors. These
facts fall short of being "material facts" as
contemplated in Section 83(1)(a) of the Act to
constitute a complete cause of action in relation
to the allegation under Section 100(1)(d)(iv) of
the Act. It is not the case of the election
188
petitioner that in the absence of his election
agent there was some malpractice at the polling
stations during the polling.
24. It needs little reiteration that for the purpose
of Section 100(1)(d)(iv), it was necessary for the
election petitioner to aver specifically in what
manner the result of the election insofar as it
concerned the first respondent was materially
affected due to the said omission on the part of the
Returning Officer. Unfortunately, such averment is
missing in the election petition.
25. In our judgment, therefore, the Election
Tribunal/High Court was justified in coming to the
conclusion that statement of material facts in the
election petition was completely lacking and the
petition was liable to be rejected at the threshold
on that ground. We have, therefore, no hesitation
in upholding the view taken by the High Court.
Consequently, this appeal, being devoid of any
merit, fails and is dismissed accordingly. Since the
first respondent remained unrepresented, there
will be no order as to costs."
In the case of Jitu Patnaik (supra), the Hon'ble
Supreme Court held as follows:-
"41. Para 7(D) of the election petition reads as
under:
189
"7. (D) The petitioner further gives a concise
statement of material fact exposing a glaring
instance of illegality deliberately committed by
the counting personnel while recording the
counting figure in Form 20 with respect to Booth
No. 179, Urdu Madrasa Champua Alinagar
Booth. The total number of voters as recorded in
the electoral roll with respect to Booth No. 179
is 1109. Whereas in Form 17-C, certified copy,
deliberately this figure has been shown wrongly
as 1091. On the date of polling on a plain
perusal of the register of voters maintained in
Form 17-A, it will be abundantly clear that the
total number of voters came to vote and signed
17-A Register is 1091 whereas in Form 17-C,
certified copy, it has been deliberately shown as
772 making a deliberate suppression of 319
votes.
According to the information received by
the election petitioner from his counting agents
in Booth No. 179, the election petitioner has
received 462 (four hundred sixty-two) votes.
The said 462 votes are to be added to the total
votes of the petitioner as stated in the preceding
paragraph. Thus, the petitioner has received in
total 27,410 + 73 + 462 + 02 (postal ballots) =
27,947 votes and the first respondent having
received 27,700 votes, the election petitioner
has received 247 (two hundred forty-seven)
190
more votes than the first respondent and is
entitled to be declared elected as MLA from '25-
Champua' Assembly Constituency to Orissa
State Legislative Assembly."
42. Mr. Mukul Rohatgi, learned Senior Counsel
for the election petitioner submitted that the
above pleadings are in two parts. The first part
relates to suppression of 319 votes. This part
begins with the start of Para 7(D) and ends with
"... suppression of 319 votes". The second part
relates to addition of 462 votes which is
remaining part of Para 7(D). He would submit
that all material facts concerning deliberate
suppression of 319 votes have been pleaded in
Para 7(D) and these facts constitute cause of
action for declaring the election of the returned
candidate to be void.
xxx xxx xxx
50. We now revert back to the pleadings set out
in Para 7(D) as analysed above. There is no
averment that the election petitioner or any of
his polling agents had perused the register of
voters maintained in Form 17-A. The basis of the
knowledge that the register of voters maintained
in Form 17-A records that 1091 voters came to
vote is not disclosed at all. Moreover, there is no
pleading that 1091 voters who came to vote at
Booth No. 179 in fact voted. There is no merit in
191
the contention of Mr Mukul Rohatgi that the facts
stated in Para 7(D) with regard to Form 17-A
shall be established at the trial after Form 17-A
is summoned by the Court. We are afraid that
such fanciful imagination of proof at the trial
cannot be a substitute of the pleading of
material facts about the total number of voters
who came to vote and in fact voted at Booth No.
179.
51. The averment that in Form 17-C, certified
copy, it has been deliberately shown as 772
making a deliberate suppression of 319 votes
hardly improves the pleading in the election
petition. There is no averment that the election
petitioner or his agents challenged Part II of
Form 17-C before the authorities. At least, there
are no facts pleaded concerning that.
52. There is no pleading that there was any
challenge by the election petitioner or his agents
in respect of the counting figure in Form 20. The
only pleading is that the illegality has been
deliberately committed by the counting
personnel while recording the counting figure in
Form 20 with respect to Booth No. 179. There is,
thus, no disclosure of material facts in respect of
the challenge to the correctness of Form 20 and
Form 17-C.
192
53. The pleading of material facts with regard to
suppression of 319 votes in Para 7(D) is also
incomplete as it has not been disclosed as to
who suppressed 319 votes; who was the
counting agent present on behalf of the election
petitioner at the time of counting; how 319
votes were suppressed and why re-counting was
not demanded. Moreover, there is no express
pleading as to how the result of the election has
been materially affected by less counting of 319
votes."
In the case of Kanimozhi Karunanidhi (supra), the
Hon'ble Supreme Court held as follows:-
"4. The Election petitioner/respondent no. 1
herein claiming to be a voter, has filed the
Election Petition being no. 3/2019 before the
High Court under Section 80, 80A, 100(1)(d)(iv)
of the Representation of the People's Act, 1951
(hereinafter referred to as the RP Act) seeking
declaration that the election of the returned
candidate, i.e., the appellant herein, from No.
36, Thoothukudy Lok Sabha Constituency, in the
Lok Sabha election conducted pursuant to the
notification of the Chief Election Commissioner
dated 19.03.2019 was void and liable to be set
aside, on the ground that the information sought
by the Election Commission of India in regard to
the payment of income tax of her spouse was
193
not provided by her in the affidavit - Form no.
26 submitted along with the nomination papers,
and thus had intentionally suppressed and not
disclosed the same to the electors.
xxx xxx xxx
23. The law so far developed and settled by this
Court with regard to the non-compliance of the
requirement of Section 83(1)(a) of the RP Act,
namely - "an Election petition must contain a
concise statement of material facts on which the
petitioner relies", is that such non-compliance of
Section 83(1)(a) read with Order VII, Rule 11,
CPC, may entail dismissal of the Election Petition
right at the threshold. "Material facts" are facts
which if established would give the petitioner the
relief asked for. The test required to be
answered is whether the court could have given
a direct verdict in favour of the election
petitioner in case the returned candidate had not
appeared to oppose the Election petition on the
basis of the facts pleaded in the petition. 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. Material facts
would include positive statement of facts as also
positive statement of a negative fact.
xxx xxx xxx
194
28. The legal position enunciated in afore-stated
cases may be summed up as under:--
i. Section 83(1)(a) of RP Act, 1951
mandates that an Election petition shall
contain a concise statement of material
facts on which the petitioner relies. If
material facts are not stated in an
Election petition, the same is liable to be
dismissed on that ground alone, as the
case would be covered by Clause (a) of
Rule 11 of Order 7 of the Code.
ii. The material facts must be such facts
as would afford a basis for the
allegations made in the petition and
would constitute the cause of action,
that is every fact which it would be
necessary for the plaintiff/petitioner to
prove, if traversed in order to support
his right to the judgment of court.
Omission of a single material fact would
lead to an incomplete cause of action
and the statement of plaint would
become bad.
iii. Material facts mean the entire bundle
of facts which would constitute a
complete cause of action. Material facts
would include positive statement of facts
195
as also positive averment of a negative
fact, if necessary.
iv. In order to get an election declared
as void under Section 100(1)(d)(iv) of
the RP Act, the Election petitioner must
aver that on account of non-compliance
with the provisions of the Constitution or
of the Act or any rules or orders made
under the Act, the result of the election,
in so far as it concerned the returned
candidate, was materially affected.
v. The Election petition is a serious
matter and it cannot be treated lightly
or in a fanciful manner nor is it given to
a person who uses it as a handle for
vexatious purpose.
vi. An Election petition can be summarily
dismissed on the omission of a single
material fact leading to an incomplete
cause of action, or omission to contain a
concise statement of material facts on
which the petitioner relies for
establishing a cause of action, in
exercise of the powers under Clause (a)
of Rule 11 of Order VII CPC read with
the mandatory requirements enjoined
by Section 83 of the RP Act.
196
29. In the light of the afore-stated legal position,
let us see whether the respondent/election
petitioner had complied with the requirements of
Section 83(1)(a) of the RP Act, by stating
"material facts" in the Election petition,
constituting cause of action and the ground as
contemplated in Section 100(1)(d)(iv) of the RP
Act, for declaring the election of the Appellant-
returned candidate to be void. The bone of
contention raised by the learned counsel
appearing for the respondent-election petitioner
is that the Election Commission of India had
called for the information prescribing the Form
26 in regard to status of filing of income tax
return of candidates and their family members
by exercising powers under Article 324 of the
Constitution of India and in that the petitioner
had provided information that her spouse was
working as consultant at foreign country and
earning salary against the column No. 8, Serial
No. 9(b) and 9A(b), respectively under Part A of
Form 26. Besides, she had mentioned "No" to
the query regarding Income tax dues of her
spouse, (mentioned as "Ethumilai" in Tamil
language). She had further stated that her
spouse had bank accounts in Singapore with
deposit of dollars against column No. 7 Serial
No. (ii) of column in Part A of Form 26 but had
failed to disclose the status of filing income tax
return of her spouse in the foreign country. He
197
therefore submitted that these material facts
which have already been stated in the Election
petition, were sufficient to constitute cause of
action for filing Election petition under Section
100(1)(d)(iv) of the RP Act.
30. It may be noted the precise allegations
made by the respondent-election petitioner in
para 5 to 9 of his Election petition have already
been reproduced hereinbefore, from which it
clearly transpires that the election petitioner i.e.,
the respondent has made very bald and vague
allegations without stating the material facts as
to how there was non-compliance of any of the
provisions of the Constitution of India or of the
RP Act or of the rules made thereunder. If the
averments made in the Election petition are read
in juxtaposition to the information furnished by
the appellant-returned candidate in Form No.
26, it clearly emerges that against the
information sought about the PAN number of the
spouse of the appellant, it has been stated that
"No PAN No.", "Spouse K. Aravindhan Foreign
Citizenship". Against the information sought with
regard to "The financial year for which the last
income tax return has been filed", the
information supplied by the appellant about her
spouse is "Not applicable". The appellant has
filled in all the columns of Form No. 26 by
furnishing the information with regard to her
198
Permanent Account Number and status of filing
of income tax return etc. and of her husband
wherever applicable. If according to the
respondent-election petitioner, the appellant-
returned candidate had suppressed the
Permanent Account Number of her spouse and
also about the non-payment of income tax of her
spouse in the foreign country, it was obligatory
on the part of the Election petitioner to state in
the Election petition as to what was the
Permanent Account Number of the spouse of the
returned candidate in India which was
suppressed by her and how the other details
furnished about her husband in the said Form
No. 26 were incomplete or false.
31. Mere bald and vague allegations without any
basis would not be sufficient compliance of the
requirement of stating material facts in the
Election Petition. As well settled not only positive
statement of facts, even a positive statement of
negative fact is also required to be stated, as it
would be a material fact constituting a cause of
action. The material facts which are primary and
basic facts have to be pleaded by the Election
petitioner in support of the case set up by him to
show his cause of action and omission of a single
material fact would lead to an incomplete cause
of action, entitling the returned candidate to
pray for dismissal of Election petition under
199
Order VII Rule 11(a) CPC read with Section
83(1)(a) of the RP Act.
32. It is also significant to note that an affidavit
in Form 26 along with the nomination paper, is
required to be furnished by the candidate as per
Rule 4A of the said Rules read with Section 33 of
the said Act. The Returning Officer is empowered
either on the objections made to any nomination
or on his own motion, to reject any nomination
on the grounds mentioned in Section 36(2),
including on the ground that there has been a
failure to comply with any of the provisions of
Section 33 of the Act. However, at the time of
scrutiny of the nomination paper and the
affidavit in the Form 26 furnished by the
Appellant-returned candidate, neither any
objection was raised, nor the Returning Officer
had found any lapse or non-compliance of
Section 33 or Rule 4A of the Rules. Assuming
that the election petitioner did not have the
opportunity to see the Form No. 26 filled in by
the Appellant-returned candidate, when she
submitted the same to the Returning Officer,
and assuming that the Returning Officer had not
properly scrutinized the nomination paper of the
appellant, and assuming that the election
petitioner had a right to question the same by
filing the Election petition under Section
100(1)(d)(iv) of the said Act, then also there are
200
no material facts stated in the petition
constituting cause of action under Section
100(1)(d)(iv) of the RP Act. In absence of
material facts constituting cause of action for
filing Election petition under Section
100(1)(d)(iv) of the said Act, the Election
petition is required to be dismissed under Order
VII Rule 11(a) CPC read with Section 13(1)(a) of
the RP Act.
33. As elaborately discussed earlier, Section
83(1)(a) of RP Act mandates that an Election
petition shall contain a concise statement of
material facts on which petitioner relies, and
which facts constitute a cause of action. Such
facts would include positive statement of facts
as also positive averment of negative fact.
Omission of a singular fact would lead to
incomplete cause of action. So far as the present
petition is concerned, there is no averment
made as to how there was non-compliance with
provisions of the Constitution or of RP Act or of
the Rules or Order made thereunder and as to
how such non-compliance had materially
affected the result of the election, so as to
attract the ground under Section 100(1)(d)(iv)
of the RP Act, for declaring the election to be
void. The omission to state such vital and basic
facts has rendered the petition liable to be
201
dismissed under Order VII, Rule 11(a) CPC read
with Section 83(i)(a) of the RP Act, 1951."
In the case of Madiraju Venkata Ramana Raju
-Vrs.- Peddireddigari Ramachandra Reddy & Others
reported in (2018) 14 Supreme Court Cases 1, the Hon'ble
Supreme Court has held that the election petition will have to be
read as a whole and cannot be dissected sentence-wise or
paragraph-wise to rule that the same does not disclose a cause
of action. Cause of action embodies a bundle of facts which may
be necessary for the plaintiffs to prove in order to get a relief
from the Court. It is further held that the pleadings of the
election petition should be precise and clear containing all the
necessary details and particulars as required by law. 'Material
facts' would mean all the basic facts constituting the ingredients
on the grounds stated in the election petition in the context of
relief to declare the election to be void. It is well established that
in an election petition whether a particular fact is material or not
and as such required to be pleaded, is a question which depends
on the nature of the grounds relied upon and the special
circumstances of the case. Particulars, on the other hand, are
the details of the case set up by the party.
202
After carefully going through the averments and
pleadings, I find that the election petition reveals a clear and
complete picture of the circumstances and also discloses a
definite cause of action. There is no dispute on the proposition of
law that the election petition must clearly and unambiguously set
out all the material facts which the petitioner is to rely upon
during the trial and that failure to plead material facts is fatal to
the election petition and that one cannot file an election petition
based on frivolous grounds rather the facts presented must be
clear, concise and unambiguous. I am of the humble view that
the Election Petitioner has pleaded all material facts in the
election petition.
Every candidate contesting the General Assembly
election of the Constituency held in the year 2019 was required
to file their nomination papers in Form 2B only as appended to
the 1961 Rules and not in any other form. In view of the
foregoing discussions, I am of the humble view that during the
trial, by adducing oral and documentary evidence, it has been
proved by the Election Petitioner that the nomination papers filed
by the Respondent were not in the prescribed Form 2B. Even the
Returning Officer (P.W.3) has stated that nomination papers filed
by the Respondent in Exts.39, 40, 41 and 42 were not exactly in
203
the prescribed Form 2B. Thus, the Returning Officer (P.W.3) has
illegally and improperly accepted such nomination papers and
the mandate of section 33 of the R.P. Act, 1951 read with Rule 4
of the 1961 Rules and the instructions issued by the Election
Commission of India in exercise of power under Article 324 of
the Constitution of India have been violated. The deletion of
PART-II of the nomination in Form 2B by the Respondent in
pursuance to the instruction given in the prescribed nomination
Form 2B renders his nomination liable for rejection. The
Respondent has not furnished all the required information as
required in PART-III of nomination Form-2B. The Respondent has
not furnished all the information as required in PART-IIIA of
nomination Form 2B. The defects as pointed out by the Election
Petitioner regarding deletion of PART-II of nomination Form 2B
as well as with respect to PART-III and PART-IIIA of nomination
Form 2B constitute a substantial defect and as such the
nomination filed by the Respondent was not rightly accepted by
the Returning Officer as prescribed under section 36(4) of the
R.P. Act, 1951. The Respondent filed his nomination papers in
violation of section 33 of the R.P. Act, 1951. Part-III and the
column nos.(3) to (9) of Part-IIIA of Form 2B of the nomination
papers filed by the Respondent were not in the prescribed Form.
204
The nomination papers of the Respondent were liable to be
rejected by the Returning Officer as the same were not in the
prescribed Form 2B. The Returning Officer illegally and
improperly accepted the nomination papers filed by the
Respondent in violation of section 33 of the R.P. Act, 1951 read
with Rule 4 of the Conduct of Election Rules, 1961. The
Returning Officer should have rejected the nomination of the
Respondent in exercise of power under section 36 of the R.P.
Act, 1951 at the time of scrutiny of the nomination papers. On
account of the defects as pointed out by the Election Petitioner
under paragraph 7(A) of the Election Petition, the result of the
election, insofar as it concerns the returned candidate i.e. the
Respondent, has been materially affected.
Accordingly, issue nos.4 to 14 are answered in favour
of the Election Petitioner and against the Respondent.
10. Issue Nos.15, 16, 19 & 20:-
Issues nos. 15, 16, 19 and 20 which are interlinked
with each other are now to be dealt with together. Such issues
are extracted herein below for ready reference:-
15. Whether the sole Respondent has filed his
affidavit in Form 26 dated 03.04.2019 along with
205
his nomination papers on 02.04.2019 or has
filed the said affidavit on 04.04.2019?
16. Whether the Returning Officer has received
the affidavit in Form 26 dated 03.04.2019 from
the sole Respondent on 04.04.2019 and has
issued a 'Checklist' dated 04.04.2019 to the sole
Respondent for the same or not?
19. Whether the affidavit dated 03.04.2019 in
Form 26 filed along with the nomination papers
on 02.04.2019 is valid and legal in the eyes of
law?
20. Whether the Returning Officer should have
rejected the nomination papers filed on
02.04.2019 along with the affidavit dated
03.04.2019 being non-est in the eyes of law but
the same was illegally and improperly accepted
by the Returning Officer of 90-Barabati Cuttack
Assembly Constituency?
Mr. Milan Kanungo, learned counsel for the Election
Petitioner submitted that in para 7(B) of the election petition, it
has been pleaded by the Election Petitioner that the Respondent
has not filed the affidavit in prescribed Form 26 as required
U/s.33A of the R.P. Act, 1951. According to section 33A, a
candidate shall, apart from any information which he is required
to furnish, under this Act or the rules made thereunder, in his
nomination paper delivered under sub-section (1) of section 33,
206
also furnish the information as to whether- (i) he is accused of
any offence punishable with imprisonment for two years or more
in a pending case in which a charge has been framed by the
Court of competent jurisdiction; (ii) he has been convicted of an
offence [other than any offence referred to in sub-section (1) or
sub-section (2), or covered in sub-section (3), of section 8] and
sentenced to imprisonment of one year or more. The Respondent
filed his nomination before the Returning Officer on 02.04.2019
along with the affidavit dated 03.04.2019 said to be in Form 26.
The Respondent has submitted four sets of nomination papers
with affidavit as per the information available in the web portal.
The Election Petitioner downloaded the nomination papers and
the affidavit filed by the Respondent from the web portal and
came to know that the affidavit along with his nomination paper
filed on 02.04.2019 is of dated 03.04.2019 which is a date
subsequent to the filing of the nomination paper. Thus, the
affidavit dated 03.04.2019 is no affidavit in the eye of law. The
affidavit dated 03.04.2019 filed on 02.04.2019 by the
Respondent is in contravention of the mandate of the law. The
Returning Officer should have rejected the nomination papers
filed by the Respondent on 02.04.2019 along with the affidavit
dated 03.04.2019 but the same has not been done by the
207
Returning Officer at the behest of the Respondent and the
Returning Officer has deliberately and illegally accepted the
nomination paper dated 02.04.2019 along with the affidavit
dated 03.04.2019 of the Respondent, though it was his duty to
reject the same as the Respondent had filed the affidavit which is
not a valid affidavit as required under law. Therefore, the
nomination papers dated 02.04.2019 of the Respondent are
invalid nomination and the votes received in favour of the
Respondent cannot be treated as valid votes and thus, the result
of election has been materially affected so far as it relates to the
Constituency and as such the same is liable to be set aside.
Mr. Milan Kanungo, learned counsel argued that the
Respondent in his written statement has pleaded that while
making the above allegation under para 7(B) of the election
petition, the Election Petitioner has wilfully and deliberately
suppressed the material facts and the pleadings made
thereunder do not disclose complete cause of action. The
Respondent filed his affidavit in Form 26 dated 02.04.2019 along
with his nomination papers on 02.04.2019. The Returning Officer
(P.W.3) made preliminary examination and found that
column/serial nos. 5, 6, 7 & 8 of the said affidavit in Form 26
were not properly mentioned. Therefore, P.W.3 issued
208
instructions to file a fresh/revised affidavit before the
commencement of scrutiny of nominations and issued checklists
dated 02.04.2019 to the Respondent. In due compliance to the
instructions issued by P.W.3 under the checklist, the Respondent
prepared a fresh/revised affidavit in Form 26 on 03.04.2019 and
submitted the said revised affidavit before the Returning Officer
on 04.04.2019. The Returning Officer upon receiving the revised
affidavit dated 03.04.2019, issued a checklist to that effect to
the Respondent on 04.04.2019.
To substantiate the above pleadings the Election
Petitioner exhibited Exts.1 to 4, 32 to 35, 32/5 to 35/5, 32/6 to
35/6, 32/7 to 35/7, 32/8 to 35/8, 38, 38/5, 38/6, 39/1 to 39/4,
40/1 to 40/3, 41/1 to 41/3, 42/1 to 42/3, 43 to 46, 43/1 to
46/1, 47 & 47/1 and the Respondent exhibited Ext.W to W/12
and BL.
The relevant parts of Section 33A of the R.P. Act,
1951 reads as follows:-
"33A. Right to information.-(1) A candidate
shall, apart from any information which he is
required to furnish, under this Act or the rules
made thereunder, in his nomination paper
209
delivered under sub-section (1) of section
33........
xxx xxx xxx
(2) The candidate or his proposer, as the case
may be, shall, at the time of delivering to the
returning officer the nomination paper under
sub-section (1) of section 33, also deliver to him
an affidavit sworn by the candidate in a
prescribed form verifying the information
specified in sub-section (1).
Rule 4A of the 1961 Rules prescribes as follows:-
4A. Form of affidavit to be filed at the time
of delivering nomination paper.- The
candidate or his proposer, as the case may be,
shall, at the time of delivering to the returning
officer the nomination paper under sub-section
(1) of section 33 of the Act, also deliver to him
an affidavit sworn by the candidate before a
Magistrate of the first class or a Notary in Form
26.
Clause 5.16.1 (Ext.38/6) at page 83 of Ext.38
(HBRO) prescribes, along with the nomination paper, every
candidate is required to file an affidavit in Form 26, declaring
information about criminal cases, assets, liabilities and
educational qualifications. It further provides that each page of
210
the affidavit should be signed by the deponent concerned or the
affidavit should bear on each page the stamp of the Notary/Oath
Commissioner/Magistrate before whom the affidavit is sworn.
The duly sworn affidavits should be on stamp paper of such
denomination as prescribed under the State law of the State
concerned. It would be for the Returning Officer to decide the
validity of the affidavit in Form 26.
Learned counsel for the Election Petitioner drew the
attention of this Court to the evidence of the Respondent as
R.W.1 in his cross-examination wherein he has admitted that he
used to swear number of affidavits on different occasions for
different purposes. The affidavits are made on the non-judicial
stamp paper. The Respondent in his cross-examination has
stated as follows:-
Q. Can you tell when you purchased the stamp
paper on which the affidavit in Form 26 was
typed out as per Ext.43?
Ans. I do not remember.
Q. Can you tell who purchased the stamp paper?
Ans. I do not remember.
211
(After verifying Ext.43, the witness answers)
The Respondent has further stated that the stamp
paper was purchased by Sk. Suleman on 30.03.2019 on his
behalf. Ext.39/1 is the affidavit in Form 26 which was filed by
him on 02.04.2019 along with his nomination paper. Ext.39/1
was typed on a plain paper. The Respondent in his cross-
examination has further stated as follows:-
Q. Can you assign any reason as to why on
02.04.2019 you filed Ext.39/1 in plain paper
even though you have purchased stamp paper
on 30.03.2019?
Ans. My advocate can reply.
Q. After verifying Ext.39/1 and Ext.43, can you
tell at what time you sworn the affidavits before
Iqbal Bux, Notary Public, Cuttack Town, Regd.
No.ON-23/98?
Ans. No. Neither the documents indicate the
same nor I can recollect now.
Ext.40/1, Ext.41/1 and Ext.42/1 are the original
affidavits in Form 26 which were typed in plain
papers.
Q. Can you tell why you filed the revised
affidavit original in Form 26 vide Ext.43 in stamp
paper whereas the xerox attested true copies of
212
the revised affidavit in Form 26 vide Ext.44,
Ext.45 and Ext.46 were filed on 04.04.2019?
Ans. Since there was no necessity of filing
Ext.44, Ext.45 and Ext.46 in stamp papers along
with the revised affidavit (original) in Form 26
vide Ext.43 and the Returning Officer was
accepting the xerox attested true copies, I did
not file the other three affidavits in original in
stamp papers.
Learned counsel for the Election Petitioner drew the
attention of this Court to the evidence of the Returning Officer
(P.W.3) in which he has stated as follows:-
"13. It is prescribed that a stamp paper worth of
Rs. 10/- is to be used for an affidavit purpose as
per the State law. During my incumbency as
Sub-Collector, Cuttack Sadar, number of
persons have sworn affidavits before me using
stamp papers of Rs. 10/-. I have never allowed
any person to swear an affidavit before me by
using plain paper. It is a fact that paragraph
5.16.1 of Chapter-V of Ext.38 indicates that the
duly sworn affidavits should be on stamp paper
of such denomination as prescribed under the
State law of the State concerned. Paragraph
5.16.1 of Chapter-5 of Ext.38 is marked as
Ext.38/6. It is a fact that the affidavits dated
02.04.2019 of the respondent filed along with
213
the nomination papers Ext.39, Ext.40, Ext.41
and Ext.42 are in plain papers. Ext.39/1 (23
sheets) (earlier marked as Y/2) is the plain
paper affidavit filed along with Ext.39, Ext.40/1
(23 sheets) (earlier marked as Y/5) is the plain
paper affidavit filed along with Ext.40, Ext.41/1
(23 sheets) (earlier marked as Y/8) is the plain
paper affidavit filed along with Ext.41, Ext.42/1
(23 sheets) (earlier marked as Y/11) is the plain
paper affidavit filed along with Ext.42."
Q. It is put to you that the affidavits under
Ext.39/1, Ext.40/1, Ext.41/1 and Ext.42/1 were
not in consonance with the provision as
contained in paragraph 5.16.1 of Chapter-5 of
Ext.38?
Ans. I cannot say.
The witness (P.W.3) volunteered and stated that
since the affidavits under Ext.39/1, Ext.40/1, Ext.41/1 and
Ext.42/1 were incomplete, instruction was given to the
Respondent to file revised affidavits, complete in all respect.
Mr. Kanungo, learned Senior Advocate submitted that
Exts.39/1, 40/1, 41/1, 42/1 were the plain paper affidavits dated
02.04.2019 in Form 26 said to have been filed by the
Respondent on 02.04.2019 along with his nomination papers and
214
Exts.39/2, 40/2, 41/2, 42/2 were the checklists said to be issued
by the Returning Officer to the Respondent on 02.04.2019. The
affidavits in Exts.39/1, 40/1, 41/1, 42/1 were plain paper
affidavits which are not permissible under law. Ext. 38/6, i.e.,
clause 5.16.1 at page 83 of the HBRO (Ext.38) prescribes that
the duly sworn affidavits should be on stamp paper of such
denomination as prescribed under State law. Further, the
affidavits Exts.39/1, 40/1, 41/1, 42/1 were not available on the
website of Election Commission of India and there was no note
on the website of the Election Commission of India indicating
that the affidavit filed by the Respondent along with his
nomination papers on 02.04.2019 were plain paper affidavits and
were defective and the Respondent has been asked to file
fresh/revised affidavit in Form 26 on duly stamped paper as
mandated under clause 5.16.1 (Ext.38/6). The Returning Officer
has also not brought to the notice of the Respondent through
checklists Exts.39/2, 40/2, 41/2 and 42/2 that the affidavit filed
in Form 26 was plain paper affidavit and he has been asked to
file fresh affidavit on stamp paper as required under clause
5.16.3 at page 83 of Ext.38 (HBRO). Learned counsel further
submitted that the Election Petitioner in his evidence affidavit
(Ext.36) has stated that the Respondent had filed his nomination
215
papers before the Returning Officer on 02.04.2019 along with
the affidavit dated 03.04.2019 in Form 26. The nomination
papers and the affidavit filed by the Respondent on 02.04.2019
was uploaded by the Returning Officer of the Constituency and
was available in public platform, i.e. web portal of the CEO,
Odisha and subsequently, he found that the nomination papers
and the affidavit dated 03.04.2019 uploaded on 02.04.2019 by
the Returning Officer of the Constituency was not available in the
web portal. The hyperlinks mentioned in the said IA clearly
reveals that affidavit dated 03.04.2019 filed by the Respondent
on 02.04.2019 along with his nomination papers were uploaded
by the Returning Officer of the Constituency on 02.04.2019 in
the web portal of the Election Commission of India. The
downloaded copies of all the nomination papers and affidavit
along with the date of uploading the same and the certificate in
terms of section 65B of the Indian Evidence Act have been
marked as Exts.32 to 35. The Election Petitioner has stated that
the Respondent has submitted four sets of nomination papers
with affidavit as per the information available in the aforesaid
web portals and he downloaded the nomination papers and the
affidavit filed by the Respondent from the aforesaid web portal
and came to know that the affidavit filed on 02.04.2019 along
216
with his nomination papers is of dated 03.04.2019 which is a
date subsequent to the filing of the nomination papers and thus,
the affidavit dated 03.04.2019 filed along with the nomination
papers dated 02.04.2019 is not a valid affidavit in the eye of law.
Learned counsel for the Election Petitioner argued
that it was incumbent upon the Returning Officer to reject the
nomination papers filed by the Respondent on 02.04.2019 along
with the affidavit dated 03.04.2019, but the Returning Officer, at
the behest of the Respondent, has deliberately, illegally and
improperly accepted the nomination papers dated 02.04.2019
along with the affidavit dated 03.04.2019 of the Respondent. The
improper acceptance of the nomination papers dated 02.04.2019
along with the affidavit dated 03.04.2019 are invalid nomination
papers. He drew the attention of this Court to the cross-
examination of the Respondent wherein he has stated as
follows:-
"I have filed four sets of nomination papers to
contest the election from 90-Barabati Cuttack
Assembly Constituency held in the year 2019
which have already been marked as Ext.39,
Ext.40, Ext.41 and Ext.42. Along with my
nomination papers, I have filed four sets of
217
affidavits in Form 26, which have been marked
as Ext.43, Ext.44, Ext.45 and Ext.46."
Learned counsel for the Election Petitioner argued
that Exts.43 to 46 are the affidavit in Form 26 dated 03.04.2019
and the Respondent himself admits that he filed Exts.43 to 46
along with his nomination papers Exts.39 to 42. Exts.39 to 42
were filed on 02.04.2019 and along with the same, Exts.43 to 46
which are dated 03.04.2019 were filed. Such statement of the
Respondent makes it clear that he has not filed the plain paper
affidavit Exts.39/1 to 42/1 along with his nomination paper on
02.04.2019.
Learned counsel for the Election Petitioner drew the
attention of this Court to the cross-examination of the
Respondent wherein he has stated as follows:-
"Ext.43 is the original and final affidavit filed on
04.04.2019. Ext.44, Ext.45 and Ext.46 are not
the original affidavits, but xerox copies of the
affidavits, which have been attested by Notary
as true copies. I have filed one original affidavit
i.e. Ext.43 and three true copies of the affidavits
i.e. Ext.44, Ext.45 and Ext.46 along with my
nomination papers. The contents of all the
affidavits, i.e. Ext.43, Ext.44, Ext.45 and Ext.46
are same. I cannot say whether a candidate is
218
permitted to file true copy of the affidavit along
with his nomination paper filed under sub-
section (1) of section 33 of the R.P. Act before
the Returning Officer."
Learned counsel for the Election Petitioner argued
that according to section 33A(2) of the R.P. Act, 1951, a
candidate or his proposer, as the case may be, shall at the time
of delivering to the Returning Officer the nomination paper under
sub-section (1) of section 33, also deliver to him an affidavit
sworn by the candidate in a prescribed form. Rule 4A of the 1961
Rules mandates that the candidate or his proposer, as the case
maybe, shall at the time of delivering to the Returning Officer
the nomination paper under sub-section (1) of section 33 of the
R.P. Act, also deliver to him an affidavit sworn by the candidate
before a Magistrate of First Class or a Notary in Form 26 and
according to clause 5.16.1 at page 83 of HBRO (Ext.38/6), the
duly sworn affidavit should be on stamp paper. The Act, rules
and instructions of Election Commission never authorised the
candidate to file plain paper affidavit or the xerox attested copies
of the affidavit in Form 26 along with the nomination paper. So
also, the Returning Officer is also not authorised to accept the
plain paper affidavit or the xerox attested copies of the affidavit
in Form 26 along with the nomination paper. Thus, acceptance of
219
the plain paper affidavit and/or the xerox attested copies of the
affidavit in Form 26 under Ext. 44 to 46 by the Returning Officer
is illegal and the nomination papers filed by the Respondent were
to be rejected but the Returning Officer illegally and improperly
accepted the same as such the entire process of election of the
Respondent from the Constituency held in the year 2019 is
vitiated and the same is to be declared as void for non-
compliance of section 33A of R.P. Act, 1951 r/w Rule 4A of the
1961 Rules and Clause 5.16.1 of the HBRO issued by the Election
Commission of India in exercise of power under Article 324 of
the Constitution of India.
Attention is drawn to clause 5.20.3 (Ext.38/5) of
Ext.38 which prescribes about uploading affidavits filed by
candidates on website and it is stated therein that the affidavits
filed by all candidates, whether set up by the recognized political
parties or unrecognized political parties or independents shall be
put up on the website soon after the candidates file the same
and within 24 hours in any event. Even if any candidate
withdraws his candidature, the affidavit already uploaded on the
website shall not be removed. In cases, where columns are left
blank in the affidavit and the notice is issued by Returning
Officer for filing fresh and complete affidavit, the incomplete
220
affidavit may also be uploaded on the website with a note
indicating that the affidavit is incomplete and the candidate has
been issued notice. If and when the candidate files affidavit
subsequently, the same should also be uploaded on the website
immediately on the same day.
According to the learned counsel for the Election
Petitioner, no such notice was given by the Returning Officer in
checklist Exts.39/2, 40/2, 41/2 and 42/2 and no note was given
on the website of Election Commission indicating that the
affidavit filed by the Respondent in Form 26 was not duly
stamped and the Respondent has been issued notice to this
effect. Exts.1 to 4 are the downloaded copy of four sets of
nomination papers dated 02.04.2019 along with the affidavit in
Form 26 dated 03.04.2019 filed by the Respondent before the
Returning Officer. The first page of the Exts.1 to 4 where
candidate details have been mentioned clearly shows that the
documents were uploaded on the website of Election Commission
of India on 02.04.2019 so also the affidavit dated 03.04.2019
was also uploaded on 02.04.2019.
Exts.32 to 35 are the downloaded copies of the
nomination papers dated 02.04.2019 filed by the Respondent
along with the affidavit in Form 26 dated 03.04.2019 and
221
Exts.32/4, 33/4, 34/4 and 35/4 are the certificates u/s.65B of
the Indian Evidence Act of Exts.32 to 35 given by P.W.2
Deepankar Acharya. Exts.32/5, 33/5, 34/5, 35/5, 32/6, 33/6,
34/6 and 35/6 of Exts.32 to 35 shows the date of uploading of
the affidavit dated 03.04.2019 to be 2nd April, 2019.
Exts.32/7, 33/7, 34/7 and 35/7 exhibited by P.W.3
are the downloaded and printed copy of the document in Court
as per order dated 03.05.2023 by the Court Master which shows
the date of uploading of the affidavit and Exts.32/8, 33/8, 34/8,
35/8 are the relevant portion where it is mentioned "Affidavit
uploaded: 2nd April, 2019."
Exts.39/5, 40/4, 41/4 and 42/4 are the downloaded
and printed copies of the nomination papers by the Court Master
in Court pursuant to the order dated 03.05.2023 and Exts.43/1,
44/1, 45/1 and 46/1 are the affidavits in Form 26 filed by the
Respondent on 02.04.2019. The above documents show that the
Respondent filed his four sets of nomination papers on
02.04.2019 along with the affidavit dated 03.04.2019.
Learned counsel for the Election Petitioner further
argued that the Returning Officer (P.W.3) has stated that the
nomination paper as well as the affidavit filed before him as a
222
Returning Officer by each contesting candidate whether it is in
complete form or incomplete were uploaded by him in the
website of the Election Commission of India during General
Assembly Election of the Constituency held in the year 2019. He
admits that only under his digital signature, which was approved
by the Election Commission of India, such nomination paper as
well as the affidavit filed by each contesting candidate were
uploaded by him in the website of the Election Commission of
India and that no other person except he could upload or remove
any document already uploaded in the website of the Election
Commission of India. Learned counsel for the Election Petitioner
drew the attention of this Court to the following evidence of
P.W.3 in which he has stated as follows:-
"It is a fact that the nomination paper in Form
2B as well as the affidavit in Form 26 which was
delivered to me by the Respondent on 2nd April
2019 was uploaded by me in the website of the
Election Commission of India on that day itself."
"Ext.32/5 is the same document which I now
find on opening of the hyperlink of the web
portal of the Election Commission of India
provided in Ext.32 in Court."
"This is the same nomination paper in Form 2B,
which was uploaded by me in the web portal of
223
the Election Commission of India which was filed
before me by the Respondent on 02.04.2019
and numbered by me as 02/LA/2019 in Ext. 39,
which I now find on opening the hyperlink
provided in Ext.32."
Q. Please verify the document which was opened
as per the hyperlink provided in Ext.32 i.e. the
nomination paper dated 02.04.2019 filed by the
Respondent in Form 2B and answer whether the
only affidavit in Form 26 which is appended to
such nomination paper is dated 03.04.2019 or
not?
Ans. Yes. That is the only affidavit available in
the hyperlink.
"This is the affidavit dated 03.04.2019 filed by
the Respondent in Form 26 marked as Ext.43
(earlier marked as Y/1) and at present this is the
only affidavit which is available in the web portal
of Election Commission of India."
"This is the same nomination paper in Form 2B,
which was uploaded by me in the web portal of
the Election Commission of India which was filed
before me by the Respondent on 02.04.2019
and numbered by me as 03/LA/2019 in Ext.40
(earlier marked as Y/3), which I now find on
opening the hyperlink provided in Ext.33."
224
"This is the affidavit dated 03.04.2019 filed by
the Respondent in Form 26 marked as Ext.44
(earlier marked as Y/4) and at present this is the
only affidavit which is available in the web portal
of Election Commission of India. It is a fact that
the affidavit marked as Ext.44 is a Xerox one
attested by Notary Public, Cuttack Town to be
the true copy. This is the same nomination
paper in Form 2B, which was uploaded by me in
the web portal of the Election Commission of
India which was filed before me by the
Respondent on 02.04.2019 and numbered by
me as 04/LA/2019 in Ext.41 (earlier marked as
Y/6), which I now find on opening the hyperlink
provided in Ext.34."
"This is the affidavit dated 03.04.2019 filed by
the Respondent in Form 26 marked as Ext.45
(earlier marked as Y/7) and at present this is the
only affidavit which is available in the web portal
of Election Commission of India. It is a fact that
the affidavit marked as Ext.45 is a Xerox one
attested by Notary Public, Cuttack Town to be
the true copy."
"This is the same nomination paper in Form 2B,
which was uploaded by me in the web portal of
the Election Commission of India which was filed
before me by the Respondent on 02.04.2019
and numbered by me as 05/LA/2019 in Ext.42
225
(earlier marked as Y/9), which I now find on
opening the hyperlink provided in Ext.35."
"This is the affidavit dated 03.04.2019 filed by
the Respondent in Form 26 marked as Ext.46
(earlier marked as Y/10) and at present this is
the only affidavit which is available in the web
portal of Election Commission of India. It is a
fact that the affidavit marked as Ext.46 is a
xerox one attested by Notary Public, Cuttack
Town to be the true copy. The nomination
papers marked as Ext.39, Ext.40, Ext.41 and
Ext.42 which are dated 02.04.2019 received by
me on 02.04.2019 and uploaded by me in the
web portal of the Election Commission of India
on 02.04.2019. All the affidavits which were filed
along with Ext.39, Ext.40, Ext.41 and Ext.42 by
the Respondent were incomplete and those were
also uploaded by me on 02.04.2019. The
affidavits in Form 26 dated 03.04.2019 filed by
the Respondent marked as Ext.43, Ext.44,
Ext.45 and Ext.46 were received by me on
04.04.2019 and those were uploaded by me in
the web portal of the Election Commission of
India on 04.04.2019."
Q. Can you show from the web portal of the
Election Commission of India that the affidavit
dated 03.04.2019 filed by the respondent
Ext.43, Ext.44, Ext.45 and Ext.46 were uploaded
by you on 04.04.2019?
226
Ans. While uploading the affidavit dated
03.04.2019 on 04.04.2019, the system was
over-riding the earlier affidavit dated
02.04.2019 of the Respondent uploaded on
02.04.2019.
Q. Have you intimated about the over-riding of
the earlier affidavit dated 02.04.2019 of the
Respondent uploaded on 02.04.2019 when you
uploaded the affidavit dated 03.04.2019 on
04.04.2019 to the District Election Officer, Chief
Electoral Officer, Odisha and to the Election
Commission of India?
Ans. Since it was a system based configuration,
I felt no necessity of intimating the same to the
District Election Officer, Chief Electoral Officer,
Odisha and to the Election Commission of India.
Q. Can you show from the web portals of the
Election Commission of India that you have
uploaded the affidavit in Form 26 of the
Respondent dated 02.04.2019 on 02.04.2019?
Ans. I cannot show just now.
Q. Whether in terms of the instruction imparted
in paragraph 5.20.3 of the Handbook for
Returning Officer marked as Ext.38/5, have you
given a note that the Respondent has filed
incomplete affidavit dated 02.04.2019 and he
has been issued notice to file fresh affidavit in
227
Ext.32/5 while uploading the same in the web
portals of the Election Commission of India?
Ans. I do not remember about the same now.
Q. Since you have received an incomplete
affidavit dated 02.04.2019 in Form 26 on
02.04.2019, how you mentioned in Ext.32/5 in
the current status as 'accepted'?
Ans. It was a system based configuration.
Q. While answering to a question put to you on
27.04.2023, you said that when you uploaded
the affidavit dated 03.04.2019 on 04.04.2019
(Ext.43, Ext.44, Ext.45 and Ext.46), the system
overrode the earlier affidavit dated 02.04.2019
of the Respondent uploaded on 02.04.2019.
What does it mean that 'the system overrode
the earlier affidavit? Whether the affidavit dated
02.04.2019 was completely removed from the
system or it can be traced out?
Ans. The subsequent affidavit would prevail over
the earlier affidavit and that is how I have used
the term that the system overrode the earlier
affidavit. So far as the second question is
concerned, since it is a system generated
aspect, I am not able to answer the same.
Q. Did you try to verify whether a person
intending to verify the affidavit dated
228
02.04.2019 from the web portal, would be able
to verify the same or not?
Ans. I have not checked that aspect at that
point of time.
Q. Since in Clause 5.20.3 of Chapter-5 of the
Handbook for the Returning Officer marked as
Ext.38, there is a provision that while uploading
the incomplete affidavit of a candidate on the
website, you are also to give a note that the
affidavit is incomplete and the candidate has
been issued notice, whether in this particular
case, you have followed that procedure?
Ans. Yes. I have uploaded the incomplete
affidavit of the respondent dated 02.04.2019. I
do not remember whether along with the
incomplete affidavit, I have uploaded the note
that the affidavit is incomplete one and the
candidate has been issued notice.
Q. Whether on verification of the hyperlink, can
you say whether you have uploaded the note
that the affidavit dated 02.04.2019 is incomplete
one and that you have given a note to the
Respondent and that notice has been issued to
him?
Ans. No I cannot do the same.
229
Q. Whether after 02.04.2019 till the election
process was over, did you try to verify whether
the affidavit dated 02.04.2019 filed by the
Respondent and uploaded by you was available
in the web portal of the Election Commission of
India?
Ans. I have not verified.
Q. Whether any person can verify the affidavit
dated 02.04.2019 filed by the Respondent and
the declarations made therein which you stated
to have uploaded on 02.04.2019 in the web
portal of the Election Commission of India?
Ans. I cannot say.
Q. When you came to know that the system has
overrode the affidavit dated 02.04.2019, did you
take any step to correct the same and re-load
the affidavit dated 02.04.2019 so that a voter
can look into the same?
Ans. I have not done that.
"It is not a fact that I have not uploaded the
affidavit in Form 26 of the respondent dated
02.04.2019 in the web portal of the Election
Commission of India on 02.04.2019."
Learned counsel for the Election Petitioner placed
reliance on the judgment passed by the Hon'ble High Court of
230
Manipur in the case of Houlim Shokhopao Mate -Vrs.- Lorho
S. Pfoze & Ors. reported in MANU/MN/0165/2022 wherein
it is observed as follows:-
"90. The learned senior counsel for the first
respondent submitted that since there was
defect in the nomination paper dated
21.03.2019, a revised nomination paper and the
revised affidavit in Form 26 have been filed on
25.03.2019, which was accepted by the
Returning Officer after scrutiny. The aforesaid
contention of the first respondent has not been
materially proved. This Court already came to
the conclusion that only affidavit in From 26
dated 21.3.2019 was uploaded officially and
there is no record to show that affidavit in Form
26 dated 25.3.2019 of the first respondent was
accepted by the Returning Officer and was
uploaded in the website.
xxx xxx xxx
118. It is also clear that the affidavit which was
said to be accepted by the Returning Officer has
not been uploaded in the official website of the
Election Commission of India as mandated under
law. 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.
231
Additionally, the non-dissemination of the
affidavit in Form 26 dated 25.3.2019 through
the website materially affected the election of
the first respondent.
xxx xxx xxx
124. The initial burden to prove the allegations
made in the Election Petition although was upon
the petitioner, but for proving the facts which
were within the special knowledge of the first
respondent, the burden was upon him in terms
of Section 106 of the Evidence Act. It is also
settled that when both parties have adduced
evidence, the question of onus of proof becomes
academic. Furthermore, an admission on the
part of a party to the list shall be binding on him
and in any event a presumption must be made
that the same is taken to be established. The
Exts.Z/4, to Z/9, which are admittedly filed by
the first respondent before the Returning Officer
and are admitted by him proves the allegation of
the petitioner against the first respondent.
xxx xxx xxx
129. In the instant case, admittedly, the
Returning Officer was in possession of two
different nomination papers and affidavit in Form
26, thereby giving an advantage to the
Returning Officer to compare the same to
232
ascertain the truthfulness of the information
having been provided in both the Forms and
upon finding that the later Form 26 has been
improved upon and even the details of the
jewelleries of the first respondent and his spouse
has been mentioned in Form 26 dated
25.3.2019, the Returning Officer ought to have
rejected the nomination paper, as there was an
intentional omission not typographical error on
the part of the first respondent in filing Form 26
dated 21.3.2019 which was the only Form put
up for public view and uploaded on the website
and not Form 26 dated 25.03.2019. In the
preceding paragraph, this Court held that the
non-dissemination of the affidavit in Form 26
dated 25.3.2019 through the website materially
affected the election of the first respondent.
xxx xxx xxx
132. This Court is of the view that the affidavit
in Form 26 filed by the first respondent suffers
from the defects of substantial character. The
petitioner also established that the first
respondent filed affidavit in Form 26 dated
21.3.2019 along with the nomination paper
submitted by him. The only uploaded affidavit in
Form 26 of the first respondent is dated
21.3.2019 and while filing nomination along with
the affidavit in Form 26, the first respondent has
failed to follow the instructions of the Election
233
Commission of India in relation to separate bank
election expenditure. The act of the first
respondent would amounts to corrupt practice
and therefore, it materially affected the result of
the election of 2-Outer Manipur (ST)
th
Parliamentary Constituency to the 17 Lok
Sabha, 2019."
In the present case, P.W.3, the Returning Officer has
stated as follows:-
Q. Can you show any provision either from the
Representation of the People Act, 1951, the
Conduct of Elections Rules, 1961 and the
Handbook for Returning Officer i.e. Ext.38 which
permitted you as a Returning Officer to accept
xerox attested copies of the affidavits under
Ext.44, Ext.45 and Ext.46 along with the
nomination paper Ext.40, Ext.41 and Ext.42
respectively?
Ans. Even after verifying Representation of the
People Act, 1951, the Conduct of Elections
Rules, 1961 and the Handbook for Returning
Officer i.e. Ext.38, at present I am not getting
the provision, which permitted me as a
Returning Officer to accept xerox attested copies
of the affidavits under Ext.44, Ext.45 and Ext.46
along with the nomination paper Ext.40, Ext.41
and Ext.42 respectively.
234
Learned counsel for the Election Petitioner argued
that Exts.44, 45 and 46 are the xerox attested copies of the
affidavit in Form 26 said to be filed by the Respondent on
04.04.2019 whereas neither under the R.P. Act, 1961 Rules nor
the HBRO (Ext.38) authorizes P.W.3 to accept the xerox attested
copies of the affidavit in Form 26. Thus, the acceptance of xerox
attested copies of the affidavit in Form 26 along with the
nomination papers of the Respondent is illegal.
So far as the check lists are concerned, learned
counsel for the Election Petitioner argued that Exts.39/2, 39/3,
40/2, 41/2, 42/2 are the checklist dated 02.04.2019 said to have
been issued by P.W.3 to the Respondent on 02.04.2019.
Clause 5.16.3 of HBRO (Ext.38) reads as follow:-
"If any candidate fails to file the said affidavit
along with his nomination paper, Returning
Officer should bring to his notice this
requirement through the check list handed over
to the candidates or proposers. The candidate
should be asked to file duly sworn affidavit latest
by 3.00 p.m. on the last date of filing
nominations."
235
Clause 5.11.4 of Ext.38 prescribes as follows:-
"In order to bring more transparency and to
prevent cases of any mischief at any level, with
regard to the documents, the Commission has
decided to streamline the procedure as follows:
a) In respect of each candidate, the RO should
maintain, in duplicate, the checklist of the
documents/requirements to be fulfilled by the
candidates, as per the list given above.
b) When a candidate files nomination paper,
the Returning Officer or the Specified Assistant
Returning Officer shall indicate in the second
column of the check list whether the documents
concerned have been filed or the
other/requirements fulfilled. If there is any
defect or short coming in the documents, the
same should be specified.
c) xxx xxx xxx
Once the Returning Officer records in the CHECK
LIST prepared by him at the time of
presentation of the nomination paper that a
particular document/requirement has been
filed/fulfilled he cannot later take the stand that
the document was not in order (Civil Appeal
No.4956 of 2010 - Ramesh Rout Vs. Ravindra
Nath Rout [2012 (1) SCJ 567]). The Commission
236
has directed that while checking the documents
filed with nomination paper and filling up the
Check List, the Returning Officer or the Specified
Assistant Returning Officer should also make an
endorsement about defect, if any, noticed in the
documents filed with the nomination papers. In
cases where a candidate put up by a political
party has either not filed Forms "A" and "B", or
the Forms filed are not as per the requirements
(not properly filled up or are not signed in
original, etc.) while preparing Form 3A (Notice of
Nomination) a mention to this effect shall be
made under Column 6 with respect to such
candidate. (ECI Instruction No 576/3/2013/ SDR
dated 21.1.2013)
d) xxx xxx xxx
e) xxx xxx xxx
f) If and when a document is filed subsequent
to filing of nomination, an acknowledgement to
that effect should be issued to the candidates
nearly mentioning the date and time at which it
is filed. This should also be indicated in the
appropriate place in the original checklist
retained by the Returning Officer".
237
Clause 5.13.1 of Ext.38 prescribes as follows:-
"No misnomer or inaccurate description or
clerical, technical or printing error in regard to
the name of the candidate or his proposers or
any other person or in regard to any place
mentioned in the electoral roll or the nomination
paper and no clerical, technical or printing error
in regard to the electoral roll numbers of any
such person in the electoral roll or the
nomination paper shall affect the full operation
of the electoral roll or the nomination paper with
respect to such person or place in any case
where the description in regard to the name of
the person or place is such as is commonly
understood. Returning Officer shall permit any
such misnomer or inaccurate description or
clerical, technical or printing error to be
corrected and where necessary direct that any
such misnomer, inaccurate description, clerical,
technical or printing error in the electoral roll or
in the nomination papers shall be overlooked.
Returning Officer has no power in law to allow
any other error to be corrected (See Section
33(4) of RP Act, 1951).
5.13.2 Similarly, if there is a complaint regarding
mismatch of photo in the photo electoral roll,
Returning Officer shall overlook the same after
satisfying himself/herself about the identity of
238
the person through some other document
produced by him.
5.13.3 Points, which Returning Officer is thus
required to dispose off under Section 33(4) of
the said Act, should invariably be disposed of at
this stage. It will be undesirable for Returning
Officer at the time of scrutiny to reject a
nomination paper for defects, which could have
been thus cured at the earlier stage of the
presentation of the nomination paper.
Learned counsel for the Election Petitioner drew the
attention of this Court to the following evidence of P.W.3:-
"As per the provision as contained in paragraphs
5.16.3 and 5.16.4 of Ext.38, as a Returning
Officer, I have to prepare a checklist in duplicate
and handover the same to the concerned
candidate or his proposer bringing to his notice
the requirement in the duly sworn affidavit. The
original of the checklist is kept with the
nomination paper and the duplicate of the same
is handed over to the concerned candidate or his
proposer. I have prepared this checklist dated
02.04.2019 marked as Ext.39/2 (one sheet),
which is available along with Ext.39. It is a fact
that in Ext.39/2 I have not indicated that the
affidavit filed by the Respondent dated
02.04.2019 was in plain paper and that he was
239
instructed to file it in required stamp paper. xxx
xxx xxx From Ext.39/2, it appears that I have
prepared the same on 02.04.2019 at 11.45 a.m.
at Cuttack, which I have mentioned therein. As
per paragraph 5.16.4 of Ext.38, as a Returning
Officer, I am supposed to give notice to the
candidates if any column of the affidavit in Form
26 has been left blank or filled by just tick
mark/dash marking and in this case, I have
given notice to the respondent in that respect in
the checklist marked as Ext.39/2."
"The respondent had filed four sets of
nomination papers along with affidavit dated
02.04.2019 along with other documents on
02.04.2019 and I verified each of the
nomination paper so also the affidavit and
prepared the checklist separately with respect to
each set of nomination paper. After verifying the
nomination paper marked as Ext.39 along with
the affidavit marked as Ext.39/1 and other
accompanying documents, I prepared the
checklist marked as Ext.39/2. Thereafter, I
verified the nomination paper marked as Ext.40
along with the affidavit marked as Ext.40/1 and
other accompanying documents, I prepared this
checklist marked as Ext.40/2 (one sheet).
Thereafter, I verified the nomination paper
marked as Ext.41 along with the affidavit
marked as Ext.41/1 and other accompanying
240
documents, I prepared this checklist marked as
Ext.41/2 (one sheet). Thereafter, I verified the
nomination paper marked as Ext.42 along with
the affidavit marked as Ext.42/1 and other
accompanying documents, I prepared this
checklist marked as Ext.42/2 (one sheet)."
"The Respondent had filed four sets of
nomination papers along with four affidavits in
Form 26 apart from other required documents
and I have prepared four checklists after
verifying the same."
"I prepared one checklist and then I proceeded
to verify the 2nd set and in the like manner 3rd
set and 4th set."
"It is a fact that in Ext.40/2, though I have put
the date as 02.04.2019 under my signature
above the writing 'signature of RO/ARO', but
against the date, time and place, which is
available below the 'signature of candidate', no
date, time and place has been mentioned."
"The portion 'date, time and place', which is
available below the 'signature of candidate' in
Ext.39/2 has been filled up, is not in my
handwriting and the same is marked as
Ext.39/4".
"The checklist Ext.39/2 has been filled up by a
team of officers, who were assisting me at the
241
relevant point of time and I have only put my
signature and the date above the writing
'signature of RO/ARO' after due verification. I
cannot say who has filled up the portion marked
as Ext.39/4. The handwritings appearing in the
check list Ext.39/2 are not mine. My team of
officers has filled it up under my supervision and
instruction."
"Ext.39/4 is the portion date, time and place
below the signature of candidate in Ext.39/2 i.e.,
the checklist. The portion date, time and place
below the signature of candidate in Ext.39/2 has
been filled is not in my handwriting. The same
has been filled up by team of officers assisting
me. I cannot say who has filled up the portion
marked as Ext.39/4".
"The checklists dated 02.04.2019, i.e. Ext.40/2,
Ext.41/2 and Ext.42/2 have been filled up by a
team of officers, who were assisting me at the
relevant point of time under my instruction and
supervision and I have only put my signature
and the date above the writing 'signature of
RO/ARO' after due verification. The date and
time and place which are appearing below the
'signature of candidate' in Ext.40/2 have not
been filled up and the same is marked as
Ext.40/3. I cannot say who has filled up date
and time and place which are appearing below
the 'signature of candidate' in Ext.41/2 and the
242
same is marked as Ext.41/3. I cannot say who
has filled up date and time and place which are
appearing below the 'signature of candidate' in
Ext.42/2 and the same is marked as Ext.42/3.
Different officers of my team have filled up the
handwritten portion of Ext.39/2, Ext.40/2,
Ext.41/2 and Ext.42/2 under my supervision and
instruction. I cannot recollect now as to who
were the officers of my team were then who
filled the handwritten portion of Ext.39/2,
Ext.40/2, Ext.41/2 and Ext.42/2 under my
supervision and instruction. I do not remember
who were the officers and staff of my team then
assisting me during the preparation of checklists
under Ext.39/2, Ext.40/2, Ext.41/2 and
Ext.42/2. It is a fact that in Ext.40/2, Ext.41/2
and Ext.42/2, I have not put a tick mark in Col.
(b) under the headings of 'the following
documents which have not been filed should be
filed as indicated below' as I have done in
Ext.39/2. It is a fact that in Ext.41/2 I have not
put any mark in Columns (a), (b) and (c) under
the headings of 'the following documents which
have not been filed should be filed as indicated
below. Since in Sl.No.1 of Ext.41/2, it has been
indicated that the affidavit in Form 26 is not as
per the prescribed format and Col. Nos.(5), (6),
(7) and (8) not properly mentioned, there was
no necessity of again specifying the same by
filling up of Col. Nos.(a), (b) and (c) under the
243
headings of 'the following documents which have
not been filed should be filed as indicated below.
Q. Why in Ext.39/2, you have put a tick mark in
Co.(b) under the headings of 'the following
documents which have not been filed should be
filed as indicated below and not in Ext.40/2,
Ext.41/2 and Ext.42/2?
Ans. I cannot assign any reason why it has been
done like that.
"Ext.40/3 is the portion date, time and place
below the signature of candidate in Ext.40/2 i.e.,
the checklist which have not been filled up."
"Ext.41/3 is the portion date, time and place
below the signature of candidate in Ext.41/2 i.e.,
the checklist, the R.O., P.W.3 has stated that I
cannot say who has filled up date, time and
place appearing below the signature of candidate
in Ext.41/2."
"Ext.42/3 is the portion date, time and place
below the signature of candidate in Ext.42/2 i.e.,
the checklist, the R.O., P.W.3 has stated that I
cannot say who has filled up date, time and
place appearing below the signature of candidate
in Ext.42/2."
"Ext.43 is the Original affidavit dated
03.04.2019. Exts.44, 45 & 46 are the xerox
244
attested copy of the affidavit dated 03.04.2019
filed by the Respondent said to be revised
affidavit filed on 04.04.2019 and Ext.47 is the
checklist dated 04.04.2019."
"It is a fact that after submission of the revised
affidavit in Form 26 by the Respondent on
04.04.2019, I prepared a checklist of documents
in duplicate. The original of the said checklist
dated 04.04.2019 was kept with the nomination
paper and the duplicate was handed over to the
Respondent after taking his signature. The
original checklist dated 04.04.2019 is marked as
Ext.47."
"In Ext.47, the serial numbers of four
nomination papers i.e. 02, 03, 04 and
05/LA/2019/RO have been mentioned in the top
by me. Again says, the same has been filled up
by the team of officers, who were assisting me
at the relevant point of time under my
instruction and supervision."
"The handwritten portion in Ext.47 has also been
filled up by the team of officers. I have put only
signature and date in Ext.47. The witness
volunteers- After due verification, I put my
signature and date in Ext.47. After due
verification of Ext.43, Ext.44, Ext.45 and Ext.46,
I instructed my team of officers to fill up
checklist Ext.47 since I found that all the
245
columns are filled up. Only Ext.43 was the
original one and Ext.44, Ext.45 and Ext.46 are
the xerox attested copies of Ext.43. I cannot say
who has filled up the date and time and place in
Ext.47 which are appearing below the signature
of candidate. The relevant portion is marked as
Ext.47/1. I cannot say the name and designation
of the officer or the staff of my team who filled
up handwritten portion of Ext.47."
Mr. Kanungo, learned Senior Advocate further argued
that according to clause 5.11.4 and clause 5.16.3 and 5.16.4 of
HBRO (Ext.38), the Returning Officer himself is to prepare the
checklist and no other person is authorised to verify the
documents filed along with the nomination papers and the
Returning Officer in his evidence admitted the same, whereas he
has stated that, he has only put signatures on the checklist and
the handwritten portions of the checklist were filled up by his
team of officers but he was unable to name the team of officers
who had filled up the same. Thus, the acceptance of nomination
papers and the issuance of checklist by P.W.3 were not as per
the instructions issued by the Election Commission of India in
HBRO and hence, the statements made P.W.3 cannot be
believed.
246
"This is the downloaded and printed copy of
Ext.32/5 as per the order of this Court dated
03.05.2023 marked as Ext.32/7 and the relevant
portion where it is mentioned 'Affidavit
Uploaded: 2nd April 2019' is marked as Ext.32/8.
This is the downloaded and printed copy of
nomination paper Ext.39 as per the order of this
Court dated 03.05.2023 marked as Ext.39/5.
This is the downloaded and printed copy of the
affidavit Ext.43 as per the order of this Court
dated 03.05.2023 marked as Ext.43/1."
"This is the downloaded and printed copy of
Ext.33/5 as per the order of this Court dated
03.05.2023 marked as Ext.33/7 and the relevant
portion where it is mentioned 'Affidavit
Uploaded: 2nd April 2019' is marked as Ext.33/8.
This is the downloaded and printed copy of
nomination paper Ext.40 as per the order of this
Court dated 03.05.2023 marked as Ext.40/4.
This is the downloaded and printed copy of the
affidavit Ext.44 as per the order of this Court
dated 03.05.2023 marked as Ext.44/1."
"This is the downloaded and printed copy of
Ext.34/5 as per the order of this Court dated
03.05.2023 marked as Ext.34/7 and the relevant
portion where it is mentioned 'Affidavit
Uploaded: 2nd April 2019' is marked as Ext.34/8.
This is the downloaded and printed copy of
nomination paper Ext.41 as per the order of this
247
Court dated 03.05.2023 marked as Ext.41/4.
This is the downloaded and printed copy of the
affidavit Ext.45 as per the order of this Court
dated 03.05.2023 marked as Ext.45/1."
"This is the downloaded and printed copy of
Ext.35/5 as per the order of this Court dated
03.05.2023 marked as Ext.35/7 and the relevant
portion where it is mentioned 'Affidavit
Uploaded: 2nd April 2019' is marked as Ext.35/8.
This is the downloaded and printed copy of
nomination paper Ext.42 as per the order of this
Court dated 03.05.2023 marked as Ext.42/4.
This is the downloaded and printed copy of the
affidavit Ext.46 as per the order of this Court
dated 03.05.2023 marked as Ext.46/1."
"It is not a fact that in violation of the provisions
contemplated under the Representation of the
People Act, 1951, the Conduct of Elections
Rules, 1961 and Handbook for Returning Officer
(Ext.38), I accepted Ext.39, Ext.40, Ext.41 and
Ext.42 and Ext.43, Ext.44, Ext.45 and Ext.46. It
is not a fact that I have not received the
affidavits of the respondent under Ext.39/1,
Ext.40/1, Ext.41/1 and Ext.42/1 on
02.04.2019."
Mr. Kanungo argued that pursuant to clause (c) of
para 5.11.4 of Ext.38, the Returning Officer has to make an
248
endorsement in the notice of nomination in Form 3A (Ext.AK)
that the affidavit filed by the Respondent in Form 26 was
defective and the Respondent has been asked to file
revised/fresh affidavit in Form 26. A bare perusal of Ext.AK i.e.,
notice of nomination in Form 3A discloses that the Returning
Officer has not made any endorsement in Ext.AK. According to
him, the Respondent has filed his nomination paper on
02.04.2019 along with the affidavit dated 03.04.2019 in Form 26
which is no affidavit in the eyes of law and the Returning Officer
(P.W.3) has illegally and improperly accepted the nomination
paper of the Respondent which materially affected the result of
the election of the Constituency and accordingly, issues nos.15,
16, 19 & 20 are to be answered in favour of the Election
Petitioner.
Mr. Bidyadhar Mishra, learned Senior Advocate for
the Respondent argued that from the affidavits dated
03.04.2019 in Form 26, either downloaded copies filed on behalf
of the Election Petitioner (Exts.1, 2, 3, 4, 32, 33, 34, 35) or
downloaded in Court (Exts.43/1, 44/1, 45/1, 46/1) or originals
produced by the District Election Officer, Cuttack (Exts.43, 44,
45, 46), it will be clearly evident that the affidavit in Form 26
dated 03.04.2019 filed by the sole Respondent is in prescribed
249
Form 26. Therefore, the allegation of the Election Petitioner that
the Respondent has not filed the affidavit in prescribed Form 26
as required U/s.33A of the R.P. Act, 1951 is entirely a false and
concocted allegation. The Election Petitioner even at the time
filing of the election petition on 03.07.2019 was very much
aware about the fact that the Respondent filed his nomination
papers on 02.04.2019 along with four affidavits in Form 26 dated
02.04.2019 (Exts.39/1, 40/1, 41/1, 42/1) before the Returning
Officer (P.W.3) and as the said affidavits in Form 26 dated
02.04.2019 were not in the prescribed format, the Returning
Officer (P.W.3) gave instruction to the Respondent through
'Checklists' (Exts.39/2, 40/2, 41/2, 42/2) to file revised affidavit
before commencement of scrutiny of nominations. Accordingly,
the Respondent filed revised affidavits in Form 26 dated
03.04.2019 (Exts.43, 44, 45, 46) before the Returning Officer
(P.W.3) on 04.04.2019 and upon receipt of the said revised
affidavits in Form 26 dated 03.04.2019, the Returning Officer
(P.W.3) granted a 'Checklist' on 04.04.2019 (Ext.47) to the
Respondent. Therefore, while making the allegation to the effect
that the Respondent has not filed the affidavit in the prescribed
Form 26 as required under section 33A of the R.P. Act, 1951 has
referred to the affidavits in Form 26 dated 02.04.2019
250
(Exts.39/1, 40/1, 41/1, 42/1) filed by the Respondent before the
Returning Officer (P.W.3) on 02.04.2019. Thus, the case of the
Election Petitioner that the Respondent filed his nomination
before the Returning Officer on 02.04.2019 along with the
affidavit dated 03.04.2019 said to be in Form 26, is entirely false
and concocted allegation.
Learned counsel for the Respondent relied upon the
following documents:
Ext.BL: The duplicate of the checklist dated
02.04.2019 handed over by the Returning
Officer (P.W.3) to the respondent with respect to
his 1st set of Nomination papers bearing Sl. No.
02/LA/2019, which was received by him on
02.04.2019 at 11.45 a.m.
Ext.CD: The duplicate of the checklist dated
02.04.2019 handed over by the Returning
Officer (P.W.3) to the respondent with respect to
his 2nd set of Nomination papers bearing Sl. No.
03/LA/2019.
Ext.CU: The duplicate of the checklist dated
02.04.2019 handed over by the Returning
Officer (P.W.3) to the respondent with respect to
his 3rd set of Nomination papers bearing Sl. No.
04/LA/2019.
251
Ext.DL: The duplicate of the checklist dated
02.04.2019 handed over by the Returning
Officer (P.W.3) to the respondent with respect to
his 4th set of Nomination papers bearing Sl. No.
05/LA/2019.
In all these documents, the Returning Officer (P.W.3)
at sl. no. (1) has endorsed that the affidavit in Form 26 is not in
the prescribed format (column No. 5, 6, 7 & 8 not properly
mentioned) and has given instruction to the Respondent to
submit a revised affidavit with columns duly filled up before the
commencement of scrutiny of nominations, failing which the
nomination paper will be liable to be rejected.
Learned counsel for the Respondent also relied upon
the following documents:-
Ext.BP: Duplicate 'checklist of documents in
connection with filing of nominations' dated
04.04.2019 granted by the Returning Officer
(P.W.3) to the respondent with respect to
nomination papers Sl. Nos. 02, 03, 04,
05/LA/2019/RO acknowledging receipt of the
revised affidavit in Form 26 dated 03.04.2019 on
04.04.2019 at 12.20 p.m. from the respondent.
252
In Ext.BP, the Returning Officer (P.W.3) at its sl.
no.(1) has endorsed that all the columns of the affidavit in Form
26 are filled up and the same is sworn before Notary.
Ext.BQ: Forwarding letter of the respondent
dated 03.04.2019 addressed to the Returning
Officer (P.W.3) enclosing therein the revised
affidavits in Form 26 dated 03.04.2019,
submitted to the Returning Officer (P.W.3) on
04.04.2019. This document has been called for
by this Court and produced by the District
Election Officer, Cuttack.
Ext.DP/1: Original Affidavit in Form 26 dated
29.03.2019 of the candidate Priyadarshan Pavel
available along with Ext.DP (Original Nomination
Sl. No. 01/LA/2019). This document has been
called for by this Court and produced by the
District Election Officer, Cuttack.
Ext.DP/2: Original Checklist dated 29.03.2019
available along with Ext.DP (Original Nomination
Sl. No. 01/LA/2019). This document has been
called for by this Court and produced by the
District Election Officer, Cuttack.
In Ext.DP/2, the Returning Officer (P.W.3) at its sl.
no.(1) has endorsed that in the affidavit in Form 26 dated
29.03.2019 filed by the candidate Priyadarshan Pavel all columns
253
are not filled up, column 8(ii)(B) has been left blank and the
Returning Officer (P.W.3) has given instruction to submit a
revised affidavit with columns duly filled up before the
commencement of scrutiny of nominations, failing which the
nomination paper will be liable to be rejected.
Ext.DP/3: Original Revised Affidavit in Form 26
dated 30.03.2019 of the candidate Priyadarshan
Pavel available along with Ext.DP (Original
Nomination Sl. No. 01/LA/2019). This document
has been called for by this Court and produced
by the District Election Officer, Cuttack.
Ext.DP/4: Original Checklist dated 04.04.2019
granted by the Returning Officer (P.W.3) on
04.04.2019 at 1.30 p.m. showing receipt of
revised Affidavit in Form 26 dated 30.03.2019
from the candidate Priyadarshan Pavel with
respect to Nomination Sl. No. 01/LA/2019. This
document has been called for by this Court and
produced by the District Election Officer,
Cuttack.
Ext.DU: Downloaded and printed copy of the
cover page of the Election Commission of India
along with the nomination paper in Form 2B and
affidavit in Form 26 of the candidate
Priyadarshan Pavel. (Downloaded and printed in
Court on 20.07.2023)
254
Ext.DU/1: The cover page of Ext.DU.
Ext.DU/2: The portion showing the affidavit
uploaded on 29th March 2019 in Ext.DU.
Ext.DU/4: Downloaded and printed copy of the
revised affidavit in Form 26 dated 30.03.2019
appearing under Ext.DU.
Ext.W: The I.A. No.24 of 2020 filed by the
election petitioner.
Mr. Mishra, learned Senior Advocate for the
Respondent argued that the evidence of the Returning Officer
(P.W.3) who has received the affidavits in Form 26 dated
02.04.2019 of the Respondent (Ext.39/1, Ext.40/1, Ext.41/1 and
Ext.42/1) on 02.04.2019 along with his four sets of nomination
papers (Ext.39, Ext.40, Ext.41 and Ext.42) and granted
checklists dated 02.04.2019 (Ext.39/2, Ext.BL, Ext.40/2, Ext.CD,
Ext.41/2, Ext.CU, Ext.42/2 and Ext.DL) directing therein to the
Respondent to submit revised affidavit in Form 26 and thereafter
received the revised affidavits in Form 26 dated 03.04.2019
(Ext.43, Ext.44, Ext.45 and Ext.46) on 04.04.2019 and granted
checklist dated 04.04.2019 (Ext.47 and Ext.BP) showing receipt
of the revised affidavit in Form 26 dated 03.04.2019 on
04.04.2019 at 12.20 p.m. from the Respondent, is most vital. He
255
placed reliance on the following evidence of the Returning Officer
(P.W.3), which is reproduced hereunder for ready reference:-
Q. Please verify Form 26 as appended to
Conduct of Elections Rules, 1961 and answer
whether the candidates contesting General
Assembly Election of 90-Barabati Cuttack
Assembly Constituency held in the year 2019
were required to file the affidavit in this
particular Form 26 along with their nomination
papers or not?
Ans. Yes.
Q. Whether all the candidates contesting the
General Assembly Election of 90-Barabati
Cuttack Assembly Constituency held in the year
2019 were required to file their affidavits in
Form 26 along with their nomination papers in
the prescribed Form which is available under
Annexure-12 in the Handbook for the Returning
Officers marked as Ext.38?
Ans. Yes. The Annexure-12 at pages 363 to 378
of Ext.38 is marked as Ext. 38/4 (8 sheets).
"As per paragraph 5.20.3 of Ext.38, the
affidavits filed by all candidates, whether set up
by the recognized political parties or
unrecognized political parties or independents
shall be put up on the website soon after the
256
candidates file the same and within 24 hours in
any event. Even if any candidate withdraws his
candidature, the affidavit already uploaded on
the website shall not be removed."
"In cases where columns are left blank in the
affidavit and notice is issued by the Returning
Officer for filing fresh and complete affidavit, the
incomplete affidavit may also be uploaded on
the website with a note indicating that the
affidavit is incomplete and the candidate has
been issued notice. If and when the candidate
files affidavit subsequently, the same should also
be uploaded on the website immediately on the
same day."
"The nomination paper as well as the affidavit
filed before me as a Returning Officer by each
contesting candidate whether it is in complete
form or incomplete were uploaded by me in the
website of the Election Commission of India
during General Assembly Election of 90-Barabati
Cuttack Assembly Constituency held in the year
2019. It is a fact that only under my digital
signature, which was approved by the Election
Commission of India, such nomination paper as
well as the affidavit filed by each contesting
candidate were uploaded by me in the website of
the Election Commission of India. No other
person except me can upload or remove any
257
document already uploaded in the website of the
Election Commission of India."
"It is a fact that the nomination paper in Form
2B as well as the affidavit in Form 26 which was
delivered to me by the Respondent on 2nd April
2019 were uploaded by me in the website of the
Election Commission of India on that day itself."
Ext. 32/5 is the same document which I now
find on opening of the hyperlink of the web
portal of the Election Commission of India
provided in Ext.32 in Court."
"This is the same nomination paper in Form 2B,
which was uploaded by me in the web portal of
the Election Commission of India which was filed
before me by the Respondent on 02.04.2019
and numbered by me as 02/LA/2019 in Ext.39,
which I now find on opening the hyperlink
provided in Ext.32."
Q. Please verify the document which was opened
as per the hyperlink provided in Ext.32 i.e. the
nomination paper dated 02.04.2019 filed by the
Respondent in Form 2B and answer whether the
only affidavit in Form 26 which is appended to
such nomination paper is dated 03.04.2019 or
not?
Ans. Yes. That is the only affidavit available in
the hyperlink.
258
"This is the affidavit dated 03.04.2019 filed by
the Respondent in Form 26 marked as Ext.43
(earlier marked as Y/1) and at present this is the
only affidavit which is available in the web portal
of Election Commission of India."
"This is the same nomination paper in Form 2B,
which was uploaded by me in the web portal of
the Election Commission of India which was filed
before me by the Respondent on 02.04.2019
and numbered by me as 03/LA/2019 in Ext.40
(earlier marked as Y/3), which I now find on
opening the hyperlink provided in Ext.33."
"This is the affidavit dated 03.04.2019 filed by
the Respondent in Form 26 marked as Ext.44
(earlier marked as Y/4) and at present this is the
only affidavit which is available in the web portal
of Election Commission of India. It is a fact that
the affidavit marked as Ext.44 is a xerox one
attested by Notary Public, Cuttack Town to be
the true copy."
"This is the same nomination paper in Form 2B,
which was uploaded by me in the web portal of
the Election Commission of India which was filed
before me by the Respondent on 02.04.2019
and numbered by me as 04/LA/2019 in Ext.41
(earlier marked as Y/6), which I now find on
opening the hyperlink provided in Ext.34."
259
"This is the affidavit dated 03.04.2019 filed by
the Respondent in Form 26 marked as Ext.45
(earlier marked as Y/7) and at present this is the
only affidavit which is available in the web portal
of Election Commission of India. It is a fact that
the affidavit marked as Ext.45 is a xerox one
attested by Notary Public, Cuttack Town to be
the true copy."
"This is the same nomination paper in Form 2B,
which was uploaded by me in the web portal of
the Election Commission of India which was filed
before me by the Respondent on 02.04.2019
and numbered by me as 05/LA/2019 in Ext.42
(earlier marked as Y/9), which I now find on
opening the hyperlink provided in Ext.35."
"This is the affidavit dated 03.04.2019 filed by
the Respondent in Form 26 marked as Ext.46
(earlier marked as Y/10) and at present this is
the only affidavit which is available in the web
portal of Election Commission of India. It is a
fact that the affidavit marked as Ext.46 is a
Xerox one attested by Notary Public, Cuttack
Town to be the true copy."
"The nomination papers marked as Ext.39,
Ext.40, Ext.41 and Ext.42 which are dated
02.04.2019 received by me on 02.04.2019 and
uploaded by me in the web portal of the Election
Commission of India on 02.04.2019. All the
260
affidavits which were filed along with Ext.39,
Ext.40, Ext.41 and Ext.42 by the Respondent
were incomplete and those were also uploaded
by me on 02.04.2019. The affidavits in Form 26
dated 03.04.2019 filed by the Respondent
marked as Ext.43, Ext.44, Ext.45 and Ext.46
were received by me on 04.04.2019 and those
were uploaded by me in the web portal of the
Election Commission of India on 04.04.2019."
Q. Can you show from the web portal of the
Election Commission of India that the affidavit
dated 03.04.2019 filed by the Respondent
Ext.43, Ext.44, Ext.45 and Ext.46 were uploaded
by you on 04.04.2019?
Ans. While uploading the affidavit dated
03.04.2019 on 04.04.2019, the system was
over-riding the earlier affidavit dated
02.04.2019 of the respondent uploaded on
02.04.2019.
Q. Have you intimated about the over-riding of
the earlier affidavit dated 02.04.2019 of the
Respondent uploaded on 02.04.2019 when you
uploaded the affidavit dated 03.04.2019 on
04.04.2019 to the District Election Officer, Chief
Electoral Officer, Odisha and to the Election
Commission of India?
261
Ans. Since it was a system based configuration,
I felt no necessity of intimating the same to the
District Election Officer, Chief Electoral Officer,
Odisha and to the Election Commission of India.
Q. Can you show from the web portals of the
Election Commission of India that you have
uploaded the affidavit in Form 26 of the
Respondent dated 02.04.2019 on 02.04.2019?
Ans. I cannot show just now.
Q. Whether in terms of the instruction imparted
in paragraph 5.20.3 of the Handbook for
Returning Officer marked as Ext.38/5, have you
given a note that the Respondent has filed
incomplete affidavit dated 02.04.2019 and he
has been issued notice to file fresh affidavit in
Ext.32/5 while uploading the same in the web
portals of the Election Commission of India?
Ans. I do not remember about the same now.
Q. Since you have received an incomplete
affidavit dated 02.04.2019 in Form 26 on
02.04.2019, how you mentioned in Ext.32/5 in
the current status as 'accepted'?
Ans. It was a system based configuration.
Q. While answering to a question put to you on
27.04.2023, you said that when you uploaded
the affidavit dated 03.04.2019 on 04.04.2019
262
(Ext.43, Ext.44, Ext.45 and Ext.46), the system
overrode the earlier affidavit dated 02.04.2019
of the Respondent uploaded on 02.04.2019.
What does it mean that 'the system overrode
the earlier affidavit? Whether the affidavit dated
02.04.2019 was completely removed from the
system or it can be traced out?
Ans. The subsequent affidavit would prevail over
the earlier affidavit and that is how I have used
the term that 'the system overrode the earlier
affidavit'. So far as the second question is
concerned, since it is a system generated
aspect, I am not able to answer the same.
Q. Did you try to verify whether a person
intending to verify the affidavit dated
02.04.2019 from the web portal, would be able
to verify the same or not?
Ans. I have not checked that aspect at that
point of time.
Q. Since in Clause 5.20.3 of Chapter-5 of the
Handbook for the Returning Officer marked as
Ext. 38, there is a provision that while uploading
the incomplete affidavit of a candidate on the
website, you are also to give a note that the
affidavit is incomplete and the candidate has
been issued notice, whether in this particular
case, you have followed that procedure?
263
Ans. Yes. I have uploaded the incomplete
affidavit of the respondent dated 02.04.2019. I
do not remember whether along with the
incomplete affidavit, I have uploaded the note
that the affidavit is incomplete one and the
candidate has been issued notice.
Q. Whether on verification of the hyperlink, can
you say whether you have uploaded the note
that the affidavit dated 02.04.2019 is incomplete
one and that you have given a note to the
Respondent and that notice has been issued to
him?
Ans. No I cannot do the same.
Q. Whether after 02.04.2019 till the election
process was over, did you try to verify whether
the affidavit dated 02.04.2019 filed by the
Respondent and uploaded by you was available
in the web portal of the Election Commission of
India?
Ans. I have not verified.
Q. Whether any person can verify the affidavit
dated 02.04.2019 filed by the respondent and
the declarations made therein which you stated
to have uploaded on 02.04.2019 in the web
portal of the Election Commission of India?
Ans. I cannot say.
264
Q. When you came to know that the system has
overrode the affidavit dated 02.04.2019, did you
take any step to correct the same and re-load
the affidavit dated 02.04.2019 so that a voter
can look into the same?
Ans. I have not done that.
"It is not a fact that I have not uploaded the
affidavit in Form 26 of the respondent dated
02.04.2019 in the web portal of the Election
Commission of India on 02.04.2019."
"The respondent himself came to me on
04.04.2019 and handed over the revised
affidavit in Form 26 dated 03.04.2019. It is a
fact that CCTV recording was made in the room
of the Returning Officer from the first day of
filing of the nomination paper till the scrutiny
was over on 05.04.2019. If the CCTV recording
is called for and verified, it will be found that the
Respondent had come to me on 04.04.2019 and
handed over the revised affidavit in Form 26. It
is not a fact that the Respondent did not come
to my office on 04.04.2019."
Q. Can you show any provision either from the
Representation of the People Act, 1951, the
Conduct of Elections Rules, 1961 and the
Handbook for Returning Officer i.e. Ext.38 which
permitted you as a Returning Officer to accept
265
xerox attested copies of the affidavits under
Ext.44, Ext.45 and Ext.46 along with the
nomination paper Ext.40, Ext.41 and Ext.42
respectively?
Ans. Even after verifying Representation of the
People Act, 1951, the Conduct of Elections
Rules, 1961 and the Handbook for Returning
Officer i.e. Ext.38, at present I am not getting
the provision, which permitted me as a
Returning Officer to accept xerox attested copies
of the affidavits under Ext.44, Ext.45 and Ext.46
along with the nomination paper Ext.40, Ext.41
and Ext.42 respectively.
"It is prescribed that a stamp paper worth of
Rs.10/- is to be used for an affidavit purpose as
per the State law. During my incumbency as
Sub-Collector, Cuttack Sadar, number of
persons have sworn affidavits before me using
stamp papers of Rs.10/-. I have never allowed
any person to swear an affidavit before me by
using plain paper. It is a fact that paragraph
5.16.1 of Chapter-V of Ext.38 indicates that the
duly sworn affidavits should be on stamp paper
of such denomination as prescribed under the
State law of the State concerned. Paragraph
5.16.1 of Chapter-5 of Ext.38 is marked as
Ext.38/6. It is a fact that the affidavits dated
02.04.2019 of the Respondent filed along with
the nomination papers Ext.39, Ext.40, Ext.41
266
and Ext.42 are in plain papers. Ext.39/1 (23
sheets) (earlier marked as Y/2) is the plain
paper affidavit filed along with Ext.39, Ext.40/1
(23 sheets) (earlier marked as Y/5) is the plain
paper affidavit filed along with Ext.40, Ext.41/1
(23 sheets) (earlier marked as Y/8) is the plain
paper affidavit filed along with Ext.41, Ext.42/1
(23 sheets) (earlier marked as Y/11) is the plain
paper affidavit filed along with Ext.42."
Q. It is put to you that the affidavits under
Ext.39/1, Ext.40/1, Ext.41/1 and Ext.42/1 were
not in consonance with the provision as
contained in paragraph 5.16.1 of Chapter-5 of
Ext.38?
Ans. I cannot say.
Witness volunteers- Since the affidavits under
Ext.39/1, Ext.40/1, Ext.41/1 and Ext.42/1 were
incomplete, instruction was given to the
Respondent to file revised affidavits complete in
all respects.
"As per the provision as contained in paragraphs
5.16.3 and 5.16.4 of Ext.38, as a Returning
Officer, I have to prepare a checklist in duplicate
and handover the same to the concerned
candidate or his proposer bringing to his notice
the requirement in the duly sworn affidavit. The
original of the checklist is kept with the
267
nomination paper and the duplicate of the same
is handed over to the concerned candidate or his
proposer. I have prepared this checklist dated
02.04.2019 marked as Ext.39/2 (one sheet),
which is available along with Ext.39. It is a fact
that in Ext. 39/2 I have not indicated that the
affidavit filed by the Respondent dated
02.04.2019 was in plain paper and that he was
instructed to file it in required stamp paper. I
have handed over duplicate copy of Ext.39/2 to
the Respondent. It is a fact that two sets of
checklists are available along with Ext.39, one
which has been marked as Ext.39/2 and the
other xerox copy is marked as Ext.39/3 (one
sheet) (with objection). Even though two sets of
checklists i.e. Ext.39/2 and Ext.39/3 are
available along with Ext.39, but I have handed
over a duplicate copy of checklist to the
Respondent on 02.04.2019, which was duly
acknowledged by the Respondent and the
signature of the Respondent is appearing on
Ext.39/2. From Ext.39/2, it appears that I have
prepared the same on 02.04.2019 at 11.45 a.m.
at Cuttack, which I have mentioned therein. As
per paragraph 5.16.4 of Ext.38, as a Returning
Officer, I am supposed to give notice to the
candidates if any column of the affidavit in Form
26 has been left blank or filled by just tick
mark/dash marking and in this case, I have
268
given notice to the Respondent in that respect in
the checklist marked as Ext.39/2."
"The Respondent had filed four sets of
nomination papers along with affidavit dated
02.04.2019 along with other documents on
02.04.2019 and I verified each of the
nomination paper so also the affidavit and
prepared the checklist separately with respect to
each set of nomination paper. After verifying the
nomination paper marked as Ext.39 along with
the affidavit marked as Ext.39/1 and other
accompanying documents, I prepared the
checklist marked as Ext.39/2. Thereafter, I
verified the nomination paper marked as Ext.40
along with the affidavit marked as Ext.40/1 and
other accompanying documents, I prepared this
checklist marked as Ext.40/2 (one sheet).
Thereafter, I verified the nomination paper
marked as Ext.41 along with the affidavit
marked as Ext.41/1 and other accompanying
documents, I prepared this checklist marked as
Ext.41/2(one sheet). Thereafter, I verified the
nomination paper marked as Ext.42 along with
the affidavit marked as Ext.42/1 and other
accompanying documents, I prepared this
checklist marked as Ext.42/2(one sheet)."
"It is a fact that in Ext.40/2, though I have put
the date as 02.04.2019 under my signature
above the writing 'signature of RO/ARO', but
269
against the date, time and place, which is
available below the 'signature of candidate', no
date, time and place has been mentioned."
"The portion 'date, time and place', which is
available below the 'signature of candidate' in
Ext.39/2 has been filled up, is not in my
handwriting and the same is marked as
Ext.39/4."
"The checklist Ext.39/2 has been filled up by a
team of officers, who were assisting me at the
relevant point of time and I have only put my
signature and the date above the writing
'signature of RO/ARO' after due verification. I
cannot say who has filled up the portion marked
as Ext.39/4. The handwritings appearing in the
check list Ext.39/2 are not mine. My team of
officers has filled it up under my supervision and
instruction."
"The checklists dated 02.04.2019, i.e. Ext.40/2,
Ext.41/2 and Ext.42/2 have been filled up by a
team of officers, who were assisting me at the
relevant point of time under my instruction and
supervision and I have only put my signature
and the date above the writing 'signature of
RO/ARO' after due verification. The date and
time and place which are appearing below the
'signature of candidate' in Ext.40/2 have not
been filled up and the same is marked as
270
Ext.40/3. I cannot say who has filled up date
and time and place which are appearing below
the 'signature of candidate' in Ext.41/2 and the
same is marked as Ext.41/3. I cannot say who
has filled up date and time and place which are
appearing below the 'signature of candidate' in
Ext.42/2 and the same is marked as Ext.42/3.
Different officers of my team have filled up the
handwritten portion of Ext.39/2, Ext.40/2,
Ext.41/2 and Ext.42/2 under my supervision and
instruction. I cannot recollect now as to who
were the officers of my team were then who
filled the handwritten portion of Ext.39/2,
Ext.40/2, Ext.41/2 and Ext.42/2 under my
supervision and instruction. I do not remember
who were the officers and staff of my team then
assisting me during the preparation of checklists
under Ext.39/2, Ext.40/2, Ext.41/2 and
Ext.42/2. It is a fact that in Ext.40/2, Ext.41/2
and Ext.42/2, I have not put a tick mark in
Col.(b) under the headings of 'the following
documents which have not been filed should be
filed as indicated below' as I have done in
Ext.39/2. It is a fact that in Ext.41/2 I have not
put any mark in Columns (a), (b) and (c) under
the headings of 'the following documents which
have not been filed should be filed as indicated
below'. Since in Sl.No.1 of Ext.41/2, it has been
indicated that the affidavit in Form 26 is not as
per the prescribed format and Col. Nos. (5), (6),
271
(7) and (8) not properly mentioned, there was
no necessity of again specifying the same by
filling up of Col.Nos. (a), (b) and (c) under the
headings of 'the following documents which have
not been filed should be filed as indicated
below'."
Q. Why in Ext.39/2, you have put a tick mark in
Co. (b) under the headings of 'the following
documents which have not been filed should be
filed as indicated below' and not in Ext.40/2,
Ext.41/2 and Ext.42/2?
Ans. I cannot assign any reason why it has been
done like that.
"The Respondent had filed four sets of
nomination papers along with four affidavits in
Form 26 apart from other required documents
and I have prepared four checklists after
verifying the same. It is a fact that after
submission of the revised affidavit in Form 26 by
the Respondent on 04.04.2019, I prepared a
checklist of documents in duplicate. The original
of the said checklist dated 04.04.2019 was kept
with the nomination paper and the duplicate was
handed over to the Respondent after taking his
signature. The original checklist dated
04.04.2019 is marked as Ext.47."
272
"(Witness volunteers)- In Ext.47, the serial
numbers of four nomination papers i.e. 02, 03,
04 and 05/LA/2019/RO have been mentioned in
the top by me. Again says, the same has been
filled up by the team of officers, who were
assisting me at the relevant point of time under
my instruction and supervision."
"The handwritten portion in Ext.47 has also been
filled up by the team of officers. I have put only
signature and date in Ext.47. The witness
volunteers - After due verification, I put my
signature and date in Ext.47. After due
verification of Ext.43, Ext.44, Ext.45 and Ext.46,
I instructed my team of officers to fill up
checklist Ext.47 since I found that all the
columns are filled up. Only Ext.43 was the
original one and Ext.44, Ext.45 and Ext.46 are
the xerox attested copies of Ext.43. I cannot say
who has filled up the date and time and place in
Ext.47 which are appearing below 'the signature
of candidate'. The relevant portion is marked as
Ext.47/1. I cannot say the name and designation
of the officer or the staff of my team who filled
up handwritten portion of Ext.47."
"On 02.04.2019 I personally verified the four
sets of nomination papers under Ext.39, Ext.40,
Ext.41 and Ext.42 along with the accompanying
documents and affidavits under Ext.39/1,
Ext.40/1, Ext.41/1 and Ext.42/1 one after
273
another. I cannot say how much time it took to
verify each set of nomination papers along with
accompanying documents and affidavit even
approximately. After verifying first set of
nomination paper along with accompanying
documents and affidavit, I prepared one check
list and then I proceeded to verify the 2nd set
and in the like manner 3rd set and 4th set."
"This is the downloaded and printed copy of
Ext.32/5 as per the order of this Court dated
03.05.2023 marked as Ext.32/7 and the relevant
portion where it is mentioned 'Affidavit
Uploaded: 2nd April 2019' is marked as Ext.32/8.
This is the downloaded and printed copy of
nomination paper Ext.39 as per the order of this
Court dated 03.05.2023 marked as Ext.39/5.
This is the downloaded and printed copy of the
affidavit Ext.43 as per the order of this Court
dated 03.05.2023 marked as Ext.43/1."
"This is the downloaded and printed copy of
Ext.33/5 as per the order of this Court dated
03.05.2023 marked as Ext.33/7 and the relevant
portion where it is mentioned 'Affidavit
Uploaded: 2nd April 2019' is marked as Ext.33/8.
This is the downloaded and printed copy of
nomination paper Ext.40 as per the order of this
Court dated 03.05.2023 marked as Ext.40/4.
This is the downloaded and printed copy of the
274
affidavit Ext.44 as per the order of this Court
dated 03.05.2023 marked as Ext.44/1."
"This is the downloaded and printed copy of
Ext.34/5 as per the order of this Court dated
03.05.2023 marked as Ext.34/7 and the relevant
portion where it is mentioned 'Affidavit
Uploaded: 2nd April 2019' is marked as Ext.34/8.
This is the downloaded and printed copy of
nomination paper Ext.41 as per the order of this
Court dated 03.05.2023 marked as Ext.41/4.
This is the downloaded and printed copy of the
affidavit Ext.45 as per the order of this Court
dated 03.05.2023 marked as Ext.45/1."
"This is the downloaded and printed copy of
Ext.35/5 as per the order of this Court dated
03.05.2023 marked as Ext.35/7 and the relevant
portion where it is mentioned 'Affidavit
Uploaded: 2nd April 2019' is marked as Ext.35/8.
This is the downloaded and printed copy of
nomination paper Ext.42 as per the order of this
Court dated 03.05.2023 marked as Ext.42/4.
This is the downloaded and printed copy of the
affidavit Ext.46 as per the order of this Court
dated 03.05.2023 marked as Ext.46/1."
"I cannot say whether any permission is
necessary for a voter to download and print out
the nomination paper, affidavit in Form 26
uploaded by the Returning Officer in the web
275
portal of Election Commission of India. No
permission of mine is necessary if anyone wants
to download and print out the nomination paper,
affidavit in Form 26 of the Respondent uploaded
by me in the web portal of the Election
Commission of India. I cannot say whether
permission of the District Election Officer, Chief
Electoral Officer, Odisha or Election Commission
of India is necessary for downloading and
printing out the nomination paper, affidavit in
Form 26 of the Respondent uploaded by me in
the web portal of the Election Commission of
India."
"It is not a fact that in violation of the provisions
contemplated under the Representation of the
People Act, 1951, the Conduct of Elections
Rules, 1961 and Handbook for Returning Officer
(Ext.38), I accepted Ext.39, Ext.40, Ext.41 and
Ext.42 and Ext.43, Ext.44, Ext.45 and Ext.46. It
is not a fact that I have not received the
affidavits of the respondent under Ext.39/1,
Ext.40/1, Ext.41/1 and Ext.42/1 on
02.04.2019."
"Ext.39 is the nomination paper filed by the
Respondent which I have numbered as
02/LA/2019 dated 02.04.2019 which was
received by me at 11.20 a.m. and it consists of
seventy three sheets apart from nomination
papers which includes other documents in
276
connection with the nomination of the
Respondent and it is in one bunch. Ext.39 i.e.
Form 2B upto Part-IV is in four sheets and apart
from it, Part-V of Form 2B which is my decision
accepting the nomination paper of the
Respondent is available and it is in one sheet
and marked as Ext.AW. In Ext.AW, I have taken
a decision that the nomination paper of the
Respondent Mohammed Moquim is valid in
accordance with section 36 of the
Representation of People Act, 1951 and I have
put my signature thereon with date as
05.04.2019 and the said portion is marked as
Ext.AW/1. In the first set of the nomination
papers filed by the Respondent numbered as
02/LA/2019, after Ext.AW, Ext.39/1 appears,
which is the affidavit in Form 26 dated
02.04.2019 of the Respondent and it consists of
twenty three sheets."
"After Ext.BK, in the same bunch, the original
'checklist of documents in connection with filing
of nomination' granted by me in favour of the
Respondent on 02.04.2019 with respect to
nomination Sl.No. 02 which has been received
by the Respondent on 02.04.2019 at 11.45 a.m.
at Cuttack is available, which is in one sheet and
the same has already been marked as Ext. 39/2.
I have mentioned in Ext.39/2 against its Sl.No.1
against the document 'affidavit in Form 26' that
277
'not as per the prescribed format
(column/Sl.No.5, 6, 7 & 8 not properly
mentioned)'. I have mentioned in Ext.39/2
against its Sl.No.2 against the document
'certified extract of electoral roll (when candidate
is an elector of a different constituency) as 'NA'.
I have mentioned in Ext.39/2 against its Sl.No.3
against the document 'Form A and B (applicable
in the case of candidates set up by political
parties)' as 'yes'. I have mentioned in Ext.39/2
against its Sl.No.4 against the document 'copy of
caste certificate (if the candidate claims to
belong to SC/ST)' as 'NA'. I have mentioned in
Ext.39/2 against its Sl.No.5 against the
document 'security deposit (whether made)' as
'yes'. I have mentioned in Ext.39/2 against its
Sl.No.6 against the document 'oath and
affirmations (whether taken)' as 'yes'. In
Ext.39/2 after Sl. Nos.1 to 6, there is a heading
'the following documents which have not been
filed should be filed as indicated below', against
its item (a) the gaps have not been filled up by
me and I have put "dash" mark, against its item
(b), I have put a 'tick' mark and thereby the
candidate has been directed to submit the
revised affidavit with columns duly filled up
before the commencement of scrutiny of
nominations, failing which the nomination paper
will be liable to be rejected, against its item (c),
278
I have not filled up the gaps and I have put
"dash" marks."
To Court:
Q. According to you, as per Ext.39/2, there was
only one defect in the nomination paper bearing
Sl.No.02 filed by the Respondent and that was
the incomplete affidavit in Form 26, which was
not in prescribed format?
Ans. Yes.
"Ext.39/2 was prepared in original as well as in
duplicate by me. The original checklist was kept
in the bunch of first set of nomination paper of
the Respondent bearing Sl.No.02/LA/2019. The
duplicate of the checklist was handed over to the
Respondent and he received the same on
02.04.2019 at 11.45 a.m. by putting his
signature, which is one sheet and the same is
marked as Ext.BL (which was earlier marked as
X/2). My signature, date and seal appearing on
Ext.BL is marked as Ext.BL/1 and the signature,
date, time and place of the Respondent on
Ext.BL is marked as Ext.BL/2. The format of the
checklist has been prescribed by the Election
Commission of India in Ext.38 at pages 76 and
77. Being a Returning Officer, I cannot alter or
modify the format of checklist and I have only to
fill it up after receiving the nominations from
279
different candidates and after preliminary
examination of the same."
To Court:
Q. From whom you received Ext.43 which is
dated 03.04.2019 and when?
Ans. From the Respondent and that too on
04.04.2019.
Q. How did Ext.43 came to the bunch of the
nomination paper bearing Sl.No.02/LA/2019?
Ans. After receiving Ext.43 from the Respondent
on 04.04.2019, I put it in the bunch of the
nomination paper bearing Sl.No.02/LA/2019.
Q. Please see Ext.43 and answer as to when and
from whom the Respondent purchased the
stamp paper?
Ans. The document in Ext.43 (stamp paper)
indicates that it was purchased on 30.03.2019
from one Prasanta Kumar Dash, Stamp Vendor.
Q. Please look into Ext.43 and answer whether it
contains at what time on 03.04.2019, the
affidavit was sworn before the Notary Public?
Ans. After verifying Ext.43, the witness answers
'no'.
280
"After Ext.43 in the same bunch, there is original
'checklist of documents in connection with filing
of nominations' granted by me to the
Respondent with respect to nomination papers
Sl.Nos. 02, 03, 04, 05/LA/2019/RO which is one
sheet and the same is already marked as Ext.47.
After preparation of Ext.47 in original and in
duplicate, I handed over the duplicate copy to
the Respondent on 04.04.2019 which has been
handed over by me and received by the
Respondent on 04.04.2019 at 12.20 p.m. at
Cuttack. The duplicate checklist of documents in
connection with filing of nominations' granted by
me to the Respondent with respect to
nomination papers Sl.Nos.02, 03, 04,
05/LA/2019/RO, which is one sheet, is marked
as Ext.BP (earlier marked as X/7). This is my
signature, date and seal appearing on Ext.BP,
which is marked as Ext. BP/1. The signature,
date and time of the Respondent appearing on
Ext.BP is marked as Ext. BP/2. I have mentioned
in Ext.47 as well as in Ext.BP that the affidavit in
Form 26 with all the columns filled up as 'yes'
and the affidavit has been sworn before Notary
in Sl.No.1 and since documents under
Sl.Nos.2,3,4,5 and 6 have been earlier complied
with on 02.04.2019, I have mentioned 'NA'.
Ext.43 i.e. the revised affidavit in Form 26 was
filed by the Respondent in time. After Ext.43 in
the same bunch, the forwarding letter of the
281
Respondent dated 03.04.2019 enclosing therein
the revised affidavit is there which is in one
sheet and the same is marked as Ext.BQ (with
objection). The signature of the Respondent in
Ext.BQ is marked as Ext.BQ/1. The Respondent
while filing Ext.43 also filed three sets of photo
copy of Ext.43 duly attested by Notary Public to
be true copy, which I kept in nomination paper
Sl.No.03/LA/2019, 04/LA/2019 and 05/LA/2019
respectively and those attested photocopy of the
revised affidavits have already been marked as
Ext.44, Ext.45 and Ext.46 respectively."
"After submission of revised affidavit in Ext.43
and the forwarding letter in Ext.BQ, the total
sheet of first set of nomination paper bearing
Sl.No.02/LA/2019 became 73 (seventy three)
sheets and i.e. Ext.39 (four sheets), Ext.AW
(one sheet), Ext.39/1 (23 sheets), Ext.AX (one
sheet), Ext.AY (one sheet), Ext.AZ (one sheet),
Ext.BA (one sheet), Ext.BB (one sheet), Ext.BC
(one sheet), Ext.BD (one sheet), Ext. BE(one
sheet), Ext.BF (one sheet), Ext.BG (one sheet),
Ext.BH(one sheet), Ext.BJ (one sheet), Ext.BK
(one sheet), Ext.39/2 (one sheet), Ext.BM (one
sheet), Ext.39/3 (one sheet), Ext.43 (twenty
seven sheets), Ext.47(one sheet) and Ext.BQ
(one sheet). Ext.39/2, Ext.39/3 and Ext.47
(which are total three sheets) have been
prepared by me whereas the rest of 70 sheets
282
out of the total 73 sheets of the bunch available
in the first set of nomination bearing Sl.No.
02/LA/2019 have been submitted by the
Respondent."
"Ext.40 is the nomination paper filed by the
Respondent which I have numbered as
03/LA/2019 dated 02.04.2019 which was
received by me at 11.20 a.m. and it consists of
total sixty-eight sheets and apart from
nomination paper in Form 2B (upto Part-IV),
which is the 2nd set of nomination papers of the
respondent, includes other documents in
connection with his nomination and it is in one
bunch. Ext.40 i.e. Form 2B upto Part-IV is in
four sheets and apart from it, Part-V of Form 2B
which is my decision accepting the nomination
paper of the Respondent is there and it is in one
sheet and marked as Ext.BR. In Ext.BR, I have
taken a decision that the nomination paper of
the Respondent Mohammed Moquim is valid in
accordance with section 36 of the
Representation of the People Act, 1951 and I
have put my signature thereon with date as
05.04.2019 and the said portion on Ext.BR is
marked as Ext.BR/1. In the 2nd set of the
nomination papers filed by the Respondent
numbered as 03/LA/2019, after Ext.BR, in that
bunch, Ext.40/1 is there, which is the affidavit in
283
Form 26 dated 02.04.2019 of the Respondent
and it consists of twenty-three sheets."
"After Ext.CC, in the same bunch, the original
'checklist of documents in connection with filing
of nomination' granted by me in favour of the
Respondent on 02.04.2019 with respect to
nomination Sl. No. 03/LA/2019/RO is there
which has been received by the Respondent,
which is in one sheet and the same has already
been marked as Ext. 40/2. I have mentioned in
Ext.40/2 against its Sl.No.1 against the
document 'affidavit in Form 26' that 'not as per
the prescribed format (Col. No. 5, 6, 7 & 8 not
properly mentioned)'. I have mentioned in
Ext.40/2 against its Sl.No.2 against the
document 'certified extract of electoral roll
(when candidate is an elector of a different
constituency)' as 'NA' as after verification of
original final voter list for the year 2019, I was
satisfied that the Respondent is an elector of 90-
Barabati Cuttack Assembly Constituency. I have
mentioned in Ext.40/2 against its Sl.No.3
against the document 'Form A and B (applicable
in the case of candidates set up by political
parties)' as 'Yes'. I have mentioned in Ext.40/2
against its Sl.No.4 against the document 'copy of
caste certificate (if the candidate claims to
belong to SC/ST)' as 'NA'. I have mentioned in
Ext.40/2 against its Sl.No.5 against the
284
document 'security deposit (whether made)' as
'Yes'. I have mentioned in Ext.40/2 against its
Sl.No.6 against the document 'oath and
affirmations (whether taken)' as 'Yes'. In
Ext.40/2, after its Sl. Nos. 1 to 6, there is a
heading 'the following documents which have
not been filed should be filed as indicated
below', against its item (a) the gaps have not
been filled up by me and I have put "dash"
marks on the gaps, against its item (b), the
candidate has been directed to the effect that,
'Above-mentioned columns in the Affidavit in
Form 26 have been left blank. You must submit
a revised Affidavit with columns duly filled up
before the commencement of scrutiny of
nominations, failing which the nomination paper
will be liable to be rejected', against its item (c),
I have not filled up the gaps and I have put
"dash" marks on the gaps. Ext.40/2 was
prepared in original as well as in duplicate by
me. The original checklist was kept in the bunch
of 2nd set of nomination papers of the
Respondent bearing Sl.No.03/LA/2019. The
duplicate of the checklist was handed over to the
Respondent and he received the same by putting
his signature, which is in one sheet and the
same is marked as Ext.CD (which was earlier
marked as X/3). The portion containing my
signature, date and seal appearing on Ext.CD is
marked as Ext.CD/1 and the signature of the
285
Respondent on Ext.CD is marked as Ext.CD/2.
The format of the checklist has been prescribed
by the Election Commission of India in Ext.38 at
its pages 76 and 77. Being a Returning Officer, I
cannot alter or modify the format of checklist
and I have only to fill it up after receiving the
nominations from different candidates and after
preliminary examination of the same."
"After Ext.CF, in the same bunch, the photocopy
of the revised affidavit in Form 26 dated
03.04.2019 of the Respondent is there which is
attested by the notary public to be true copy,
which is in 27 sheets, and the same has already
been marked as Ext.44. Ext.44 was received by
me from the Respondent on 04.04.2019 well
within time and after receiving the same, I have
kept it along with the 2nd set of nomination
papers of the Respondent bearing Sl. No.
03/LA/2019."
"The 2nd set of nomination papers of the
Respondent bearing Sl.No.03/LA/2019 are 68
(sixty-eight) sheets in total i.e. Ext.40 (four
sheets), Ext.BR (one sheet), Ext.40/1 (23
sheets), Ext.BS (one sheet), Ext.BT (one sheet),
Ext.BU (one sheet), Ext.BV (one sheet), Ext.BW
(one sheet), Ext.BX (one sheet), Ext.BY (one
sheet), Ext. BZ (one sheet), Ext.CA (one sheet),
Ext.CB (one sheet), Ext.CC (one sheet),
Ext.40/2 (one sheet), Ext.CF (one sheet) and
286
Ext.44 (twenty-seven sheets). Ext.40/2 (one
sheet) has been prepared by me whereas the
rest of 67 sheets out of the total 68 sheets of
the bunch available in the 2nd set of nomination
bearing Sl. No. 03/LA/2019 have been submitted
by and on behalf of the Respondent."
"Ext.41 is the nomination paper filed by the
Respondent which I have numbered as
04/LA/2019 dated 02.04.2019 which was
received by me at 11.20 a.m. and it consists of
total sixty-eight sheets and apart from
nomination paper in Form 2B (upto Part-IV)
which is the 3rd set of nomination papers of the
Respondent, includes other documents in
connection with his nomination and it is in one
bunch. Ext.41 i.e. Form 2B upto Part-IV is in
four sheets and apart from it, Part-V of Form 2B
which is my decision accepting the nomination
paper of the Respondent is there and it is in one
sheet and marked as Ext.CG. In Ext.CG, I have
taken a decision that the nomination paper of
the Respondent Mohammed Moquim is valid in
accordance with section 36 of the
Representation of the People Act, 1951 and I
have put my signature and seal thereon with
date as 05.04.2019 and the said portion on
Ext.CG is marked as Ext.CG/1. In the 3rd set of
the nomination papers filed by the Respondent
numbered as 04/LA/2019, after Ext.CG, in that
287
bunch, Ext.41/1 is there, which is the affidavit in
Form 26 dated 02.04.2019 of the Respondent
and it consists of twenty-three sheets."
"After Ext.CT, in the same bunch, the original
'checklist of documents in connection with filing
of nomination' granted by me in favour of the
Respondent on 02.04.2019 with respect to
nomination Sl. No. 04/LA/2019/RO is there
which has been received by the RESPONDENT on
02.04.2019 at 11.45 a.m. at Cuttack, which is in
one sheet and the same has already been
marked as Ext. 41/2. I have mentioned in
Ext.41/2 against its Sl.No.1 against the
document 'affidavit in Form 26' that 'not as per
the prescribed format (Column Nos.5, 6, 7 & 8
not properly mentioned)'. I have mentioned in
Ext.41/2 against its Sl.No.2 against the
document 'certified extract of electoral roll
(when candidate is an elector of a different
constituency)' as 'NA' as the Respondent is an
elector of 90-Barabati Cuttack Assembly
Constituency. I have mentioned in Ext.41/2
against its Sl.No.3 against the document 'Form A
and B (applicable in the case of candidates set
up by political parties)' as 'Yes'. I have
mentioned in Ext.41/2 against its Sl.No.4
against the document 'copy of caste certificates
(if the candidate claims to belong to SC/ST)' as
'NA'. I have mentioned in Ext.41/2 against its
288
Sl.No.5 against the document 'security deposit
(whether made)' as 'Yes'. I have mentioned in
Ext.41/2 against its Sl.No.6 against the
document 'oath and affirmations (whether
taken)' as 'Yes'. In Ext.41/2, after its Sl. Nos. 1
to 6, there is a heading 'the following documents
which have not been filed should be filed as
indicated below', against its item (a) the gaps
have not been filled up by me, against its item
(b), the candidate has been directed to the
effect that, 'Above-mentioned columns in the
Affidavit in Form 26 have been left blank. You
must submit a revised Affidavit with columns
duly filled up before the commencement of
scrutiny of nominations, failing which the
nomination paper will be liable to be rejected',
against its item (c), I have not filled up the
gaps. Ext.41/2 was prepared in original as well
as in duplicate by me. The original checklist was
kept in the bunch of 3rd set of nomination papers
of the Respondent bearing Sl.No.04/LA/2019.
The duplicate of the checklist was handed over
to the Respondent and he received the same by
putting his signature on 02.04.2019 at 11.45
a.m. at Cuttack, which is in one sheet and the
same is marked as Ext.CU (which was earlier
marked as X/4). The portion containing my
signature, date and seal appearing on Ext.CU is
marked as Ext.CU/1 and the signature of the
Respondent with date, time and place on Ext.CU
289
is marked as Ext.CU/2. The format of the
checklist has been prescribed by the Election
Commission of India in Ext.38 at its pages 76
and 77. Being a Returning Officer, I cannot alter
or modify the format of checklist and I have only
to fill it up after receiving the nominations from
different candidates and after preliminary
examination of the same."
"After Ext.CV, in the same bunch, the photocopy
of the revised affidavit in Form 26 dated
03.04.2019 of the Respondent is there which is
attested by the notary public to be true copy,
which is in 27 sheets, and the same has already
been marked as Ext.45. Ext.45 was received by
me from the Respondent on 04.04.2019 well
within time and after receiving the same I have
kept it along with the 3rd set of nomination
papers of the Respondent bearing Sl. No.
04/LA/2019."
"The 3rd set of nomination papers of the
Respondent bearing Sl.No.04/LA/2019 are 68
(sixty-eight) sheets in total i.e. Ext.41 (four
sheets), Ext.CG (one sheet), Ext.41/1 (23
sheets), Ext.CH (one sheet), Ext.CJ (one sheet),
Ext.CK (one sheet), Ext.CL (one sheet), Ext.CM
(one sheet), Ext.CN (one sheet), Ext.CP (one
sheet), Ext. CQ (one sheet), Ext.CR (one sheet),
Ext.CS (one sheet), Ext.CT (one sheet),
Ext.41/2 (one sheet), Ext.CV (one sheet) and
290
Ext.45 (twenty-seven sheets). Ext.41/2 (one
sheet) has been prepared by me whereas the
rest of 67 sheets out of the total 68 sheets of
the bunch available in the 3rd set of nomination
bearing Sl. No. 04/LA/2019 have been submitted
by the Respondent."
"Ext.42 is the nomination paper filed by the
Respondent which I have numbered as
05/LA/2019 dated 02.04.2019 which was
received by me at 11.20 a.m. and it consists of
total sixty-nine sheets and apart from
nomination paper in Form 2B (up to Part-IV)
which is the 4th set of nomination papers of the
Respondent, includes other documents in
connection with his nomination and it is in one
bunch. Ext.42 i.e. Form 2B up to Part-IV is in
four sheets and apart from it, Part-V of Form 2B
which is my decision accepting the nomination
paper of the Respondent is there and it is in one
sheet and marked as Ext.CX. In Ext.CX, I have
taken a decision that the nomination paper of
the Respondent Mohammed Moquim is valid in
accordance with section 36 of the
Representation of the People Act, 1951 and I
have put my signature and seal thereon with
date as 05.04.2019 and the said portion on
Ext.CX is marked as Ext.CX/1. In the 4th set of
the nomination papers filed by the Respondent
numbered as 05/LA/2019, after Ext.CX, in that
291
bunch, Part-VI of Form-2B is there which is
'receipt for nomination paper and notice of
scrutiny' granted by me on 02.04.2019 in favour
of the Respondent Mohammed Moquim with
respect to nomination paper Sl.No.05/LA/19
which is in one sheet and the same is marked as
Ext.CY. My signature, date and seal appearing
on Ext. CY is marked as Ext.CY/1. After Ext.CY,
in the same bunch, Ext.42/1 is there, which is
the affidavit in Form 26 dated 02.04.2019 of the
Respondent and it consists of twenty-three
sheets."
"After Ext.DK, in the same bunch, the original
'checklist of documents in connection with filing
of nomination' granted by me in favour of the
Respondent on 02.04.2019 with respect to
nomination Sl. No.05/LA/2019/RO is there which
has been received by the Respondent on
02.04.2019 at 11.45 a.m. at Cuttack, which is in
one sheet and the same has already been
marked as Ext. 42/2. I have mentioned in
Ext.42/2 against its Sl.No.1 against the
document 'affidavit in Form 26' that 'not as per
the prescribed format (Column No. 5, 6, 7 & 8)
not properly mentioned'. I have mentioned in
Ext.42/2 against its Sl.No.2 against the
document 'certified extract of electoral roll
(when candidate is an elector of a different
constituency)' as 'NA'. I have mentioned in
292
Ext.42/2 against its Sl.No.3 against the
document 'Form A and B (applicable in the case
of candidates set up by political parties)' as
'Yes'. I have mentioned in Ext.42/2 against its
Sl.No.4 against the document 'copy of caste
certificates (if the candidate claims to belong to
SC/ST)' as 'NA'. I have mentioned in Ext.42/2
against its Sl.No.5 against the document
'security deposit (whether made)' as 'Yes'. I
have mentioned in Ext.42/2 against its Sl.No.6
against the document 'oath and affirmations
(whether taken)' as 'Yes'. In Ext.42/2, after its
Sl. Nos. 1 to 6, there is a heading 'the following
documents which have not been filed should be
filed as indicated below', against its item (a) the
gaps have not been filled up by me and I have
put 'dash' marks on the gaps, against its item
(b), the candidate has been directed to the
effect that, 'Above-mentioned columns in the
Affidavit in Form 26 have been left blank. You
must submit a revised Affidavit with columns
duly filled up before the commencement of
scrutiny of nominations, failing which the
nomination paper will be liable to be rejected',
against its item (c), I have not filled up the gaps
and I have put 'dash' marks on the gaps.
Ext.42/2 was prepared in original as well as in
duplicate by me. The original checklist was kept
in the bunch of 4th set of nomination papers of
the respondent bearing Sl.No.05/LA/2019. The
293
duplicate of the checklist was handed over to the
Respondent and he received the same by putting
his signature on 02.04.2019 at 11.45 a.m. at
Cuttack, which is in one sheet and the same is
marked as Ext.DL (which was earlier marked as
X/5). The portion containing my signature, date
and seal appearing on Ext.DL is marked as
Ext.DL/1 and the signature of the Respondent
with date, time and place on Ext.DL is marked
as Ext.DL/2. The format of the checklist has
been prescribed by the Election Commission of
India in Ext.38 at its pages 76 and 77. Being a
Returning Officer, I cannot alter or modify the
format of checklist and I have only to fill it up
after receiving the nominations from different
candidates and after preliminary examination of
the same."
"After Ext.DM, in the same bunch, the
photocopy of the revised affidavit in Form 26
dated 03.04.2019 of the Respondent is there
which is attested by the notary public to be true
copy, which is in 27 sheets, and the same has
already been marked as Ext.46. Ext.46 was
received by me from the Respondent on
04.04.2019 well within time and after receiving
the same I have kept it along with the 4th set of
nomination papers of the Respondent bearing Sl.
No. 05/LA/2019."
294
"The 4th set of nomination papers of the
Respondent bearing Sl.No.05/LA/2019 are 69
(sixty-nine) sheets in total i.e. Ext.42 (four
sheets), Ext.CX (one sheet), Ext.CY (one sheet),
Ext.42/1 (23 sheets), Ext.CZ (one sheet),
Ext.DA (one sheet), Ext.DB (one sheet), Ext.DC
(one sheet), Ext.DD (one sheet), Ext.DE (one
sheet), Ext.DF (one sheet), Ext. DG (one sheet),
Ext.DH (one sheet), Ext.DJ (one sheet), Ext.DK
(one sheet), Ext.42/2 (one sheet), Ext.DM (one
sheet) and Ext.46 (twenty-seven sheets).
Ext.42/2 (one sheet) and Ext. DM (one sheet)
have been prepared by me whereas the rest of
67 sheets out of the total 69 sheets of the bunch
available in the 4th set of nomination papers
bearing Sl. No. 05/LA/2019 have been submitted
by the Respondent."
"Ext.43, Ext.44, Ext.45 and Ext.46, which are
the affidavits in Form-26 dated 03.04.2019 of
the Respondent, have been filed by Respondent
Mohammed Moquim on 04.04.2019 well within
time in compliance with my instruction as well as
instruction of the Election Commission of India
given under Ext.39/2, Ext.40/2, Ext.41/2 and
Ext.42/2 i.e. checklists dated 02.04.2019. After
receipt of Ext.43, Ext.44, Ext.45 and Ext.46,
which are affidavits in Form-26 dated
03.04.2019 of the Respondent on 04.04.2019, I
granted 'checklist of documents in connection
295
with filing of nomination' with respect to
nomination Sl. Nos. 02, 03, 04, 05/LA/2019 to
the Respondent vide Ext.47 and Ext.BP
indicating the receipt of the revised affidavit in
Form-26. After receipt of Ext.43, Ext.44, Ext.45
and Ext.46, which are affidavits in Form-26
dated 03.04.2019 of the Respondent on
04.04.2019 and after granting checklist to that
effect, I kept Ext.43, Ext.44, Ext.45 and Ext.46
in the bunch of 1st set, 2nd set, 3rd set and 4th
set of nomination papers of the Respondent
respectively. I also kept Ext.47 i.e. checklist
dated 04.04.2019 in the bunch of 1st set of
nomination papers of the Respondent."
"If any candidate fails to file any required
document along with his nomination papers, on
the date of its presentation, the returning officer
after preliminary examination of that nomination
paper shall intimate the same to that candidate
in the checklist further directing the candidate in
the checklist to submit the required document(s)
within the stipulated time. When that candidate
submits the required document(s) within the
stipulated time as mentioned in the checklist,
the returning officer has to keep the said
document(s) along with the bunch of nomination
papers of the candidate filed earlier and during
scrutiny of nominations, the returning officer has
to take the entire bunch of that nomination set
296
for scrutiny and for making his decision
accepting or rejecting that set of nomination of
the candidate."
"Ext.E is the 1st set of nomination papers filed
by the Election Petitioner which I have
numbered as Sl.No. 06/LA/2019 dated
02.04.2019 which was received by me at 12.20
p.m. and it consists of total forty-eight sheets in
one bunch."
"This is the original 'checklist of documents in
connection with filing of nomination' prepared
and granted by me in favour of the Election
Petitioner on 02.04.2019 with respect to his
nomination bearing Sl. No. 06/LA/2019 which
has been received by the Election Petitioner on
02.04.2019 at Cuttack, which is in one sheet
and the same has already been marked as
Ext.U. I have mentioned in Ext.U against its
Sl.No.1 against the document 'affidavit in Form
26' as 'Yes...Yes, Notary Public'. I have
mentioned in Ext.U against its Sl.No.2 against
the document 'certified extract of electoral roll
(when candidate is an elector of a different
constituency) as 'NA' as the Election Petitioner is
an elector of 90-Barabati Cuttack Assembly
Constituency. I have mentioned in Ext.U against
its Sl.No.3 against the document 'Form A and B
(applicable in the case of candidates set up by
political parties)' as 'Yes'. I have mentioned in
297
Ext.U against its Sl.No.4 against the document
'copy of caste certificate (if the candidate claims
to belong to SC/ST)' as 'NA'. I have mentioned
in Ext.U against its Sl.No.5 against the
document 'security deposit (whether made)' as
'Yes'. I have mentioned in Ext.U against its
Sl.No.6 against the document 'oath and
affirmations (whether taken)' as 'Yes'. In Ext.U
after Sl. Nos.1 to 6, there is a heading 'the
following documents which have not been filed
should be filed as indicated below', against its
item (a) the gaps have not been filled up by me
and I have put 'dash' marks on the gaps, against
its item (b), the candidate has been directed to
the effect that, 'Above-mentioned columns in the
Affidavit in Form 26 have been left blank. You
must submit a revised Affidavit with columns
duly filled up before the commencement of
scrutiny of nominations, failing which the
nomination paper will be liable to be rejected',
but the said direction under item (b) is not
applicable to the Election Petitioner as he had
filed his affidavit in Form 26 (Ext.E/1) with all
columns filled up and duly notarized as has been
mentioned against Sl. No.1 of the checklist
(Ext.U), against its item (c) the gaps have not
been filled up by me and I have put "dash"
marks on the gaps. The endorsements made by
me in Ext.U reveal that the nomination papers
filed by the Election Petitioner along with the
298
accompanying documents were in order and no
document was wanting."
"Ext.U was prepared in original as well as in
duplicate by me. The original checklist (Ext.U)
which is required to be kept in the bunch of first
set of nomination papers of the Election
Petitioner bearing Sl.No.06/LA/2019 having been
produced by the District Election Officer, Cuttack
later pursuant to the order of this Court be kept
along with the bunch of first set of nomination
papers of the Election Petitioner bearing
Sl.No.06/LA/2019. The duplicate of the checklist
was handed over to the Election Petitioner and
he received the same on 02.04.2019 at Cuttack
by putting his signature. The format of the
checklist has been prescribed by the Election
Commission of India in Ext.38 at pages 76 and
77. Being a Returning Officer, I cannot alter or
modify the format of checklist and I have only to
fill it up after receiving the nominations from
different candidates and after preliminary
examination of the same."
"After tagging the Ext.U with the bunch of 1st
set of nomination papers of the Election
Petitioner bearing Sl. No. 06/LA/2019 (Ext.E),
the total sheets of the 1st set of nomination
papers of the Election Petitioner bearing Sl. No.
06/LA/2019 now comes to 49 (forty-nine)
sheets."
299
"This is the nomination paper of the candidate,
namely, Priyadarshan Pavel is marked as Ext.DP.
Affidavit in Form 26 dated 29.03.2019 is marked
as Ext.DP/1, checklist of documents is marked
as Ext.DP/2, revised affidavit as Ext.DP/3,
checklist of revised affidavit as Ext.DP/4 and
decision of the Returning Officer as Ext.DP/5.
The nomination has been accepted as valid as
there is no substantial defect."
"Photocopies of nomination papers filed by each
candidate along with photocopy of the affidavit
in Form 26 accompanying the nomination should
be displayed on my office notice board on the
same day on which the nomination has been
filed as per Clause 5.20.1 of Ext.38 at page 88. I
have followed this instruction meticulously."
To Court
Q. Whether in the case of the Respondent, you
as a Returning Officer displayed in your office
notice board the entire bunch of nomination
papers filed by the Respondent in his four sets of
nomination papers or you only displayed the
Form 2B and affidavits in Form 26?
Ans. I displayed the photocopies of the entire
bunch of nomination papers filed by the
Respondent in his four sets of nomination papers
in my office notice board.
300
If anyone furnishes any information
contradicting the statements in the nomination
Form 2B or the affidavit in Form 26 by means of
a duly sworn affidavit, copies of such papers
were also required to be displayed by me on my
office notice board and I have meticulously
followed it.
Q. Whether either the Election Petitioner or any
person on his behalf or anyone had furnished
any such information contradicting the
statements in the nomination papers in Form 2B
or affidavits in Form 26 filed by the Respondent
vide Ext.39, Ext.40, Ext.41 and Ext.42 i.e. four
sets of nomination papers in Form 2B and
Ext.39/1, Ext.40/1, Ext.41/1 and Ext.42/1 i.e.
affidavits in Form 26 dated 02.04.2019 as well
as Ext.43, Ext.44, Ext.45 and Ext.46 i.e.
affidavits in Form 26 dated 03.04.2019 by
means of a duly sworn affidavit before you?
Ans. No.
"If anyone asks for photocopy of the nomination
papers in Form 2B and the affidavits in Form 26
filed by any candidate, as per the provision of
Clause 5.20.1 of Ext.38 (pages 88 and 89), I, as
the Returning Officer, am required to make the
same available to him/her free cost. I have also
meticulously followed this provision."
301
"As a Returning Officer, I am required to
handover photocopies of the nomination papers
in Form 2B and its accompanying documents
including the affidavits in Form 26 filed by each
candidates to the media persons for wide
dissemination of the information contained
therein as per the provision of Clause 5.20.1 of
Ext.38 (page 89) and I have meticulously
followed this provision."
"As per Clause 5.20.2 of Ext.38 (page 89), as
the Returning Officer, I am required to furnish
the photocopies of the affidavits in Form 26 filed
by the candidates to the District Election Officer
at the earliest who will consolidate all such
affidavits in his district and make available of the
same to any person or persons desirous of
obtaining the same on payment of nominal
copying charges and I have meticulously
followed this provision."
"As per Clause 5.20.2 of Ext.38 (page 89), as
the Returning Officer, I am required to upload
both the nominations in Form 2B as well as
affidavits in Form 26 filed by the respective
candidates in the website of Election
Commission of India soon after the candidates
file the same which can be viewed by general
public and I have meticulously followed this
provision and uploaded the nomination papers
in Form 2B as well as the affidavits in Form 26
302
dated 02.04.2019 of the Respondent on the date
when he presented the same. I have also
uploaded the affidavits in Form 26 dated
03.04.2019 of the Respondent filed on
04.04.2019 on the same day i.e. 04.04.2019 in
the official website of the Election Commission of
India."
"While uploading the affidavits in Form 26 dated
03.04.2019 on 04.04.2019 filed by the
Respondent, the later affidavit i.e. the affidavits
in Form 26 dated 03.04.2019 overrode the
earlier affidavits in Form 26 dated 02.04.2019
filed by the Respondent."
"The earlier affidavits in Form 26 dated
02.04.2019 of the Respondent was incomplete
and the same was irrelevant for the purpose of
giving complete and correct information to the
electors and as such, the same was required to
be replaced. The later revised affidavits in Form
26 dated 03.04.2019 filed by the Respondent on
04.04.2019 is available in the website of Election
Commission of India, which is relevant for the
purpose of giving complete and correct
information to the electors."
"I have strictly followed the provisions under
Clause 5.19 and 5.20 of Ext.38 (pages 88 & 89)
with respect to nominations in Form 2B and
affidavits in Form 26 filed by all the candidates
303
including the Respondent Mohammed Moquim in
the election in question."
"Before the commencement of scrutiny of
nominations i.e. on 05.04.2019 at 11.00 a.m.,
the nomination papers in Form 2B i.e. Ext.39,
Ext.40, Ext.41 and Ext.42 and the affidavits in
Form 26 dated 03.04.2019 i.e. Ext.43, Ext.44,
Ext.45 and Ext.46 filed by the Respondent were
very much available on my office notice board,
with the media persons, in the office of the
District Election Officer, Cuttack and in the
official website of the Election Commission of
India for view by the general public."
"In spite of availability of the nomination papers
and affidavits of the respondent to the general
public in the aforesaid manner as stated by me
in the previous sub-paragraph, nobody including
the election petitioner or his agents or any of his
supporters raised any objection before me to the
nomination papers and affidavits filed by the
respondent before or during scrutiny of
nominations."
"The nomination papers in Form 2B and the
affidavit in Form 26 filed by the respective
candidates in the election in question which were
uploaded by me in the official website of Chief
Electoral Officer, Odisha and Election
Commission of India were available in the web
304
portals http://www.ceoorissa.nic.in/main.html,
https://affidavit.eci.gov.in/candidate-affidavit
and
https://suvidha.eci.gov.in/uploads/acaffidavit.
These web portals are available under Ext.W
which is I.A. No.24 of 2020 filed by the Election
Petitioner, which is an application to pass
appropriate order directing to preserve all the
nomination papers along with the affidavits filed
by the Respondent. In the prayer portion under
Ext.W, four URL numbers have been given. Each
URL number as mentioned in the prayer portion
of Ext.W indicates the date of uploading of
affidavits in Form 26 dated 03.04.2019 of the
respondent on 04.04.2019."
"The first URL number available in the prayer
portion of Ext.W clearly demonstrates that the
affidavit in Form 26 dated 03.04.2019 (Ext.43)
of the Respondent available with his first set of
nomination papers for the year 2019, for
Assembly Constituency for the State of Odisha
(S18) has been uploaded by me in the year
2019 in the month of April (04) on the date (04)
i.e. 04.04.2019 vide uploading number
094823.pdf which would be evident from the
same URL number and uploading number
available in Ext.W/8 at its top, which is the first
page of the affidavit in Form 26 dated
03.04.2019 (Ext.43) of the respondent."
305
"The second URL number available in the prayer
portion of Ext.W clearly demonstrates that the
affidavit in Form 26 dated 03.04.2019 (Ext.44)
of the Respondent available with his second set
of nomination papers for the year 2019, for
Assembly Constituency for the State of Odisha
(S18) has been uploaded by me in the year
2019 in the month of April (04) on the date (04)
i.e. 04.04.2019 vide uploading number
094946.pdf which would be evident from the
same URL number and uploading number
available in Ext.W/6 at its top, which is the first
page of the photocopy of the affidavit in Form 26
dated 03.04.2019 of the Respondent (Ext.44)
attested to be the true copy."
"The third URL number available in the prayer
portion of Ext.W clearly demonstrates that the
affidavit in Form 26 dated 03.04.2019 (Ext.45)
of the Respondent available with his third set of
nomination papers for the year 2019, for
Assembly Constituency for the State of Odisha
(S18) has been uploaded by me in the year
2019 in the month of April (04) on the date (04)
i.e. 04.04.2019 vide uploading number
095100.pdf which would be evident from the
same URL number and uploading number
available in Ext.W/4 at its top, which is the first
page of the photocopy of the affidavit in Form 26
306
dated 03.04.2019 of the Respondent (Ext.45)
attested to be the true copy."
"The fourth URL number available in the prayer
portion of Ext.W clearly demonstrates that the
affidavit in Form 26 dated 03.04.2019 (Ext.46)
of the Respondent available with his fourth set
of nomination papers for the year 2019, for
Assembly Constituency for the State of Odisha
(S18) has been uploaded by me in the year
2019 in the month of April (04) on the date (04)
i.e. 04.04.2019 vide uploading number
095209.pdf which would be evident from the
same URL number and uploading number
available in Ext.W/2 at its top, which is the first
page of the photocopy of the affidavit in Form 26
dated 03.04.2019 of the Respondent (Ext.46)
attested to be the true copy."
"All total I received twenty-seven sets of
nomination papers from total eleven candidates
for the election in question. Apart from the
Respondent, in case of the candidate
Priyadarshan Pavel, I found the affidavit in Form
26 dated 29.03.2019 (Ext.DP/1) defective and
incomplete and accordingly, I issued the check-
list i.e. Ext.DP/2 instructing him to file the
revised affidavit, which he sworn on 30.03.2019
(Ext.DP/3) and filed on 04.04.2019 and
accordingly, I issued a check-list dated
04.04.2019 (Ext.DP/4) showing receipt of the
307
Ext.DP/3. In case of the candidate Priyadarshan
Pavel, after receipt of Ext.DP/3, I also uploaded
the same in the official web portal of the Election
Commission of India like the affidavit in Form 26
dated 03.04.2019 of the Respondent. I also
followed the procedure laid down in Clause 5.20
of Ext.38 (pages 88 & 89) in the case of the
candidate Priyadarshan Pavel like the
Respondent."
"This is the downloaded and printed copy of the
cover page of the Election Commission of India
along with the nomination in Form 2B and
affidavit in Form 26 of the candidate
Priyadarshan Pavel (total 17 sheets) marked as
Ext.DU. In the cover page in Ext.DU, it is
mentioned that the affidavit was uploaded on
29.03.2019. The said cover page is marked as
Ext.DU/1, the portion showing the affidavit
uploaded on 29th March 2019 is marked as
Ext.DU/2, the nomination Form 2B of Ext.DU is
marked as Ext.DU/3, the revised affidavit in
Form 26 appearing under Ext.DU is marked as
Ext.DU/4. The original nomination paper of the
candidate Priyadarshan Pavel, which has already
been marked as Ext.DP (with objection) contains
the affidavit dated 29.03.2019 in Form 26 of the
candidate, which has already been marked as
Ext.DP/1 (with objection). As Ext.DP/1 was
incomplete, I issued checklist vide Ext.DP/2
308
(with objection) to the candidate on 29.03.2019
to submit the revised affidavit with all the
columns duly filled up before the
commencement of scrutiny of nominations. I
received the revised affidavit dated 30.03.2019
from the candidate Priyadarshan Pavel vide
Ext.DP/3 (with objection) on 04.04.2019 and
accordingly, I issued the checklist vide Ext.DP/4
(with objection) to the candidate showing receipt
of Ext.DP/3. When I received the first affidavit
dated 29.03.2019 in Form 26 (Ext.DP/1), I
uploaded the same in the web portal of the
Election Commission of India on 29.03.2019.
After receipt of the revised affidavit dated
30.03.2019 in Form 26 (Ext.DP/3) on
04.04.2019, I uploaded the same also in the
web portal of the Election Commission of India
on 04.04.2019. Ext.DU which was downloaded
and printed out today in Court as per the order
of the Court passed in I.A. No. 15 of 2023 does
not contain the affidavit in Form 26 dated
29.03.2019 (Ext.DP/1) and it only contains the
revised affidavit in Form 26 dated 30.03.2019
(Ext.DU/4), which is the downloaded and printed
out copy of Ext.DP/3."
Q. When you uploaded Ext.DP/3 in the web
portal of the Election Commission of India on
04.04.2019, whether this later affidavit over-
309
rode the earlier affidavit i.e. Ext.DP/1 in the web
portal of Election Commission of India?
Ans. Yes. Since it is a system based
configuration, it happened so. That is the reason
why in the cover page of Ext.DU, only the first
date of uploading of the affidavit is shown to be
'29th March 2019' and not '4th April 2019'.
"When the Respondent on 02.04.2019 submitted
his four sets of nomination papers in Form 2B,
he along with the same also submitted affidavits
in Form 26 dated 02.04.2019. After preliminary
examination of such nomination papers and the
affidavits filed by the Respondent, in view of
Clause 5.16.4 of Ext.38 (page 83), as Returning
Officer, I gave notice on 02.04.2019 itself to the
Respondent to submit a fresh revised affidavit
complete in all respect vide checklists marked as
Ext.39/2 (Ext.BL), Ext.40/2 (Ext.CD), Ext.41/2
(Ext.CU) and Ext.42/2 (Ext.DL). The Respondent
submitted the revised affidavits dated
03.04.2019 on 04.04.2019 before me, which
were within time and the revised affidavits have
already been marked as Ext.43, Ext.44, Ext.45
and Ext.46 and accordingly, I issued checklist
dated 04.04.2019 to the Respondent, which has
already been marked as Ext.47 (Ext.BP) showing
receipt of the revised affidavit (Ext.43,Ext.44,
Ext.45 and Ext.46)."
310
Learned counsel for the Respondent Mr. Mishra drew
the attention of this Court to the evidence of the Election
Petitioner (P.W.1) wherein he has stated that after issuing the
certificate for receipt of oath to the candidate, the Returning
Officer verifies the entire nomination paper along with the
documents filed by the candidate in presence of the candidate on
technical stand point. Thereafter, the Returning Officer prepares
a checklist in duplicate. The original of the checklist is kept on
the record along with the nomination paper and the duplicate of
the checklist is given to the candidate. The Returning Officer
specifically indicates if there is any short fall in the nomination
paper and affidavit in Form 26 filed by the candidate in the
checklist giving opportunity to him to rectify the same before the
commencement of scrutiny of nomination papers.
Learned counsel for the Respondent Mr. Mishra drew
the attention of this Court to the evidence of Dipankar Acharya
(P.W.2) wherein he has stated as follows:-
"Ext.1, Ext.2, Ext.3 and Ext.4 are the
documents which I have downloaded from the
website of the Election Commission of India on
28.06.2022. I have downloaded these
documents in my personal computer and my
personal computer is operating properly from
311
the date of downloading till now and all those
documents are available in my computer. After
downloading the documents Exts.1 to 4, the
same have been printed by utilizing my personal
printing machine. My personal printing machine
is operating properly from the date of such
printing till now. I have also downloaded Ext.32,
Ext.33, Ext.34 and Ext.35 from the website of
the Election Commission of India on 16.11.2022.
I have downloaded these documents in my
personal computer and printed in my personal
printing machine and both the computer as well
as the printing machine is operating properly
from the date of downloading till now and all
those documents are available in my computer.
My certificate under section 65-B of the Indian
Evidence Act and my signature is not appearing
in Ext.1, Ext.2, Ext.3 and Ext.4. However, I have
given certificate under section 65-B of the Indian
Evidence Act in Ext.32, Ext.33, Ext.34 and
Ext.35 and my signature is also appearing in
these documents. The certificate given by me
under section 65-B of the Indian Evidence Act in
Ext.32 is marked as Ext.32/4 and my signatures
in the said certificate are marked as Ext.32/1,
Ext.32/2 and Ext.32/3. The certificate given by
me under section 65-B of the Indian Evidence
Act in Ext.33 is marked as Ext.33/4 and my
signatures in the said certificate are marked as
Ext.33/1, Ext.33/2 and Ext.33/3. The certificate
312
given by me under section 65-B of the Indian
Evidence Act in Ext.34 is marked as Ext. 34/4
and my signatures in the said certificate are
marked as Ext. 34/1, Ext. 34/2 and Ext. 34/3.
The certificate given by me under section 65-B
of the Indian Evidence Act in Ext. 35 is marked
as Ext. 35/4 and my signatures in the said
certificate are marked as Ext. 35/1, Ext. 35/2
and Ext. 35/3."
"From Exts.32, 33, 34, and 35, it becomes clear
that the affidavit in Form 26 dated 03.04.2019
filed by the Respondent was uploaded on 2nd
April 2019. The relevant document in Ext.32
showing the date of uploading of the affidavit is
marked as Ext.32/5 (two sheets) and the
relevant portion showing the date of uploading
of the affidavit is marked as Ext.32/6."
The relevant document in Ext.33 showing the
date of uploading of the affidavit is marked as
Ext.33/5 (two sheets) and the relevant portion
showing the date of uploading of the affidavit is
marked as Ext.33/6."
"The relevant document in Ext.34 showing the
date of uploading of the affidavit is marked as
Ext.34/5 (two sheets) and the relevant portion
showing the date of uploading of the affidavit is
marked as Ext.34/6."
313
"The relevant document in Ext.35 showing the
date of uploading of the affidavit is marked as
Ext.35/5 (two sheets) and the relevant portion
showing the date of uploading of the affidavit is
marked as Ext.35/6."
"There is no official communication from the
Election Commission of India to me to download
the documents marked as Exts.1, 2, 3 and 4 and
Exts.32, 33, 34 and 35 from its website and
prepare and grant certificates under section 65-
B of the Indian Evidence Act."
"There is also no official communication from the
Returning Officer of 90-Barabati Cuttack
Assembly Constituency to me to download the
documents marked as Exts.1, 2, 3 and 4 and
Exts.32, 33, 34 and 35 from the website of the
Election Commission of India and prepare and
grant certificates under section 65-B of the
Indian Evidence Act."
"There is also no official communication from the
District Election Officer to me to download the
documents marked as Exts.1, 2, 3 and 4 and
Exts.32, 33, 34 and 35 from the website of the
Election Commission of India and prepare and
grant certificates under section 65-B of the
Indian Evidence Act."
314
"On the instruction of the Election Petitioner, I
have downloaded the documents marked as
Exts.1, 2, 3 and 4 and Exts.32, 33, 34 and 35
from the website of the Election Commission of
India and prepared and granted certificates
under section 65-B of the Indian Evidence Act.
There is no documentary proof in respect of the
instruction given by the Election Petitioner. It
was only an oral instruction. The downloading of
Exts.1, 2, 3 and 4 were made after the filing of
the Election Petition so also Exts.32, 33, 34 and
35 were downloaded after the filing of the
Election Petition."
"Apart from downloading the documents marked
as Exts.1, 2, 3 and 4 on 28.06.2022 and
Exts.32, 33, 34 and 35 on 16.11.2022, I have
also downloaded some documents in connection
with this election proceeding from the website of
the Election Commission of India between
02.04.2019 to 27.06.2022. I have downloaded
Form 2B and affidavit in Form 26 of the
Respondent during the period from 02.04.2019
to 27.06.2022, but I cannot say what other
documents I have downloaded from the website
of the Election Commission of India and on what
date. I have not downloaded any document from
the website of the Election Commission of India
in between 29.06.2022 to 15.11.2022. I have
not downloaded any document from the website
315
of the Election Commission of India in between
17.11.2022 till date nor I have downloaded
again the copies of Exts.1, 2, 3 and 4 and
Exts.32, 33, 34 and 35. In between 02.04.2019
till the filing of my evidence affidavit, I have
verified the status of the nomination form and
affidavit in Form 26 of the Respondent."
"In Exts.1, 2, 3 and 4, my signatures and my
certificates under section 65-B(4) of the Indian
Evidence Act are not there. I have not given any
certificate or declaration that Exts.1, 2, 3 and 4
have been downloaded by me. I have handed
over the documents under Exts.1, 2, 3 and 4 to
Mr. Gopal Agarwal, Advocate for the Election
Petitioner after downloading the same. I have
kept the hard copies of Exts.1, 2, 3 and 4 with
me before handing over the same to Mr. Gopal
Agarwal, Advocate."
"I have not contacted the Returning Officer of
90-Barabati Cuttack Assembly Constituency to
get the confirmed list before granting the
certificate under section 65-B of the Indian
Evidence Act. I have also not contacted the
Returning Officer of 90-Barabati Cuttack
Assembly Constituency to get the confirmed list
before filing my evidence affidavit."
"I cannot say whether the date of uploading as
available at the top of the documents under
316
Exts. W/2, W/4, W/6 and W/8 to be 04.04.2019
is correct or not."
"The uploading details as available at the top of
the documents under Exts. W/2, W/4, W/6 and
W/8 are not there in Exts. 1, 2, 3 and 4 and
Exts.32, 33, 34 and 35, but the upload date has
been mentioned in Exts.1, 2, 3 and 4 and
Exts.32, 33, 34 and 35."
"The hyperlinks which I have mentioned in
Exts.32, 33, 34 and 35 in my certificate under
section 65-B of the Indian Evidence Act as well
as in paragraph 5 of my evidence affidavit do
not find place in the documents under Ext.W."
"On comparison of hyperlinks mentioned in my
certificate under section 65-B of the Indian
Evidence Act under Exts.32, 33, 34 and 35 and
paragraph 5 of my evidence affidavit with that of
the hyperlinks mentioned in I.A. No. 23 of 2022
marked as Ext.Z filed by the Election Petitioner
to preserve all the nomination papers along with
the affidavits filed by the Respondent and
uploaded by the Returning Officer on the web
portal/hyperlinks, I find that they do not tally
with each other."
"My laptop/computer whose model No. and
Serial No. has been mentioned in paragraph 5 of
my evidence affidavit have never been used by
317
the Returning Officer of 90-Barabati Cuttack
Assembly Constituency in the process of
uploading of the nomination paper and affidavit
filed by the Respondent on 02.04.2019."
"Since I am a Law Graduate and I have basic
knowledge regarding computer operation as well
as internet operation, but I have no Degree
relating to skill, qualification and competency in
computer operation as well as internet
operation."
"I got the details of the hyperlinks which are
mentioned in my certificates under section 65-B
of the Indian Evidence Act so also in paragraph
5 of my Evidence Affidavit from the website of
the Election Commission of India. It is not a fact
that I have no official competency to grant
certificates under section 65-B of the Indian
Evidence Act. It is not a fact that my personal
computer does not satisfy the requirement as
prescribed under sub-section (2) of section 65-B
of the Indian Evidence Act. It is not a fact that
the certificates granted by me in Exts.32, 33, 34
and 35 are not valid certificates in the eye of law
as required under sub-section 4 of section 65-B
of the Indian Evidence Act."
"The information which I have received through
computer out-put is in public domain and
anyone can have access to the same and verify
318
and make print-out of the same by using
computer system and that is how I have
mentioned in paragraph 7 of my Evidence
Affidavit and also in paragraph 2 of the
certificate granted by me under section 65-B of
the Indian Evidence Act."
"It is not a fact that at the instance of the
Election Petitioner, I have given incorrect
certificates and deposing in favour of the
Election Petitioner. It is not a fact that the
certificates granted by me under section 65-B of
the Indian Evidence Act are all false and my
evidence is also false."
Mr. Mishra, learned counsel for the Respondent
submitted that under Paragraph-7(B) of the election petition, the
allegation of the Election Petitioner is to the effect that,
"Respondent has not filed the affidavit in prescribed Form 26 as
required under Section 33A of the R.P. Act, 1951." According to
the Election Petitioner, the Respondent filed his nomination on
02.04.2019 along with the affidavit in Form 26 dated
03.04.2019. Thus, the said affidavit is no affidavit in the eye of
law, in contravention of mandate of law and the Returning
Officer should have rejected the nomination of the Respondent.
According to Mr. Mishra, such allegations on the face of it stands
belied in view of the very fact that 'Checklist' dated 04.04.2019
319
(Ext.47/Ext.BP), marked without objection, shows that the
affidavits in Form 26 dated 03.04.2019 (Ext.43, Ext.44, Ext.45
and Ext.46) have been filed on 04.04.2019 by the Respondent
and the same have been received by the Returning Officer on
04.04.2019 at 12.20 p.m.
Mr. Mishra further argued that the allegations made
under Paragraph-7(B) of the election petition are bereft of
following material facts:
(a) It has not been pleaded as to why and
how the affidavit filed by the Respondent is not
in the prescribed Form 26.
(b) It has not been pleaded as to what are the
departures available in the affidavit filed by the
Respondent from the prescribed Form 26.
(c) It has not been pleaded that on
02.04.2019 the Respondent has filed four sets of
nomination papers (Ext.39, Ext.40, Ext.41 and
Ext.42) along with his four affidavits in Form 26
dated 02.04.2019 (Ext.39/1, Ext.40/1, Ext.41/1
and Ext.42/1).
(d) It has not been pleaded that on
02.04.2019 the Returning Officer, after
preliminary examination of four sets of
nomination papers including the affidavits in
320
Form 26 dated 02.04.2019 filed by the
Respondent, found that the affidavits in Form 26
dated 02.04.2019 are not in the prescribed
format and the column Nos.5, 6, 7 & 8 not
properly mentioned.
(e) It has not been pleaded that the Returning
Officer issued four 'Checklists' in original and in
duplicate (Ext.39/2, Ext.BL, Ext.40/2, Ext.CD,
Ext.41/2, Ext.CU, Ext.42/2 and Ext.DL) on
02.04.2019 with respect to four sets of
nomination papers filed by the Respondent
(Ext.39, Ext.40, Ext.41 and Ext.42) mentioning
therein that the affidavits in Form 26 dated
02.04.2019 are not in the prescribed format and
the column Nos.5, 6, 7 & 8 not properly
mentioned and further directing therein to the
Respondent to file the revised affidavit in Form
26 with all columns filled up before
commencement of scrutiny of nominations,
failing which his nomination will be liable to be
rejected.
(f) It has not been pleaded that in due
compliance of the instruction of the Returning
Officer given in the 'Checklists' dated
02.04.2019 (Ext.39/2, Ext.BL, Ext.40/2, Ext.CD,
Ext.41/2, Ext.CU, Ext.42/2 and Ext.DL), on
04.04.2019 at 12.20 P.M. the Respondent filed
the revised affidavits in Form 26 dated
321
03.04.2019 (Ext.43, Ext.44, Ext.45 and Ext.46)
before the Returning Officer.
(g) It has not been pleaded that after receipt
of the revised affidavits in Form 26 dated
03.04.2019 (Ext.43, Ext.44, Ext.45 and Ext.46)
from the Respondent on 04.04.2019, the
Returning Officer on 04.04.2019 issued
'Checklist' (Ext.47, Ext.BP) showing therein that
all the columns of the affidavit in Form 26 are
filled up and the same has been sworn before
Notary.
(h) It has not been pleaded that at the time of
filing of nomination papers including the affidavit
in Form 26 by the Respondent on 02.04.2019
who perused that the Respondent has filed his
affidavits in Form 26 dated 03.04.2019 along
with his nomination papers on 02.04.2019.
Omission to plead the above material facts under
Paragraph-7(B) of the election petition, according to Mr. Mishra,
does not disclose complete cause of action.
Learned counsel Mr. Mishra further argued that the
certificate given by P.W.2 under Section 65B of the Indian
Evidence Act vide Ext.32/4, Ext.33/4, Ext.34/4 and Ext.35/4 are
not acceptable as the same are not in consonance with the
requirements of law as laid down under Section 65B of the
322
Indian Evidence Act. Reliance is placed in the case of Arjun
Panditrao Khotkar -Vrs.- Kailash Kushanrao Gorantyal and
others reported in (2020) 7 Supreme Court Cases 1,
wherein the Hon'ble Supreme Court held as follows:-
"21. Section 65 differentiates between
existence, condition and contents of a
document. Whereas "existence" goes to
"admissibility" of a document, "contents" of a
document are to be proved after a document
becomes admissible in evidence. Section 65-A
speaks of "contents" of electronic records being
proved in accordance with the provisions of
Section 65-B. Section 65-B speaks of
"admissibility" of electronic records which deals
with "existence" and "contents" of electronic
records being proved once admissible into
evidence....
22. It will first be noticed that the subject-
matter of Sections 65-A and 65-B of the
Evidence Act is proof of information contained in
electronic records. The marginal note to Section
65-A indicates that "special provisions" as to
evidence relating to electronic records are laid
down in this provision. The marginal note to
Section 65-B then refers to "admissibility of
electronic records".
323
23. Section 65-B(1) opens with a non-obstante
clause, and makes it clear that any information
that is contained in an electronic record which is
printed on a paper, stored, recorded or copied in
optical or magnetic media produced by a
computer shall be deemed to be a document,
and shall be admissible in any proceedings
without further proof of production of the
original, as evidence of the contents of the
original or of any facts stated therein of which
direct evidence would be admissible. The
deeming fiction is for the reason that
"document" as defined by Section 3 of the
Evidence Act does not include electronic records.
24. Section 65-B(2) then refers to the conditions
that must be satisfied in respect of a computer
output, and states that the test for being
included in conditions 65-B(2)(a) to 65-B(2)(d)
is that the computer be regularly used to store
or process information for purposes of activities
regularly carried on in the period in question.
The conditions mentioned in sub-sections (2)(a)
to (2)(d) must be satisfied cumulatively.
25. Under sub-section (4), a certificate is to be
produced that identifies the electronic record
containing the statement and describes the
manner in which it is produced, or gives
particulars of the device involved in the
production of the electronic record to show that
324
the electronic record was produced by a
computer, by either a person occupying a
responsible official position in relation to the
operation of the relevant device; or a person
who is in the management of "relevant
activities" -- whichever is appropriate. What is
also of importance is that it shall be sufficient for
such matter to be stated to the "best of the
knowledge and belief of the person stating it".
Here, "doing any of the following things ..." must
be read as doing all of the following things, it
being well settled that the expression "any" can
mean "all" given the context....
xxx xxx xxx
32. Coming back to Section 65-B of the Evidence
Act, sub-section (1) needs to be analysed. The
sub-section begins with a non-obstante clause,
and then goes on to mention information
contained in an electronic record produced by a
computer, which is, by a deeming fiction, then
made a "document". This deeming fiction only
takes effect if the further conditions mentioned
in the section are satisfied in relation to both the
information and the computer in question; and if
such conditions are met, the "document" shall
then be admissible in any proceedings. The
words '...without further proof or production of
the original..." make it clear that once the
deeming fiction is given effect by the fulfilment
325
of the conditions mentioned in the section, the
"deemed document" now becomes admissible in
evidence without further proof or production of
the original as evidence of any contents of the
original, or of any fact stated therein of which
direct evidence would be admissible.
33. The non-obstante clause in sub-section (1)
makes it clear that when it comes to information
contained in an electronic record, admissibility
and proof thereof must follow the drill of Section
65-B, which is a special provision in this behalf-
Sections 62 to 65 being irrelevant for this
purpose. However, Section 65-B(1) clearly
differentiates between the "original" document-
which would be the original "electronic record"
contained in the "computer" in which the original
information is first stored -- and the computer
output containing such information, which then
may be treated as evidence of the contents of
the "original" document. All this necessarily
shows that Section 65-B differentiates between
the original information contained in the
"computer" itself and copies made therefrom --
the former being primary evidence, and the
latter being secondary evidence.
34. Quite obviously, the requisite certificate in
sub-section (4) is unnecessary if the original
document itself is produced. This can be done by
the owner of a laptop computer, a computer
326
tablet or even a mobile phone, by stepping into
the witness box and proving that the device
concerned, on which the original information is
first stored, is owned and/or operated by him. In
cases where "the computer", as defined,
happens to be a part of a "computer system" or
"computer network" (as defined in the
Information Technology Act, 2000) and it
becomes impossible to physically bring such
network or system to the court, then the only
means of proving information contained in such
electronic record can be in accordance with
Section 65-B(1), together with the requisite
certificate under Section 65-B(4). This being the
case, it is necessary to clarify what is contained
in the last sentence in para 24 of Anvar P.V.
which reads as "...if an electronic record as such
is used as primary evidence under Section 62 of
the Evidence Act..." This may more appropriately
be read without the words "under Section 62 of
the Evidence Act...". With this minor clarification,
the law stated in para 24 of Anvar P.V. does not
need to be revisited.
35. In fact, in Vikram Singh v. State of Punjab, a
three-Judge Bench of this Court followed the law
in Anvar P.V., clearly stating that where primary
evidence in electronic form has been produced,
no certificate under Section 65-B would be
327
necessary. This was so stated as follows: (SCC
pp. 531-32, paras 25-26)
"25. The learned counsel contended that
the tape-recorded conversation has
been relied on without there being any
certificate under Section 65-B of the
Evidence Act, 1872. It was contended
that audio tapes are recorded on
magnetic media, the same could be
established through a certificate under
Section 65-B and in the absence of the
certificate, the document which
constitutes electronic record, cannot be
deemed to be a valid evidence and has
to be ignored from consideration.
Reliance has been placed by the learned
counsel on the judgment of this Court in
Anvar P.V. v. P.K. Basheer. The
conversation on the landline phone of
the complainant situate in a shop was
recorded by the complainant. The same
cassette containing conversation by
which ransom call was made on the
landline phone was handed over by the
complainant in original to the police.
This Court in its judgment dated 25-1-
2010 has referred to the aforesaid fact
and has noted the said fact to the
328
following effect: (Vikram Singh case,
SCC p. 61, para 5)
'5....The cassette on which the
conversations had been recorded on the
landline was handed over by Ravi Verma
to SI Jiwan Kumar and on a replay of
the tape, the conversation was clearly
audible and was heard by the police.'
26. The tape-recorded conversation was
not secondary evidence which required
certificate under Section 65-B, since it
was the original cassette by which
ransom call was tape-recorded, there
cannot be any dispute that for admission
of secondary evidence of electronic
record a certificate as contemplated by
Section 65-B is a mandatory condition."
36. Despite the law so declared in Anvar P.V.,
wherein this Court made it clear that the special
provisions of Sections 65-A and 65-B of the
Evidence Act are a complete code in themselves
when it comes to admissibility of evidence of
information contained in electronic records, and
also that a written certificate under Section 65-
B(4) is a sine qua non for admissibility of such
evidence, a discordant note was soon struck in
Tomaso Bruno. In this judgment, another three-
Judge Bench dealt with the admissibility of
329
evidence in a criminal case in which CCTV
footage was sought to be relied upon in
evidence. The Court held: (Tomaso Bruno case,
SCC pp. 191-92, paras 24-25)
"24. With the advancement of
information technology, scientific temper
in the individual and at the institutional
level is to pervade the methods of
investigation. With the increasing impact
of technology in everyday life and as a
result, the production of electronic
evidence in cases has become relevant
to establish the guilt of the accused or
the liability of the defendant. Electronic
documents stricto sensu are admitted as
material evidence. With the amendment
to the Evidence Act in 2000, Sections
65-A and 65-B were introduced into
Chapter V relating to documentary
evidence. Section 65-A provides that
contents of electronic records may be
admitted as evidence if the criteria
provided in Section 65-B is complied
with. The computer generated electronic
records in evidence are admissible at a
trial if proved in the manner specified by
Section 65-B of the Evidence Act. Sub-
section (1) of Section 65-B makes
admissible as a document, paper
330
printout of electronic records stored in
optical or magnetic media produced by a
computer, subject to the fulfilment of
the conditions specified in sub-section
(2) of Section 65-B. Secondary evidence
of contents of document can also be led
under Section 65 of the Evidence Act.
PW 13 stated that he saw the full video
recording of the fateful night in the
CCTV camera, but he has not recorded
the same in the case diary as nothing
substantial to be adduced as evidence
was present in it.
25. The production of scientific and
electronic evidence in court as
contemplated under Section 65-B of the
Evidence Act is of great help to the
investigating agency and also to the
prosecution. The relevance of electronic
evidence is also evident in the light of
Mohd. Ajmal Amir Kasab v. State of
Maharashtra, wherein production of
transcripts of internet transactions
helped the prosecution case a great deal
in proving the guilt of the accused.
Similarly, in State (NCT of Delhi) v.
Navjot Sandhu, the links between the
slain terrorists and the masterminds of
the attack were established only through
331
phone call transcripts obtained from the
mobile service providers."
37. What is clear from this judgment is that the
judgment of Anvar P.V. was not referred to at
all. In fact, the judgment in State (NCT of Delhi)
v. Navjot Sandhu was adverted to, which was a
judgment specifically overruled by Anvar P.V. It
may also be stated that Section 65-B(4) was
also not at all adverted to by this judgment.
Hence, the declaration of law in Tomaso Bruno
following Navjot Sandhu that secondary
evidence of the contents of a document can also
be led under Section 65 of the Evidence Act to
make CCTV footage admissible would be in the
teeth of Anvar P.V. and cannot be said to be a
correct statement of the law. The said view is
accordingly overruled.
xxx xxx xxx
45. Thus, it is clear that the major premise of
Shafhi Mohammad that such certificate cannot
be secured by persons who are not in possession
of an electronic device is wholly incorrect. An
application can always be made to a Judge for
production of such a certificate from the
requisite person under Section 65-B(4) in cases
in which such person refuses to give it.
xxx xxx xxx
332
51. On an application of the aforesaid maxims to
the present case, it is clear that though Section
65-B(4) is mandatory, yet, on the facts of this
case, the respondents, having done everything
possible to obtain the necessary certificate,
which was to be given by a third party over
whom the respondents had no control, must be
relieved of the mandatory obligation contained
in the said sub-section.
52. We may hasten to add that Section 65-B
does not speak of the stage at which such
certificate must be furnished to the Court. In
Anvar P.V., this Court did observe that such
certificate must accompany the electronic record
when the same is produced in evidence. We may
only add that this is so in cases where such
certificate could be procured by the person
seeking to rely upon an electronic record.
However, in cases where either a defective
certificate is given, or in cases where such
certificate has been demanded and is not given
by the person concerned, the Judge conducting
the trial must summon the person/persons
referred to in Section 65-B(4) of the Evidence
Act, and require that such certificate be given by
such person/persons. This, the trial Judge ought
to do when the electronic record is produced in
evidence before him without the requisite
certificate in the circumstances aforementioned.
333
This is, of course, subject to discretion being
exercised in civil cases in accordance with law,
and in accordance with the requirements of
justice on the facts of each case. When it comes
to criminal trials, it is important to keep in mind
the general principle that the accused must be
supplied all documents that the prosecution
seeks to rely upon before commencement of the
trial, under the relevant sections of the CrPC.
xxx xxx xxx
60. It may also be seen that the person who
gives this certificate can be anyone out of
several persons who occupy a "responsible
official position" in relation to the operation of
the relevant device, as also the person who may
otherwise be in the "management of relevant
activities" spoken of in sub-section (4) of Section
65-B. Considering that such certificate may also
be given long after the electronic record has
actually been produced by the computer, Section
65-B(4) makes it clear that it is sufficient that
such person gives the requisite certificate to the
"best of his knowledge and belief". [Obviously,
the word "and" between knowledge and belief in
Section 65-B(4) must be read as "or", as a
person cannot testify to the best of his
knowledge and belief at the same time.]
334
61. We may reiterate, therefore, that the
certificate required under Section 65-B(4) is a
condition precedent to the admissibility of
evidence by way of electronic record, as
correctly held in Anvar P.V., and incorrectly
"clarified" in Shafhi Mohammad. Oral evidence in
the place of such certificate cannot possibly
suffice as Section 65-B(4) is a mandatory
requirement of the law. Indeed, the hallowed
principle in Taylor v. Taylor, which has been
followed in a number of the judgments of this
Court, can also be applied. Section 65-B(4) of
the Evidence Act clearly states that secondary
evidence is admissible only if led in the manner
stated and not otherwise. To hold otherwise
would render Section 65-B(4) otiose.
xxx xxx xxx
73. The reference is thus answered by stating
that:
73.1. Anvar P.V., as clarified by us hereinabove,
is the law declared by this Court on Section 65-B
of the Evidence Act. The judgment in Tomaso
Bruno, being per incuriam, does not lay down
the law correctly. Also, the judgment in Shafhi
Mohammad and the judgment dated 3-4-2018
reported as Shafhi Mohd. v. State of H.P., do not
lay down the law correctly and are therefore
overruled.
335
73.2. The clarification referred to above is that
the required certificate under Section 65-B(4) is
unnecessary if the original document itself is
produced. This can be done by the owner of a
laptop computer, computer tablet or even a
mobile phone, by stepping into the witness box
and proving that the device concerned, on which
the original information is first stored, is owned
and/or operated by him. In cases where the
"computer" happens to be a part of a "computer
system" or "computer network" and it becomes
impossible to physically bring such system or
network to the court, then the only means of
providing information contained in such
electronic record can be in accordance with
Section 65-B(1), together with the requisite
certificate under Section 65-B(4). The last
sentence in para 24 in Anvar P.V. which reads as
"...if an electronic record as such is used as
primary evidence under Section 62 of the
Evidence Act ..." is thus clarified; it is to be read
without the words "under Section 62 of the
Evidence Act,...". With this clarification, the law
stated in para 24 of Anvar P.V. does not need to
be revisited.
73.3. The general directions issued in para 64
(supra) shall hereafter be followed by courts
that deal with electronic evidence, to ensure
their preservation, and production of certificate
336
at the appropriate stage. These directions shall
apply in all proceedings, till rules and directions
under Section 67-C of the Information
Technology Act and data retention conditions are
formulated for compliance by telecom and
internet service providers.
xxx xxx xxx
84. But Section 65-B(1) starts with a non-
obstante clause excluding the application of the
other provisions and it makes the certification, a
pre-condition for admissibility. While doing so, it
does not talk about relevancy. In a way,
Sections 65-A and 65-B, if read together, mix up
both proof and admissibility, but not talk about
relevancy. Section 65-A refers to the procedure
prescribed in Section 65-B, for the purpose of
proving the contents of electronic records, but
Section 65-B speaks entirely about the
preconditions for admissibility. As a result,
Section 65-B places admissibility as the first or
the outermost checkpost, capable of turning
away even at the border, any electronic
evidence, without any enquiry, if the conditions
stipulated therein are not fulfilled."
Keeping in view the ratio laid down in the aforesaid
decision, I find that the evidence of P.W.2 is clear, cogent and
trustworthy as to how he downloaded the documents from the
337
website of the Election Commission of India and printed by
utilising his personal printing machine and stored in his personal
computer which was being regularly used by him to store and
process informations. There is no flaw in the certificate furnished
by him. Therefore, the documents proved by P.W.2 along with
his certificates becomes admissible in evidence. I find no
illegality in the certificates given by P.W.2 under section 65B of
the Indian Evidence Act vide Ext.32/4, Ext.33/4, Ext.34/4 and
Ext.35/4 and in my humble view, the same were in consonance
with the requirements of law as laid down under Section 65B of
the Indian Evidence Act. The contentions of Mr. Mishra, learned
counsel for the Respondent not to give any importance to the
evidence of P.W.2 cannot be accepted.
Four 'checklists' dated 02.04.2019 issued by the
Returning Officer in favour of the Respondent have been marked
as Ext.39/2, Ext.40/2, Ext.41/2 and Ext.42/2 wherein the
Returning Officer has given instruction to the Respondent to file
revised/fresh affidavit in Form 26 before commencement of
scrutiny of nominations. The affidavits in Form 26 dated
03.04.2019 filed by the Respondent before the Returning Officer
on 04.04.2019 have been marked as Ext.43, Ext.44, Ext.45 and
Ext.46 on behalf of the Election Petitioner. The 'checklist' dated
338
04.04.2019 issued by the Returning Officer in favour of the
Respondent has been marked as Ext.47 showing that on
04.04.2019 the Returning Officer has received the revised/fresh
affidavit in Form 26 dated 03.04.2019 from the Respondent. The
next document is I.A. No.24/2020 filed on behalf of the Election
Petitioner, which has been marked as Ext.W on behalf of the
Respondent. The hyperlinks mentioned in the cause title,
paragraph-4, paragraph-5 and prayer portion of Ext.W show that
the revised affidavits dated 03.04.2019 have been uploaded on
2019-04-04 i.e. 04.04.2019. Ext.W/2, Ext.W/4, Ext.W/6 and
Ext.W/8, which are the downloaded copies of the 1st page of four
affidavits dated 03.04.2019 filed by the Respondent bear the
same hyperlinks at its top showing that the revised/fresh
affidavits dated 03.04.2019 of the Respondent have been
uploaded on 2019-04-04 i.e. 04.04.2019.
It appears that in the election in question, two
candidates had filed defective/incomplete affidavit in Form 26
along with their respective nomination papers. One candidate is
the Respondent and the other candidate is Priyadarsan Pavel.
The affidavit in Form 26 dated 29.03.2019 filed by the candidate
Priyadarsan Pavel (Ext.DP/1) found to be incomplete and
defective by the Returning Officer. The Returning Officer issued
339
'checklist' dated 29.03.2019 (Ext.DP/2) to the candidate
Priyadarsan Pavel directing therein to file a revised affidavit
before commencement of scrutiny of nominations. Accordingly,
the candidate Priyadarsan Pavel sworn the revised/fresh affidavit
in Form 26 on 30.03.2019, which has been marked as Ext.DP/3.
The revised/fresh affidavit in Form 26 dated 30.03.2019 has
been filed by the candidate Priyadarsan Pavel before the
Returning Officer on 04.04.2019. After receipt of the
revised/fresh affidavit in Form 26 dated 30.03.2019 (Ext.DP/3)
on 04.04.2019, the Returning Officer issued a fresh 'checklist'
dated 04.04.2019 which has been marked as Ext.DP/4. Upon
application filed on behalf of the Respondent, this Court directed
to download the nomination paper and the affidavit in Form 26
filed by the candidate Priyadarsan Pavel in Court from the web
portal of Election Commission of India. The said downloaded and
printed copy of the cover page of the Election Commission of
India along with the nomination paper in Form 2B and affidavit in
Form 26 of the candidate Priyadarsan Pavel has been marked as
Ext.DU (without objection). The cover page of Ext.DU has been
marked as Ext.DU/1 and the portion showing the affidavit
uploaded on 29th March 2019 has been marked as Ext.DU/2. In
Ext.DU, only one affidavit in Form 26 dated 30.03.2019 of the
340
candidate Priyadarsan Pavel is available. The 1st affidavit in Form
26 dated 29.03.2019 of the candidate Priyadarsan Pavel is not
available in Ext.DU i.e. in the web portal of the Election
Commission of India. Thus, the evidence of the Returning Officer
(P.W.3) to the effect that the revised/fresh affidavit overrode the
earlier affidavit has got sufficient force.
In view of the foregoing discussions, I come to the
finding that the Respondent filed plain paper affidavits on
02.04.2019 along with his nomination papers before P.W.3, the
Returning Officer and since the same were defective and not in
the prescribed format, P.W.3 asked the Respondent by issuing
checklists to file fresh/revised affidavit in Form 26 on duly
stamped papers. No doubt, the Respondent has stated in one
line in the cross-examination that he filed Exts.43 to 46 (which
are the affidavits in Form 26 dated 03.04.2019) along with his
nomination papers Exts.39 to 42 (which were filed on
02.04.2019), but evidence has to be read as a whole and not by
hair splitting analysis and reading in between lines. It is not that
a part of evidence of a witness, in isolation, is to be taken out
without any context of that. In the case of State of U.P. -Vrs.-
Krishna Master reported in (2010) 12 Supreme Court
341
Cases 324, the Hon'ble Supreme Court has, no ambiguous
words, observed:-
"15. Before appreciating evidence of the
witnesses examined in the case, it would be
instructive to refer to the criteria for
appreciation of oral evidence. While appreciating
the evidence of a witness, the approach must be
whether the evidence of the witness read as a
whole appears to have a ring of truth. Once that
impression is found, it is undoubtedly necessary
for the court to scrutinise the evidence more
particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find
out whether it is against the general tenor of the
evidence and whether the earlier evaluation of
the evidence is shaken as to render it unworthy
of belief."
In my view, the Respondent had not filed his affidavit
in Form 26 dated 03.04.2019 along with his nomination papers
on 02.04.2019 rather he had filed the said affidavit dated
03.04.2019 on 04.04.2019 and the Returning Officer (P.W.3)
received the affidavit in Form 26 dated 03.04.2019 from the
Respondent on 04.04.2019 and issued checklist dated
04.04.2019 to the Respondent. On 02.04.2019, P.W.3 has not
illegally and improperly accepted the affidavit dated 03.04.2019
342
along with the nomination papers of the Respondent, rather he
accepted such affidavit which was in the nature of a
fresh/revised affidavit on 04.04.2019. No doubt the earlier
affidavit of the Respondent dated 02.04.2019 was not available
in the web portal of the Election Commission of India, but in view
of the evidence of P.W.3, the Returning Officer, it becomes clear
that when the affidavit dated 03.04.2019 of the Respondent was
uploaded on 04.04.2019, the system overrode the earlier
affidavit dated 02.04.2019 and the subsequent affidavit
prevailed over the earlier affidavit and it was a system based
configuration. Absence of the affidavit dated 02.04.2019 in the
web portal cannot be a ground to doubt its existence particularly
when the same has been duly proved through competent
persons.
Accordingly, the issue nos.15 and 16 are answered in
favour of the Respondent and against the Election Petitioner. In
view of my answer to issue nos.15 and 16, it is not necessary to
answer issue nos.19 and 20.
11. Issue Nos.17 & 21 (Disclosure of Criminal
Cases):-
Issues nos.17 and 21 deal with question of disclosure
of all criminal cases, pending against the Respondent, in the
343
affidavit in Form 26. As both the issues are analogous and
interlinked with each other, it is deemed proper by this Court to
deal both of them together. The above issues are extracted
herein below for ready reference:-
"17. Whether the sole Respondent has disclosed
all the criminal cases pending against him in his
affidavit in Form 26 dated 03.04.2019 as per the
prescribed format and instructions of Form 26 or
not?
19. Whether the Respondent has made proper
and full declaration about the criminal cases
pending against him in the affidavit filed in
Form 26?"
Mr. Milan Kanungo, learned Senior Advocate argued
that the Respondent has given false and misleading affidavit in
Form 26 along with the nomination paper so far as his thirteen
criminal cases are concerned.
The requirement of filing an affidavit arises from the
decision of Hon'ble Supreme Court in the case of Union of India
-Vrs.- Association for Democratic Reforms and another
reported in (2002) 5 Supreme Court Cases 294. In that
case, Hon'ble Apex Court, examined the nature and extent of
jurisdiction exercised by the Election Commission under Article
324 of the Constitution and held that the same was wide enough
344
to include all powers necessary for smooth conduct of elections
and that the word "Election" was used in a wide sense to include
entire process of election and held that the Election Commission
could invoke its power under Article 324 till Parliament brought a
suitable legislation on the subject.
The Supreme Court recognized the right of the voters
in the country to know about the particulars and antecedents of
the candidates who would represent them in Parliament where
laws concerning their liberty and property may be enacted, and
declared that the right of freedom of speech and expression
guaranteed under Article 19(1)(a) of the Constitution would
include the freedom of the voter to cast his vote for which
purpose the voter was entitled to know everything that would
enable him to make the right choice. It was with that salutary
object in mind, the Hon'ble Supreme Court issued directions to
the Election Commission to call for information on affidavit from
each one of the candidate seeking election to Parliament or State
Legislatures as an essential part of his nomination papers
furnishing therein information in relation to his/her candidature
and it also directed the Election Commission to call for
information on affidavit:
345
(1) Whether the candidate is convicted/
acquitted/discharged of any criminal offence in
the past if any, whether he is punished with
imprisonment or fine;
(2) Prior to six months of filing of nomination,
whether the candidate is accused in any pending
case, of any offence punishable with
imprisonment for two years or more, and in
which charge is framed or cognizance is taken
by the court of law. If so, the details thereof;
(3) The assets (immovable, movable, bank
balance, etc.) of a candidate and of his/her
spouse and that of dependents;
(4) Liabilities, if any, particularly, whether there
are any overdues of any public financial
institution or government dues;
(5) The educational qualifications of the
candidate.
As a sequel to the above directions, the Parliament
amended the R.P. Act, 1951 and introduced section 33A and 33B
by the Representation of People (3rd Amendment) Act, 2002.
Section 33A made it obligatory for every candidate to furnish
information whether or not he has been accused of any offence
punishable with imprisonment for two years or more in a pending
case in which a charge has been framed by the Court and
346
whether he has been convicted of an offence other than those
referred to in sub-section (1) or (2) or covered in sub-section (3)
of section 8 and sentenced to imprisonment for one year or
more. Sub-section (2) of section 33-A required a candidate or his
proposer to deliver to the Returning Officer an affidavit sworn by
the candidate in the prescribed form along with nomination
papers in which the information specified above is set out.
Section 33-B, however, purported to neutralise the effect of the
directions issued by the Supreme Court in the case of
Association for Democratic Reforms (supra) and declared
that no candidate shall be liable to disclose or furnish any
information, in respect of his election, which is not required to be
disclosed or furnished under the Act or the Rules made
thereunder.
The constitutional validity of the above additions to
the statute was challenged before Hon'ble Supreme Court in the
case of People's Union for Civil Liberties (PUCL) and
another -Vrs.- Union of India and another reported in
(2003) 4 Supreme Court Cases 399 and the Hon'ble Supreme
Court while upholding the vires of Section 33-A, declared Section
33-B to be constitutionally invalid being in violation of Article
19(1)(a) of the Constitution. The Supreme Court reiterated the
347
directions given in the case of Association for Democratic
Reforms (supra) and directed the Election Commission to issue
revised instructions keeping in view the observations made in
the judgment delivered by the Supreme Court. The Supreme
Court also held that the order issued by the Election Commission
relating to the disclosure of assets and liabilities will continue to
hold good and be operative although direction insofar as
verification of assets and liabilities by means of a summary
enquiry and rejection of nomination papers on the ground of
furnishing wrong information or suppression of material
information was concerned, the same shall not be enforced. The
Hon'ble Highest Court further observed:-
"123.(9) The Election Commission has to issue
revised instructions to ensure implementation of
Section 33-A subject to what is laid down in this
judgment regarding the cases in which
cognizance has been taken. The Election
Commission's orders related to disclosure of
assets and liabilities will still hold good and
continue to be operative. However, Direction 4
of para 14 insofar as verification of assets and
liabilities by means of summary enquiry and
rejection of nomination paper on the ground of
furnishing wrong information or suppressing
material information should not be enforced."
348
Subsequently, another writ petition under Article 32
of the Constitution was filed to issue specific directions to
effectuate seeking implementation of the judgment rendered by
the Hon'ble Supreme Court in the case of Assn. for Democratic
Reforms (supra) and People's Union for Civil Liberties
(supra). After giving hearing to the respective parties, the
Hon'ble Supreme Court in the case of Resurgence India -Vrs.-
Election Commission of India & Another reported in
(2014) 14 Supreme Court Cases 189 held that:
"29. What emerges from the above discussion
can be summarised in the form of the following
directions:
29.1. The voter has the elementary right to
know full particulars of a candidate who is to
represent him in Parliament/Assemblies and
such right to get information is universally
recognised. Thus, it is held that right to know
about the candidate is a natural right flowing
from the concept of democracy and is an
integral part of Article 19(1)(a) of the
Constitution.
29.2. 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
349
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.
29.3. Filing of affidavit with blank particulars will
render the affidavit nugatory.
29.4. 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
the 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.
29.5. We clarify to the extent that para 73 of
People's Union for Civil Liberties case will not
come in the way of the Returning Officer to
reject the nomination paper when the affidavit is
filed with blank particulars.
29.6. The candidate must take the minimum
effort to explicitly remark as "NIL" or "Not
350
Applicable" or "Not known" in the columns and
not to leave the particulars blank.
29.7. Filing of affidavit with blanks will be
directly hit by Section 125-A(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
penalised for the same act by prosecuting
him/her."
After the above judgments of the Hon'ble Supreme
Court, an Election Petition was filed in the High Court of Bombay
challenging the election of the returned candidate under sections
100(1)(d)(i) and (iv) of the R.P. Act, 1951. It was alleged that
the returned candidate had suppressed information as to his
assets, liabilities, government dues, assets of his spouse and
other material information in the affidavit filed by him along with
the nomination form. The High Court allowed the election
petition and set aside the election of the returned candidate. On
appeal, the Hon'ble Supreme Court upheld the judgment passed
by the Bombay High Court.
In the case of Kishan Shankar Kathore -Vrs.-
Arun Dattatray Sawant and others reported in (2014) 14
351
Supreme Court Cases 162, the Hon'ble Supreme Court held as
follows:
"2. The election petition was filed under Sections
100(1)(d)(i) and (iv) of the Act on the ground
that in the nomination form filled in by the
appellant he had suppressed his dues payable to
the Government, suppressed the assets of his
spouse and also suppressed the information and
assets of a partnership firm of which he is a
partner. The appellant contested the said
petition. Evidence was led. After hearing the
arguments, the High Court passed judgment
dated 16-8-2007 accepting the plea of the first
respondent that the nomination form of the
appellant was defective and should not have
been accepted by the Returning Officer.
xxx xxx xxx
31. On Issue 7, finding of the High Court is that
nomination was improperly accepted by the
Returning Officer by giving the following
reasons:
"130. That takes me to the next issue
as to whether the petitioner proves that
the respondent's nomination form is
improperly accepted by the Returning
Officer? Insofar as this issue is
concerned, the respondent may be right
352
to the extent that the Returning Officer
cannot be faulted for having accepted
the nomination form of the respondent.
That was required to be accepted in
spite of the objection, in view of the
decision of the Apex Court in People's
Union for Civil Liberties and the order
issued by the Election Commission on
the basis of the law declared in the said
judgment. Inasmuch as, it was not open
to the Returning Officer to enquire into
contentious issues raised in this petition
in the summary enquiry at the stage of
scrutiny of nomination forms. Those
matters necessarily have to be
addressed only after it is disclosed in an
enquiry upon taking evidence on the
relevant facts at the trial of the election
petition. That does not mean that the
nomination of the respondent was
proper and lawful. As the respondent's
nomination paper suffered from the
defects already referred to in the earlier
part of this decision, it is plainly a case
of improper acceptance of his
nomination paper by the Returning
Officer, covered by the rigours of
Section 100(1)(d)(i) of the Act. Issue 7
will have to be answered accordingly."
353
32. Issue 8 pertains to the question as to
whether the election result was materially
affected because of non-disclosure of the
aforesaid information. The High Court took note
of the provisions of Sections 100(1)(d)(i) and
(iv) and discussed the same. Thereafter, some
judgments cited by the appellant were
distinguished and deciding this issue against the
appellant, the High Court concluded as under:
"137. In my opinion, it is not necessary
to elaborate on this matter beyond a
point, except to observe that when it is
a case of improper acceptance of
nomination on account of invalid
affidavit or no affidavit filed therewith,
which affidavit is necessarily an integral
part of the nomination form; and when
that challenge concerns the returned
candidate and if upheld, it is not
necessary for the petitioner to further
plead or prove that the result of the
returned candidate has been materially
affected by such improper acceptance.
138. The avowed purpose of filing the
affidavit is to make truthful disclosure of
all the relevant matters regarding assets
(movable and immovable) and liabilities
as well as criminal actions (registered,
pending or in respect of which
354
cognizance has been taken by the court
of competent jurisdiction or in relation
to conviction in respect of specified
offences). Those are matters which are
fundamental to the accomplishment of
free and fair election. It is the
fundamental right of the voters to be
informed about all matters in relation to
such details for electing candidate of
their choice. Filing of complete
information and to make truthful
disclosure in respect of such matters is
the duty of the candidate who offers
himself or who is nominated for election
to represent the voters from that
constituency. As the candidate has to
disclose this information on affidavit, the
solemnity of the affidavit cannot be
allowed to be ridiculed by the candidates
by offering incomplete information or
suppressing material information,
resulting in disinformation and
misinformation to the voters. The
sanctity of disclosure to be made by the
candidate flows from the constitutional
obligation."
xxx xxx xxx
34. We may state, in the first instance, that the
judgment in G.M. Siddeshwar has no application
355
insofar as the present case is concerned. The
Court was dealing with the form of affidavit that
is required to be filed along with the election
petition in order to comply with the provisions of
Section 83(1) proviso of the Act. The very
maintainability of the election petition was
challenged on the ground that the affidavit
furnished by the election petitioner was not in
absolute compliance with the format affidavit
(Form 25). The Court, however, upheld the view
of the High Court holding that on perusal of the
affidavit, there was substantial compliance with
the prescribed format. Even when some defect
was found in the verification to the election
petition, it was held that the said defect is also
curable and cannot be held fatal to the
maintainability of the election petition. In the
present case, we are concerned with the
affidavit which a candidate seeking election is
required to file along with his nomination form.
At the same time, we proceed on the basis that
if there is a substantial compliance with the
requirements contained in the said affidavits, in
the sense that there is a disclosure of required
particulars, including assets/liabilities, etc., it
can be treated as adequate compliance with the
provisions of the Act, Rules and Orders.
xxx xxx xxx
356
36. In view of the aforesaid, two facets of the
issue, which require consideration, are as
follows:
36.1. (i) Whether there is a substantial
compliance in disclosing the requisite
information in the affidavits filed by the
appellant along with the nomination paper?
36.2.(ii) Whether non-disclosure of the
information on account of the aforesaid four
aspects has materially affected the result of the
election?
37. We have already discussed in detail each
item of non-disclosure as well as defence of the
appellant pertaining thereto. For the reasons
recorded in detail at that stage by the High
Court and stated above, with which we agree,
we are of the opinion that its finding about non-
disclosure of the information qua all the aspects
is without blemish. There is a specific format in
which the information is to be given, which was
not adhered to.
xxx xxx xxx
41. It was argued that the acceptance of
nomination is as per Section 33 of the Act, which
contains requirement for a valid nomination.
Further Section 36(2) deals with the rejection of
nomination on grounds specified therein. It was
357
the submission of the learned Senior Counsel
that at the time of scrutiny of the nomination
under Section 36, nomination could be rejected
only if any of the grounds stipulated in sub-
section (2) are satisfied and there cannot be any
"deemed" ground, which is not covered by
Section 36(2) of the Act. Therefore, the
Returning Officer had rightly accepted the
nomination form as none of the grounds
specified in sub-section (2) of Section 36 were
attracted. He further submitted that Sections 8-
A, 9, 9-A, 10 and 10-A provide disqualifications
for the Members of Parliament and the State
Legislature. As per the counsel, from the scheme
of the Act it can be seen that at the time of
scrutiny of nomination, all that the Returning
Officer is required to examine is as to whether
the candidate suffers from any of the
disqualifications mentioned in Sections 8 to 10-A
of the Act and as to whether the nomination is in
the form prescribed by Section 33 and
accompanied by the documents mentioned in
sub-sections (2) to (7) of Section 33 and
whether it is accompanied by an affidavit
prescribed by Rule 4-A and the deposit required
by Section 34 of the Act. Apart from the
aforesaid, the Returning Officer is not
empowered to reject the nomination on any
other ground. He argued that the right of the
Returning Officer to conduct a summary inquiry
358
into the correctness or otherwise of the contents
of the affidavit filed along with the nomination
was expressly taken away as can be seen from
the judgment of this Court in People's Union for
Civil Liberties. Having noted that the Returning
Officer has no power to reject a nomination
where false information is furnished or material
information is suppressed, the Election
Commission of India and the Union of India have
requested this Court to treat the same as equal
to a blank affidavit, as noted in Resurgence
India.
xxx xxx xxx
43. When the information is given by a
candidate in the affidavit filed along with the
nomination paper and objections are raised
thereto questioning the correctness of the
information or alleging that there is non-
disclosure of certain important information, it
may not be possible for the Returning Officer at
that time to conduct a detailed examination.
Summary enquiry may not suffice. The present
case is itself an example which loudly
demonstrates this. At the same time, it would
not be possible for the Returning Officer to
reject the nomination for want of verification
about the allegations made by the objector. In
such a case, when ultimately it is proved that it
was a case of non-disclosure and either the
359
affidavit was false or it did not contain complete
information leading to suppression, it can be
held at that stage that the nomination was
improperly accepted. Ms Meenakshi Arora,
learned Senior Counsel appearing for the
Election Commission, rightly argued that such an
enquiry can be only at a later stage and the
appropriate stage would be in an election
petition as in the instant case, when the election
is challenged. The grounds stated in Section
36(2) are those which can be examined there
and then and on that basis the Returning Officer
would be in a position to reject the nomination.
Likewise, where the blanks are left in an
affidavit, nomination can be rejected there and
then. In other cases where detailed enquiry is
needed, it would depend upon the outcome
thereof, in an election petition, as to whether
the nomination was properly accepted or it was
a case of improper acceptance. Once it is found
that it was a case of improper acceptance, as
there was misinformation or suppression of
material information, one can state that question
of rejection in such a case was only deferred to
a later date. When the Court gives such a
finding, which would have resulted in rejection,
the effect would be same, namely, such a
candidate was not entitled to contest and the
election is void. Otherwise, it would be an
anomalous situation that even when criminal
360
proceedings under Section 125-A of the Act can
be initiated and the selected candidate is
criminally prosecuted and convicted, but the
result of his election cannot be questioned. This
cannot be countenanced."
In the case of Krishnamoorthy -Vrs.- Sivakumar
and Others reported in (2015) 3 Supreme Court Cases
467, the Hon'ble Supreme Court held as follows:-
"1. In a respectable and elevated constitutional
democracy purity of election, probity in
governance, sanctity of individual dignity,
sacrosanctity of rule of law, certainty and
sustenance of independence of judiciary,
efficiency and acceptability of bureaucracy,
credibility of institutions, integrity and
respectability of those who run the institutions
and prevalence of mutual deference among all
the wings of the State are absolutely significant,
in a way, imperative. They are not only to be
treated as essential concepts and remembered
as glorious precepts but also to be practised so
that in the conduct of every individual they are
concretely and fruitfully manifested. The crucial
recognised ideal which is required to be realised
is eradication of criminalisation of politics and
corruption in public life. When criminality enters
into the grass root level as well as at the higher
levels there is a feeling that "monstrosity" is
361
likely to wither away the multitude and
eventually usher in a dreadful fear that would
rule supreme creating an incurable chasm in the
spine of the whole citizenry. In such a situation
the generation of today, in its effervescent
ambition and volcanic fury, smothers the hopes,
aspirations and values of tomorrow's generation
and contaminate them with the idea to pave the
path of the past, possibly thinking, that is the
noble tradition and corruption can be a way of
life and one can get away with it by a well
decorated exterior. But, an intervening and
pregnant one, there is a great protector, and an
unforgiving one, on certain occasions and some
situations, to interdict--"The law", the mightiest
sovereign in a civilised society.
2. The prelude, we are disposed to think, has
become a necessity, as, in the case at hand, we
are called upon to decide, what constitutes
"undue influence" in the context of Section 260
of the Tamil Nadu Panchayats Act, 1994 (for
short "the 1994 Act") which has adopted the
similar expression as has been used under
Section 123(2) of the Representation of the
People Act, 1951 (for brevity "the 1951 Act")
thereby making the delineation of great
significance, for our interpretation of the
aforesaid words shall be applicable to election
law in all spheres.
362
3. The instant case is a case of non-disclosure of
full particulars of criminal cases pending against
a candidate, at the time of filing of nomination
and its eventual impact when the election is
challenged before the Election Tribunal. As the
factual score is exposited the appellant was
elected as the President of Thekampatti
Panchayat, Mettupalayam Taluk, Coimbatore
District in the State of Tamil Nadu in the
elections held for the said purpose on 13-10-
2006. The validity of the election was called in
question on the sole ground that he had filed a
false declaration suppressing the details of
criminal cases pending trial against him and,
therefore, his nomination deserved to be
rejected by the Returning Officer before the
District Court, Coimbatore in Election OP No.
296 of 2006.
xxx xxx xxx
7. In this backdrop, the election of the first
respondent was sought to be declared to be
invalid with certain other consequential reliefs.
In the counter-statement filed by the elected
candidate, a stand was put forth that the
election petitioner though was present at the
time of scrutiny of the nomination papers, had
failed to raise any objection and, in any case, he
had mentioned all the necessary details in the
363
nomination papers perfectly. It was further set
forth as follows:
"All the averments stated in the 3rd
paragraph of the petition is false and
hereby denied. The averment stated
that the first respondent had
deliberately omitted to provide the
details of charge-sheets having been
filed against him which have been on
file in eight cases is false and hereby
denied. It is humbly submitted that this
respondent has clearly mentioned
about the case pending in Cr. No. 10 of
2001 pending before JM No. 4 at p. 2
in details of candidate. Therefore, the
abovesaid averments are false,
misleading and unsustainable."
8. The Principal District Judge of Coimbatore, the
Election Tribunal, adverted to the allegations,
the ocular and the documentary evidence that
have been brought on record and came to hold
that nomination papers filed by the appellant,
the first respondent to the election petition,
deserved to be rejected and, therefore, he could
not have contested the election, and accordingly
he declared the election as null and void and
ordered for re-election of the post of the
President in question. The said order was
challenged in revision before the High Court.
364
9. In revision, the High Court referred to the
decisions in Union of India v. Assn. for
Democratic Reforms, People's Union for Civil
Liberties v. Union of India, notification issued by
the Election Commission of India and the
notification of the State Election Commission,
Sections 259 and 260 of the 1994 Act and
adverted to the issues whether there was
suppression by the elected candidate and in that
context referred to the "Form" to be filled up by
a candidate as per the Notification dated 1-9-
2006 and opined that an element of sanctity and
solemnity is attached to the said declaration, by
the very fact that it is required to be in the form
of an affidavit sworn and attested in a particular
manner. The High Court emphasised on the part
of the verification containing the declaration that
"nothing material has been concealed". On the
aforesaid analysis, the High Court held that the
elected candidate had not disclosed the full and
complete information. Thereafter, the High Court
referred to the authority in Assn. for Democratic
Reforms, incorporation of Sections 33-A and 44-
A in the 1951 Act, Rule 4-A of the Conduct of
Elections Rules, 1961 and Form 26 to the said
Rules, Section 125-A of the 1951 Act, the
definition of "affidavit" as per Section 3(3) of the
General Clauses Act, 1897, the conceptual
meaning of "oath", Section 8 of the Oaths Act,
1969 and scanned the anatomy of Sections 259
365
and 260 of the 1994 Act and the principles that
have been set out in various decisions of this
Court and opined that the non-disclosure of full
and complete information relating to his
implication in criminal cases amounted to an
attempt to interfere with the free exercise of
electoral right which would fall within the
meaning of "undue influence" and consequently
"corrupt practice" under Section 259(1)(b) read
with Section 260(2) of the 1994 Act. Being of
this view, the High Court agreed with the
ultimate conclusion of the Tribunal, though for a
different reason.
xxx xxx xxx
12. The issue of disclosure, declaration and filing
of the affidavit in this regard has a history,
albeit, a recent one. Therefore, one is bound to
sit in a time machine. In Assn. for Democratic
Reforms, the Court posed the following
important question: (SCC p. 300, para 1)
"1....in a nation wedded to republican
and democratic form of Government,
where election as a Member of
Parliament or as a Member of Legislative
Assembly is of utmost importance for
governance of the country, whether,
before casting votes, voters have a right
to know relevant particulars of their
366
candidates? Further connected question
is -- whether the High Court had
jurisdiction to issue directions, as stated
below, in a writ petition filed under
Article 226 of the Constitution of India?"
xxx xxx xxx
14. After so holding, the Court posed a question
whether the Election Commission is empowered
to issue directions? Be it noted, such a direction
was ordered by the High Court of Delhi and in
that context the Court relied upon Mohinder
Singh Gill v. Chief Election Commr., Kanhiya Lal
Omar v. R.K. Trivedi, Common Cause v. Union of
India and opined thus: (Assn. for Democratic
Reforms case, SCC p. 317, para 38)
"38. If right to telecast and right to view
sport games and the right to impart
such information is considered to be
part and parcel of Article 19(1)(a), we
fail to understand why the right of a
citizen/voter -- a little man -- to know
about the antecedents of his candidate
cannot be held to be a fundamental
right under Article 19(1)(a). In our view,
democracy cannot survive without free
and fair election, without free and fairly
informed voters. Votes cast by
uninformed voters in favour of X or Y
367
candidate would be meaningless. As
stated in the aforesaid passage, one-
sided information, disinformation,
misinformation and non-information, all
equally create an uninformed citizenry
which makes democracy a farce.
Therefore, casting of a vote by a
misinformed and non-informed voter or
a voter having one-sided information
only is bound to affect the democracy
seriously. Freedom of speech and
expression includes right to impart and
receive information which includes
freedom to hold opinions. Entertainment
is implied in freedom of 'speech and
expression' and there is no reason to
hold that freedom of speech and
expression would not cover right to get
material information with regard to a
candidate who is contesting election for
a post which is of utmost importance in
the democracy."
15. In this regard, a reference was made to a
passage from P.V. Narasimha Rao v. State,
jurisdiction of the Election Commission and
ultimately the Court issued the following
directions: (Assn. for Democratic Reforms case,
SCC p. 322, para 48)
368
"48. The Election Commission is
directed to call for information on
affidavit by issuing necessary order in
exercise of its power under Article 324
of the Constitution of India from each
candidate seeking election to Parliament
or a State Legislature as a necessary
part of his nomination paper, furnishing
therein, information on the following
aspects in relation to his/her
candidature:
(1) Whether the candidate is
convicted/acquitted/discharged of any
criminal offence in the past--if any,
whether he is punished with
imprisonment or fine.
(2) Prior to six months of filing of
nomination, whether the candidate is
accused in any pending case, of any
offence punishable with imprisonment
for two years or more, and in which
charge is framed or cognizance is taken
by the court of law. If so, the details
thereof.
(3) The assets (immovable, movable,
bank balance, etc.) of a candidate and
of his/her spouse and that of
dependants.
369
(4) Liabilities, if any, particularly
whether there are any overdues of any
public financial institution or government
dues.
(5) The educational qualifications of the
candidate."
xxx xxx xxx
18. Though various issues were raised in the
said case, yet we are really to see what has
been stated with regard to the disclosure, and
the Ordinance issued after the judgment. M.B.
Shah, J., in his ultimate analysis held as follows:
(People's Union for Civil Liberties case, SCC pp.
452-53, para 78)
"78. What emerges from the above
discussion can be summarised thus:
(A) The legislature can remove the basis
of a decision rendered by a competent
court thereby rendering that decision
ineffective but the legislature has no
power to ask the instrumentalities of the
State to disobey or disregard the
decisions given by the court. A
declaration that an order made by a
court of law is void is normally a part of
the judicial function. The legislature
cannot declare that decision rendered by
370
the Court is not binding or is of no
effect.
It is true that the legislature is
entitled to change the law with
retrospective effect which forms the
basis of a judicial decision. This exercise
of power is subject to constitutional
provision, therefore, it cannot enact a
law which is violative of fundamental
right.
(B) Section 33-B which provides that
notwithstanding anything contained in
the judgment of any court or directions
issued by the Election Commission, no
candidate shall be liable to disclose or
furnish any such information in respect
of his election which is not required to
be disclosed or furnished under the Act
or the Rules made thereunder, is on the
face of it beyond the legislative
competence, as this Court has held that
the voter has a fundamental right under
Article 19(1)(a) to know the antecedents
of a candidate for various reasons
recorded in the earlier judgment as well
as in this judgment.
The amended Act does not wholly
cover the directions issued by this
371
Court. On the contrary, it provides that
a candidate would not be bound to
furnish certain information as directed
by this Court.
(C) The judgment rendered by this
Court in Assn. for Democratic Reforms
has attained finality, therefore, there is
no question of interpreting constitutional
provision which calls for reference under
Article 145(3).
(D) The contention that as there is no
specific fundamental right conferred on
a voter by any statutory provision to
know the antecedents of a candidate,
the directions given by this Court are
against the statutory provisions is, on
the face of it, without any substance. In
an election petition challenging the
validity of an election of a particular
candidate, the statutory provisions
would govern respective rights of the
parties. However, voters' fundamental
right to know the antecedents of a
candidate is independent of statutory
rights under the election law. A voter is
first citizen of this country and apart
from statutory rights, he is having
fundamental rights conferred by the
Constitution. Members of a democratic
372
society should be sufficiently informed
so that they may cast their votes
intelligently in favour of persons who are
to govern them. Right to vote would be
meaningless unless the citizens are well
informed about the antecedents of a
candidate. There can be little doubt that
exposure to public gaze and scrutiny is
one of the surest means to cleanse our
democratic governing system and to
have competent legislatures.
(E) It is established that fundamental
rights themselves have no fixed content,
most of them are empty vessels into
which each generation must pour its
content in the light of its experience.
The attempt of the Court should be to
expand the reach and ambit of the
fundamental rights by process of judicial
interpretation. During the last more than
half a decade, it has been so done by
this Court consistently. There cannot be
any distinction between the fundamental
rights mentioned in Chapter III of the
Constitution and the declaration of such
rights on the basis of the judgments
rendered by this Court."
Being of this view, he declared Section 33-B as
illegal, null and void.
373
xxx xxx xxx
21. The purpose of referring to the aforesaid
authorities in extenso is to focus how this Court
has given emphasis on the rights of a voter to
know about the antecedents of a candidate,
especially, the criminal antecedents, contesting
the election. With the efflux of time, the Court in
subsequent decisions has further elaborated the
right to know in the context of election, as
holding a free and fair election stabilises the
democratic process which leads to good
governance. In this regard, reference to a recent
three-Judge Bench decision in Resurgence India
v. Election Commission of India is
advantageously fruitful. A writ petition was filed
under Article 32 of the Constitution of India to
issue specific directions to effectuate the
meaningful implementation of the judgments
rendered by this Court in Assn. for Democratic
Reforms, People's Union for Civil Liberties and
also to direct the respondents therein to make it
compulsory for the Returning Officers to ensure
that the affidavits filed by the contestants are
complete in all respects and to reject the
affidavits having blank particulars. The Court
referred to the background, relief sought and
Sections 33-A, 36 and 125-A of the 1951 Act. A
reference was also made to the authority in
Shaligram Shrivastava v. Naresh Singh Patel.
374
xxx xxx xxx
23. It is apt to note here that the Court referred
to para 73 of the judgment in People's Union for
Civil Liberties case and elaborating further ruled
thus: (Resurgence India case, SCC p. 202, para
27)
"27. If we accept the contention raised
by the 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 on a 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 Assn. for
Democratic Reforms."
xxx xxx xxx
26. The fear to disclose details of pending cases
has been haunting the people who fight the
elections at all levels. Fear, compels a man to
take the abysmal and unfathomable route;
whereas courage, mother of all virtues, not only
shatters fears, but atrophies all that come in its
way without any justification and paralyses
everything that does not deserve to have
375
locomotion. Democracy nurtures and dearly
welcomes transparency. Many a cobweb is
woven or endeavoured to be woven to keep at
bay what sometimes becomes troublesome.
Therefore, Rules 41(2) and (3) and 49-O of the
Conduct of Elections Rules, 1961 (for short "the
Rules") came into force, to give some space to
the candidates and deny the advantage to the
voters. At that juncture, a writ petition under
Article 32 of the Constitution of India was filed
by the People's Union for Civil Liberties (PUCL)
and another, challenging the constitutional
validity of the said Rules to the extent that the
said provisions violate the secrecy of voting
which is fundamental to free and fair elections
and is required to be maintained as per Section
128 of the 1951 Act and Rules 39, 49-M of the
Rules. Relevant parts of Rule 41 and Rule 49-O
read as follows:
"41. Spoilt and returned ballot papers.--
(1) ***
(2) If an elector after obtaining a ballot
paper decides not to use it, he shall
return it to the Presiding Officer, and the
ballot paper so returned and the
counterfoil of such ballot paper shall be
marked as 'Returned: cancelled' by the
Presiding Officer.
376
(3) All ballot papers cancelled under
sub-rule (1) or sub-rule (2) shall be kept
in a separate packet.
* * *
49-O.Elector deciding not to vote.--If an
elector, after his electoral roll number
has been duly entered in the register of
voters in Form 17-A and has put his
signature or thumb impression thereon
as required under sub-rule (1) of Rule
49-L, decided not to record his vote, a
remark to this effect shall be made
against the said entry in Form 17-A by
the Presiding Officer and the signature
or thumb impression of the elector shall
be obtained against such remark."
27. Testing the validity of the aforesaid Rules, a
three-Judge Bench in People's Union for Civil
Liberties v. Union of India after dwelling upon
many a facet opined thus: (SCC pp. 27-28, para
53)
"53. Democracy being the basic feature
of our constitutional set-up, there can
be no two opinions that free and fair
elections would alone guarantee the
growth of a healthy democracy in the
country.
377
The 'fair' denotes equal
opportunity to all people. Universal adult
suffrage conferred on the citizens of
India by the Constitution has made it
possible for these millions of individual
voters to go to the polls and thus
participate in the governance of our
country. For democracy to survive, it is
essential that the best available men
should be chosen as people's
representatives for proper governance of
the country. This can be best achieved
through men of high moral and ethical
values, who win the elections on a
positive vote. Thus in a vibrant
democracy, the voter must be given an
opportunity to choose none of the above
(NOTA) button, which will indeed compel
the political parties to nominate a sound
candidate. This situation palpably tells
us the dire need of negative voting."
xxx xxx xxx
29. The aforesaid decisions pronounce beyond
any trace of doubt that a voter has a
fundamental right to know about the candidates
contesting the elections as that is essential and
a necessary concomitant for a free and fair
election. In a way, it is the first step. The voter
is entitled to make a choice after coming to
378
know the antecedents of a candidate a requisite
for making informed choice. It has been held by
Shah, J. in People's Union for Civil Liberties (SCC
p. 453, para 78) that the voter's fundamental
right to know the antecedents of a candidate is
independent of statutory requirement under the
election law, for a voter is first a citizen of this
country and apart from statutory rights, he has
the fundamental right to know and be informed.
Such a right to know is conferred by the
Constitution.
xxx xxx xxx
34. In Anukul Chandra Pradhan v. Union of
India, the Court was dealing with the provisions
made in the election law which excluded persons
with criminal background and the kind specified
therein, from the elections as candidates and
voters. In that context, the Court held thus:
(SCC p. 5, para 5)
"5....The object is to prevent
criminalisation of politics and maintain
probity in elections. Any provision
enacted with a view to promote this
object must be welcomed and upheld as
subserving the constitutional purpose.
The elbow room available to the
legislature in classification depends on
the context and the object for enactment
379
of the provision. The existing conditions
in which the law has to be applied cannot
be ignored in adjudging its validity
because it is relatable to the object
sought to be achieved by the legislation.
Criminalisation of politics is the bane of
society and negation of democracy. It is
subversive of free and fair elections which
is a basic feature of the Constitution.
Thus, a provision made in the election
law to promote the object of free and fair
elections and facilitate maintenance of
law and order which are the essence of
democracy must, therefore, be so
viewed. More elbow room to the
legislature for classification has to be
available to achieve the professed
object."
Be it stated, the Court did not accept the
challenge to the constitutional validity of sub-
section (5) of Section 62 of the 1951 Act which
was amended to provide that no person shall
vote at any election if he is confined in prison,
whether under a sentence of imprisonment, or
under lawful confinement, or otherwise or is in
the lawful custody of the police. A proviso was
carved out to exclude a person subjected to
preventive detention under any law for the time
being in force.
380
xxx xxx xxx
36. Criminalisation of politics is absolutely
unacceptable. Corruption in public life is
indubitably deprecable. The citizenry has been
compelled to stand as a silent, deaf and mute
spectator to the corruption either being helpless
or being resigned to fate. Commenting on
corruption, the court in Niranjan Hemchandra
Sashittal v. State of Maharashtra, was
constrained to say thus: (SCC pp. 654-55, para
26)
"26. It can be stated without any fear of
contradiction that corruption is not to be
judged by degree, for corruption mothers
disorder, destroys societal will to
progress, accelerates undeserved
ambitions, kills the conscience, jettisons
the glory of the institutions, paralyses the
economic health of a country, corrodes
the sense of civility and mars the
marrows of governance. It is worth
noting that immoral acquisition of wealth
destroys the energy of the people
believing in honesty, and history records
with agony how they have suffered. The
only redeeming fact is that collective
sensibility respects such suffering as it is
in consonance with the constitutional
morality."
381
xxx xxx xxx
42. Mr Harish Salve, learned Senior Counsel,
who was requested to assist the Court, would
unequivocally submit that it would come within
the arena of corrupt practice. The propositions
that have been presented by the learned Amicus
Curiae are as follows:
A. The notion of what constitutes the
free exercise of any electoral right
cannot be static. The exercise of
electoral rights in a democracy is central
to the very existence of a democracy.
The notion of the free exercise of any
electoral right is thus not something that
can be ossified--it must evolve with the
constitutional jurisprudence and be
judged by contemporary constitutional
values.
B. The disclosure by a candidate of his
character antecedents was premised by
this Court on the right of an elector to
know--which right flows from the right
to the informed exercise of an electoral
right.
C. Section 123(2) of the 1951 Act
necessarily implies that any influence on
the mind of the voter that interferes
382
with a free exercise of the electoral right
is a corrupt practice. Misleading voters
as to character antecedents of a
candidate in contemporary times is a
serious interference with the free
exercise of a voter's right.
D. In the context of disclosure of
information, if the falsity or suppression
of information relating to the criminal
antecedents of a candidate is serious
enough to mislead voters as to his
character, it would clearly influence a
voter in favour of a candidate. This
Court should take judicial notice of the
problem of criminalisation of politics--
which led this Court to ask Parliament to
seriously consider ameliorative changes
to the law.
E. Section 123 of the 1951 Act defines
"undue influence" in terms of
interference with the free exercise of an
electoral right. This result i.e.
interference with the free exercise of an
electoral right, may apply to a person or
a body of persons. As clarified in Ram
Dial v. Sant Lal, Section 123 does not
emphasise the individual aspect of the
exercise of such influence, but pays
regard to the use of such influence as
383
has the tendency to bring about the
result contemplated in the clause.
F. It is not every failure to disclose
information that would constitute an
undue influence. In the context of
criminal antecedents, the failure to
disclose the particulars of any charges
framed, cognizance taken, or conviction
for any offence that involves moral
turpitude would constitute an act that
causes undue influence upon the voters.
G. Purity of public life has its own
hallowedness and hence, there is
emphasis on the importance of truth in
giving information. Half truth is worse
than silence; it has the effect
potentiality to have a cacophony that
can usher in anarchy.
72. This Court had issued certain directions in
Assn. for Democratic Reforms and People's
Union for Civil Liberties. Section 33-A which has
been reproduced earlier is relatable to furnishing
of an information in respect of an offence
punishable with imprisonment for two years or
more in a pending case in which a charge has
been framed by the court of competent
jurisdiction. At this stage, it is appropriate to
refer to Section 169 of the 1951 Act, the same
384
being pertinent in the context. It reads as
under:
"169.Power to make rules.--(1)***
(2) In particular, and without prejudice to
the generality of the foregoing power,
such rules may provide for all or any of
the following matters, namely--
(a) the form of affidavit under sub-
section (2) of Section 33-A;
(aa) the duties of Presiding Officers and
polling officers at polling stations;
(aaa) the form of contribution report;
(b) the checking of voters by reference to
the electoral roll;
(bb) the manner of allocation of equitable
sharing of time on the cable television
network and other electronic media;
(c) the manner in which votes are to be
given both generally and in the case of
illiterate voters or voters under physical
or other disability;
(d) the manner in which votes are to be
given by a Presiding Officer, polling
officer, polling agent or any other person,
who being an elector for a constituency is
385
authorised or appointed for duty at a
polling station at which he is not entitled
to vote;
(e) the procedure to be followed in
respect of the tender of vote by a person
representing himself to be an elector
after another person has voted as such
elector;
(ee) the manner of giving and recording
of votes by means of voting machines
and the procedure as to voting to be
followed at polling stations where such
machines are used;
(f) the procedure as to voting to be
followed at elections held in accordance
with the system of proportional
representation by means of the single
transferable vote;
(g) the scrutiny and counting of votes
including cases in which a recount of the
votes may be made before the
declaration of the result of the election;
(gg) the procedure as to counting of
votes recorded by means of voting
machines;
386
(h) the safe custody of ballot boxes,
voting machines, ballot papers and other
election papers, the period for which such
papers shall be preserved and the
inspection and production of such papers;
(hh) the material to be supplied by the
Government to the candidates of
recognised political parties at any election
to be held for the purposes of constituting
the House of the People or the Legislative
Assembly of a State;
(i) any other matter required to be
prescribed by this Act."
73. Rule 4-A has been inserted in the Conduct of
Elections Rules, 1961 (for short "the 1961
Rules") w.e.f. 3-9-2002. Rule 4-A reads as
follows:
"4-A. Form of affidavit to be filed at the
time of delivering nomination paper.--The
candidate or his proposer, as the case
may be, shall, at the time of delivering to
the Returning Officer the nomination
paper under sub-section (1) of Section 33
of the Act, also deliver to him an affidavit
sworn by the candidate before a
Magistrate of the First Class or a Notary
in Form 26."
387
xxx xxx xxx
75. On a perusal of the aforesaid format, it is
clear as crystal that the details of certain
categories of the offences in respect of which
cognizance has been taken or charges have
been framed must be given/furnished. This Rule
is in consonance with Section 33-A of the 1951
Act. Section 33(1) envisages that information
has to be given in accordance with the Rules.
This is in addition to the information to be
provided as per Sections 33(1)(i) and (ii). The
affidavit that is required to be filed by the
candidate stipulates mentioning of cases
pending against the candidate in which charges
have been framed by the Court for the offences
punishable with imprisonment for two years or
more and also the cases which are pending
against him in which cognizance has been taken
by the court other than the cases which have
been mentioned in clause (5)(i) of Form 26.
Apart from the aforesaid, clause (6) of Form 26
deals with conviction.
76. The singular question is, if a candidate, while
filing his nomination paper does not furnish the
entire information what would be the resultant
effect. In Resurgence India, the Court has held
that if a nomination paper is filed with
particulars left blank, the Returning Officer is
entitled to reject the nomination paper. The
388
Court has proceeded to state that the candidate
must take the minimum effort to explicitly
remark as "Nil" or "Not Applicable" or "Not
known" in the columns. In the said case, it has
been clarified that para 73 of People's Union for
Civil Liberties case will not come in the way of
Returning Officer to reject the nomination paper
when the affidavit has been filed with blank
particulars. It is necessary to understand what
has been stated in para 73 of People's Union for
Civil Liberties case, how it has been understood
and clarified in Resurgence India.
xxx xxx xxx
79. Both the paragraphs when properly
understood relate to the stage of scrutiny of the
nomination paper. In this context, a question
may arise if a candidate fills up all the
particulars relating to his criminal antecedents
and the nomination is not liable for rejection in
law, what would be the impact. At the stage of
scrutiny, needless to say, even if objections are
raised, that possibly cannot be verified by the
Returning Officer. Therefore, we do not intend to
say that if objections are raised, the nomination
paper would be liable for rejection. However, we
may hasten to clarify that it is not the issue
involved in the present case. The controversy
which has emanated in this case is whether non-
furnishing of the information while filing an
389
affidavit pertaining to criminal cases, especially
cases involving heinous or serious crimes or
relating to corruption or moral turpitude would
tantamount to corrupt practice, regard being
had to the concept of undue influence. We have
already referred to the authorities in Assn. for
Democratic Reforms and People's Union for Civil
Liberties. Emphasis on all these cases has been
given with regard to essential concept of
democracy, criminalisation of politics and
preservation of a healthy and growing
democracy. The right of a voter to know has
been accentuated. As a part of that right of a
voter, not to vote in favour of any candidate has
been emphasised by striking down Rules 41(2),
41(3) and 49-O of the Rules. In Assn. for
Democratic Reforms, it has been held thus:
(SCC pp. 309-10, para 22)
"22. For health of democracy and fair
election, whether the disclosure of assets
by a candidate, his/her qualification and
particulars regarding involvement in
criminal cases are necessary for
informing voters, maybe illiterate, so that
they can decide intelligently, whom to
vote for. In our opinion, the decision of
even an illiterate voter, if properly
educated and informed about the
contesting candidate, would be based on
390
his own relevant criteria of selecting a
candidate. In democracy, periodical
elections are conducted for having
efficient governance for the country and
for the benefit of citizens--voters. In a
democratic form of Government, voters
are of utmost importance. They have the
right to elect or re-elect on the basis of
the antecedents and past performance of
the candidate. The voter has the choice of
deciding whether holding of educational
qualification or holding of property is
relevant for electing or re-electing a
person to be his representative. Voter has
to decide whether he should cast vote in
favour of a candidate who is involved in a
criminal case. For maintaining purity of
elections and a healthy democracy,
voters are required to be educated and
well informed about the contesting
candidates. Such information would
include assets held by the candidate, his
qualifications including educational
qualification and antecedents of his life
including whether he was involved in a
criminal case and if the case is decided--
its result, if pending--whether charge is
framed or cognizance is taken by the
court. There is no necessity of
391
suppressing the relevant facts from the
voters."
(emphasis supplied)
xxx xxx xxx
82. Having stated about the need for vibrant and
healthy democracy, we think it appropriate to
refer to the distinction between disqualification
to contest an election and the concept or
conception of corrupt practice inhered in the
words "undue influence". Section 8 of the 1951
Act stipulates that conviction under certain
offences would disqualify a person for being a
Member either of the House of Parliament or the
Legislative Assembly or Legislative Council of a
State. We repeat at the cost of repetition unless
a person is disqualified under law to contest the
election, he cannot be disqualified to contest.
But the question is when an election petition is
filed before an Election Tribunal or the High
Court, as the case may be, questioning the
election on the ground of practising corrupt
practice by the elected candidate on the
foundation that he has not fully disclosed the
criminal cases pending against him, as required
under the Act and the Rules and the affidavit
that has been filed before the Returning Officer
is false and reflects total suppression, whether
such a ground would be sustainable on the
392
foundation of undue influence. We may give an
example at this stage. A candidate filing his
nomination paper while giving information
swears an affidavit and produces before the
Returning Officer stating that he has been
involved in a case under Section 354 IPC and
does not say anything else though cognizance
has been taken or charges have been framed for
the offences under the Prevention of Corruption
Act, 1988 or offences pertaining to rape,
murder, dacoity, smuggling, land grabbing, local
enactments like the Maharashtra Control of
Organised Crime Act, 1999, U.P. Control of
Goondas Act, 1970, embezzlement, attempt to
murder or any other offence which may come
within the compartment of serious or heinous
offences or corruption or moral turpitude. It is
apt to note here that when an FIR is filed a
person filing a nomination paper may not be
aware of lodgement of the FIR but when
cognizance is taken or charge is framed, he is
definitely aware of the said situation. It is within
his special knowledge. If the offences are not
disclosed in entirety, the electorate remain in
total darkness about such information. It can be
stated with certitude that this can definitely be
called antecedents for the limited purpose, that
is, disclosure of information to be chosen as a
representative to an elected body.
393
xxx xxx xxx
86. From the aforesaid, it is luculent that free
exercise of any electoral right is paramount. If
there is any direct or indirect interference or
attempt to interfere on the part of the candidate,
it amounts to undue influence. Free exercise of
the electoral right after the recent
pronouncements of this Court and the
amendment of the provisions are to be
perceived regard being had to the purity of
election and probity in public life which have
their hallowedness. A voter is entitled to have an
informed choice. A voter who is not satisfied
with any of the candidates, as has been held in
People's Union for Civil Liberties, can opt not to
vote for any candidate. The requirement of a
disclosure, especially the criminal antecedents,
enables a voter to have an informed and
instructed choice. If a voter is denied of the
acquaintance to the information and deprived of
the condition to be apprised of the entire gamut
of criminal antecedents relating to heinous or
serious offences or offence of corruption or
moral turpitude, the exercise of electoral right
would not be an advised one. He will be
exercising his franchisee with the misinformed
mind. That apart, his fundamental right to know
also gets nullified. The attempt has to be
perceived as creating an impediment in the mind
394
of a voter, who is expected to vote to make a
free, informed and advised choice. The same is
sought to be scuttled at the very
commencement. It is well settled in law that
election covers the entire process from the
issuance of the notification till the declaration of
the result. This position has been clearly settled
in Hari Vishnu Kamath v. Ahmad Ishaque,
Election Commission of India v. Shivaji and V.S.
Achuthanandan v. P.J. Francis. We have also
culled out the principle that corrupt practice can
take place prior to voting. The factum of non-
disclosure of the requisite information as regards
the criminal antecedents, as has been stated
hereinabove is a stage prior to voting.
xxx xxx xxx
91. The purpose of referring to the instructions
of the Election Commission is that the affidavit
sworn by the candidate has to be put in public
domain so that the electorate can know. If they
know the half truth, as submits Mr Salve, it is
more dangerous, for the electorate is denied of
the information which is within the special
knowledge of the candidate. When something
within special knowledge is not disclosed, it
tantamounts to fraud, as has been held in S.P.
Chengalvaraya Naidu v. Jagannath. While filing
the nomination form, if the requisite
information, as has been highlighted by us,
395
relating to criminal antecedents, is not given,
indubitably, there is an attempt to suppress,
effort to misguide and keep the people in dark.
This attempt undeniably and undisputedly is
undue influence and, therefore, amounts to
corrupt practice. It is necessary to clarify here
that if a candidate gives all the particulars and
despite that he secures the votes that will be an
informed, advised and free exercise of right by
the electorate. That is why there is a distinction
between a disqualification and the corrupt
practice. In an election petition, the election
petitioner is required to assert about the cases
in which the successful candidate is involved as
per the rules and how there has been non-
disclosure in the affidavit. Once that is
established, it would amount to corrupt practice.
We repeat at the cost of repetition, it has to be
determined in an election petition by the Election
Tribunal.
92. Having held that, we are required to advert
to the factual matrix at hand. As has been noted
hereinbefore, the appellant was involved in 8
cases relating to embezzlement. The State
Election Commission had issued a notification.
The relevant part of the said notification reads
as under:
"1. Every candidate at the time of filing
his nomination paper for any election or
396
casual election for electing a member or
members or Chairperson or
Chairpersons of any panchayat or
municipality, shall furnish full and
complete information in regard to all the
five matters referred to in Para 5 of the
Preamble, in an affidavit or declaration,
as the case may be, in the format
annexed hereto:
Provided that having regard to the
difficulties in swearing an affidavit in a
village, a candidate at the election to a
Ward Member of Village Panchayat
under the Tamil Nadu Panchayats Act,
1994 shall, instead of filing an affidavit,
file before the Returning Officer a
declaration in the same format annexed
to this order.
2. The said affidavit by each candidate
shall be duly sworn before a Magistrate
of the First Class or a Notary Public or a
Commissioner of Oaths appointed by the
High Court of the State or before an
officer competent for swearing an
affidavit.
3. Non-furnishing of the affidavit or
declaration, as the case may be, by any
candidate shall be considered to be
397
violation of this order and the
nomination of the candidate concerned
shall be liable for rejection by the
Returning Officer at the time of scrutiny
of nomination for such non-furnishing of
the affidavit/declaration, as the case
may be.
4. The information so furnished by each
candidate in the aforesaid affidavit or
declaration as the case may be, shall be
disseminated by the respective
Returning Officers by displaying a copy
of the affidavit on the noticeboard of his
office and also by making the copies
thereof available to all other candidates
on demand and to the representatives of
the print and electronic media.
5. If any rival candidate furnished
information to the contrary, by means of
a duly sworn affidavit, then such
affidavit of the rival candidate shall also
be disseminated along with the affidavit
of the candidate concerned in the
manner directed above.
6. All the Returning Officers shall ensure
that the copies of the
affidavit/declaration, prescribed herein
by the Tamil Nadu State Election
398
Commission in the Annexure shall be
delivered to the candidates along with
the forms of nomination papers as part
of the nomination papers."
94. In view of the above, we would like to sum
up our conclusions:
94.1. Disclosure of criminal antecedents of a
candidate, especially, pertaining to heinous or
serious offence or offences relating to corruption
or moral turpitude at the time of filing of
nomination paper as mandated by law is a
categorical imperative.
94.2. When there is non-disclosure of the
offences pertaining to the areas mentioned in
the preceding clause, it creates an impediment
in the free exercise of electoral right.
94.3. Concealment or suppression of this nature
deprives the voters to make an informed and
advised choice as a consequence of which it
would come within the compartment of direct or
indirect interference or attempt to interfere with
the free exercise of the right to vote by the
electorate, on the part of the candidate.
94.4. As the candidate has the special
knowledge of the pending cases where
cognizance has been taken or charges have
been framed and there is a non-disclosure on his
399
part, it would amount to undue influence and,
therefore, the election is to be declared null and
void by the Election Tribunal under Section
100(1)(b) of the 1951 Act.
94.5. The question whether it materially affects
the election or not will not arise in a case of this
nature."
In the case of Public Interest Foundation & Ors.
-Vrs.- Union of India & Anr. reported in (2019) 3 Supreme
Court Cases 224, the Constitution Bench of the Hon'ble
Supreme Court, for eradicating criminal elements from the
politics, issued a slew of directions as hereunder:
"116. Keeping the aforesaid in view, we think
appropriate to issue the following directions
which are in accord with the decisions of this
Court.
116.1. Each contesting candidate shall fill up the
form as provided by the Election Commission
and the form must contain all the particulars as
required therein.
116.2. It shall state, in bold letters, with regard
to the criminal cases pending against the
candidate.
116.3. If a candidate is contesting an election on
the ticket of a particular party, he/she is
400
required to inform the party about the criminal
cases pending against him/her.
116.4. The political party concerned shall be
obligated to put up on its website the aforesaid
information pertaining to candidates having
criminal antecedents.
116.5. The candidate as well as the political
party concerned shall issue declaration in the
widely circulated newspapers in the locality
about the antecedents of the candidate and also
give wide publicity in the electronic media. When
we say wide publicity, we mean that the same
shall be done at least thrice after filing the
nomination papers.
117. These directions ought to be implemented
in true spirit and right earnestness in a bid to
strengthen the democratic set-up. There may be
certain gaps, or lacunae in a law or legislative
enactment which can definitely be addressed by
the legislature if it is backed by the proper
intent, strong resolve and determined will of
right-thinking minds to ameliorate the situation.
It must also be borne in mind that the law
cannot always be found fault with for the lack of
its stringent implementation by the authorities
concerned. Therefore, it is the solemn
responsibility of all concerned to enforce the law
as well as the directions laid down by this Court
401
from time to time in order to infuse the culture
of purity in politics and in democracy and foster
and nurture an informed citizenry, for ultimately
it is the citizenry which decides the fate and
course of politics in a nation and thereby
ensures that "we shall be governed no better
than we deserve", and thus, complete
information about the criminal antecedents of
the candidates forms the bedrock of wise
decision making an informed choice by the
citizenry. Be it clearly stated that informed
choice is the cornerstone to have a pure and
strong democracy.
118. We have issued the aforesaid directions
with immense anguish, for the Election
Commission cannot deny a candidate to contest
on the symbol of a party. A time has come that
Parliament must make law to ensure that
persons facing serious criminal cases do not
enter into the political stream. It is one thing to
take cover under the presumption of innocence
of the accused but it is equally imperative that
persons who enter public life and participate in
law making should be above any kind of serious
criminal allegation. It is true that false cases are
foisted on prospective candidates, but the same
can be addressed by Parliament through
appropriate legislation. The nation eagerly waits
for such legislation, for the society has a
402
legitimate expectation to be governed by proper
constitutional governance. The voters cry for
systematic sustenance of constitutionalism. The
country feels agonised when money and muscle
power become the supreme power. Substantial
efforts have to be undertaken to cleanse the
polluted stream of politics by prohibiting people
with criminal antecedents so that they do not
even conceive of the idea of entering into
politics. They should be kept at bay."
In the case of Mairembam Prithviraj @ Prithviraj
Singh -Vrs.- Pukhrem Sharatchandra Singh reported in
(2017) 2 Supreme Court Cases 487, while dismissing the
appeal against the order of the Manipur High Court, which held
the election of the appellant to be void, the Hon'ble Supreme
Court has observed as follows:-
"2. A Notification was issued for election to the
10th Manipur Legislative Assembly on 4-1-2012.
The appellant belonging to the Indian National
Congress (INC) and the respondent who was
sponsored by the National Congress Party (NCP)
filed their nominations within the time
prescribed. There was no other nomination filed.
The respondent objected to the nomination of
the appellant at the time of scrutiny on the
ground that a false declaration relating to
educational qualification was made by the
403
appellant. The Returning Officer directed the
appellant to submit documents in proof of his
educational qualification as declared in the
affidavit filed under Form 26. The appellant
failed to produce any document to prove his
educational qualification in spite of which the
Returning Officer accepted the nomination of the
appellant. Polling took place on 28-1-2012 and
the counting of votes was held on 6-3-2012. The
result was declared on the same day. The
appellant secured 14,521 votes and the
respondent secured 13,363 votes. The appellant
was declared elected as MLA, Moirang
constituency.
xxx xxx xxx
8. Two issues fall for our consideration in this
appeal which are:
8.1. (a) Whether a false declaration relating to
the educational qualification is a defect of
substantial character warranting rejection of a
nomination?
8.2. (b) Whether it is necessary to plead and
prove that the result was materially affected
when the nomination of the returned candidate
was found to have been improperly accepted,
more so, when there are only two candidates
contesting the election?
404
9. Chapter I of Part V of the Act deals with the
nomination of candidates. Section 33 of the Act
provides for presentation of nomination paper
and requirements of a valid nomination. A
nomination paper complete in the prescribed
form, signed by a candidate and by an elector of
the constituency as proposer should be delivered
to the Returning Officer within the prescribed
period. Section 33-A which was inserted by Act
72 of 2002 with effect from 24-8-2002
contemplates that a candidate has to provide
additional information, apart from the
information provided by him under Section
33(1). The information mentioned in Section 33-
A relates to the criminal antecedents of a
candidate. Section 36 deals with scrutiny of
nomination. Section 36(4) which is relevant for
adjudication of this case is as follows:
"36. Scrutiny of nomination.--(1)-(3)
* * *
(4) The Returning Officer shall not reject
any nomination paper on the ground of
any defect which is not of a substantial
character."
10. Rule 4-A of the Conduct of Election Rules,
1961 which was inserted with effect from 3-9-
2002 reads as under:
405
"4-A. Form of affidavit to be filed at
the time of delivering nomination
paper.--The candidate or his proposer, as
the case may be, shall, at the time of
delivering to the Returning Officer the
nomination paper under sub-section (1) of
Section 33 of the Act, also deliver to him
an affidavit sworn by the candidate before
a Magistrate of the First Class or a Notary
in Form 26."
11. A candidate has to file an affidavit along with
his nomination paper as prescribed in Form 26 in
which one of the columns pertains to the
educational qualification. Grounds for declaring
the election to be void are provided in Section
100 of the Act which is as under:
"100. Grounds for declaring election
to be void.--(1) Subject to the provisions
of sub-section (2) if the High Court is of
opinion--
(a) that on the date of his election a
returned candidate was not qualified, or
was disqualified, to be chosen to fill the
seat under the Constitution or this Act or
the Government of Union Territories Act,
1963 (20 of 1963); or
406
(b) that any corrupt practice has been
committed by a returned candidate or his
election agent or by any other person with
the consent of a returned candidate or his
election agent; or
(c) that any nomination has been
improperly rejected; or
(d) that the result of the election, insofar
as it concerns a returned candidate, has
been materially affected--
(i) by the improper acceptance of any
nomination, or
(ii) by any corrupt practice committed in
the interests of the returned candidate by
an agent other than his election agent, or
(iii) by the improper reception, refusal or
rejection of any vote or the reception of
any vote which is void, or
(iv) by any non-compliance with the
provisions of the Constitution or of this Act
or of any rules or orders made under this
Act,
the High Court shall declare the election of the
returned candidate to be void.
407
(2) If in the opinion of the High Court, a
returned candidate has been guilty by an
agent, other than his election agent, of
any corrupt practice but the High Court is
satisfied--
(a) that no such corrupt practice was
committed at the election by the candidate
or his election agent, and every such
corrupt practice was committed contrary to
the orders, and without the consent, of the
candidate or his election agent;
(b)***
(c) that the candidate and his election
agent took all reasonable means for
preventing the commission of corrupt
practices at the election; and
(d) that in all other respects the election
was free from any corrupt practice on the
part of the candidate or any of his agents,
then the High Court may decide that the election
of the returned candidate is not void."
13. Sir Winston Churchill underlining the
importance of a voter in a democratic form of
government stated as follows:
"At the bottom of all tributes paid to
democracy is the little man, walking into a
408
little booth, with a little pencil, making a
little cross on a little bit of paper -- no
amount of rhetoric or voluminous
discussion can possibly diminish the
overwhelming importance of the point."
xxx xxx xxx
17. It is clear from the law laid down by this
Court as stated above that every voter has a
fundamental right to know about the educational
qualification of a candidate. It is also clear from
the provisions of the Act, the Rules and Form 26
that there is a duty cast on the candidates to
give correct information about their educational
qualifications. It is not in dispute that the
appellant did not study MBA in the Mysore
University. It is the case of the appellant that
reference to MBA from Mysore University was a
clerical error. It was contended by the appellant
that he always thought of doing MBA by
correspondence course from Mysore University.
But, actually he did not do the course. The
question which has to be decided is whether the
declaration given by him in Form 26 would
amount to a defect of substantial nature
warranting rejection of his nomination.
xxx xxx xxx
409
19. The contention of the appellant that the
declaration relating to his educational
qualification in the affidavit is a clerical error
cannot be accepted. It is not an error committed
once. Since 2008, the appellant was making the
statement that he has an MBA degree. The
information provided by him in the affidavit filed
in Form 26 would amount to a false declaration.
The said false declaration cannot be said to be a
defect which is not substantial. He was given an
opportunity by the Returning Officer to produce
the relevant document in support of his
declaration. At least at that point of time he
should have informed the Returning Officer that
an error crept into the declaration. He did not do
so. The false declaration relating to his
educational qualification cannot be stated to be
not of a substantial character. It is no more res
integra that every candidate has to disclose his
educational qualification to subserve the right to
information of the voter. Having made a false
declaration relating to his educational
qualification, the appellant cannot be permitted
to contend that the declaration is not of a
substantial character. For the reasons stated
supra, we uphold the findings recorded by the
High Court that the false declaration relating to
the educational qualification made by the
appellant is substantial in nature.
410
xxx xxx xxx
23. It is clear from the above judgment in Durai
Muthuswami that there is a difference between
the improper acceptance of a nomination of a
returned candidate and the improper acceptance
of nomination of any other candidate. There is
also a difference between cases where there are
only two candidates in the fray and a situation
where there are more than two candidates
contesting the election. If the nomination of a
candidate other than the returned candidate is
found to have been improperly accepted, it is
essential that the election petitioner has to plead
and prove that the votes polled in favour of such
candidate would have been polled in his favour.
On the other hand, if the improper acceptance of
nomination is of the returned candidate, there is
no necessity of proof that the election has been
materially affected as the returned candidate
would not have been able to contest the election
if his nomination was not accepted. It is not
necessary for the respondent to prove that
result of the election insofar as it concerns the
returned candidate has been materially affected
by the improper acceptance of his nomination as
there were only two candidates contesting the
election and if the appellant's nomination is
declared to have been improperly accepted, his
election would have to be set aside without any
411
further enquiry and the only candidate left in the
fray is entitled to be declared elected.
xxx xxx xxx
26. Mere finding that there has been an
improper acceptance of the nomination is not
sufficient for a declaration that the election is
void under Section 100(1)(d). There has to be
further pleading and proof that the result of the
election of the returned candidate was materially
affected. But, there would be no necessity of any
proof in the event of the nomination of a
returned candidate being declared as having
been improperly accepted, especially in a case
where there are only two candidates in the fray.
If the returned candidate's nomination is
declared to have been improperly accepted it
would mean that he could not have contested
the election and that the result of the election of
the returned candidate was materially affected
need not be proved further. We do not find
substance in the submission of Mr Giri that the
judgment in Durai Muthuswami is not applicable
to the facts of this case. The submission that
Durai Muthuswami is a case of disqualification
under Section 9-A of the Act and, so, it is not
applicable to the facts of this case is also not
correct. As stated supra, the election petition in
that case was rejected on the ground of non-
compliance with Section 100(1)(d). The said
412
judgment squarely applies to this case on all
fours. We also do not find force in the
submission that the Act has to be strictly
construed and that the election cannot be
declared to be void under Section 100(1)(d)
without pleading and proof that the result of the
election was materially affected. There is no
requirement to prove that the result of the
election of the returned candidate is materially
affected once his nomination is declared to have
been improperly accepted."
In the aforesaid case, the returned candidate filed
affidavit in Form 26 mentioning his educational qualification as
MBA from Mysore University in 2004 and the returned candidate
did not study MBA in the Mysore University. It is the case of the
returned candidate that reference to MBA from Mysore University
was a clerical error. The question which arose for decision was
whether the declaration given by the returned candidate in Form
26 would amount to defect of substantial nature warranting
rejection of his nomination. The Hon'ble Supreme Court rejected
the contention of the returned candidate that the declaration
relating to his educational qualification in the affidavit is a clerical
error.
413
Mr. Kanungo, learned counsel for the Election
Petitioner contended that in the present case the Respondent has
taken the stand that the wrong and misinformation in the
affidavit in Form 26 is a typographical error or clerical error and
he evaded to own responsibility for such mistake. The
Respondent not only gave false and misleading declaration in the
affidavit in Form 26 (Exts.43 to 46) but also made false and
misleading declaration in the publication made in three
newspapers, pursuant to the directions of the Constitution Bench
of Hon'ble Supreme Court in the case of Public Interest
Foundation (supra).
In case of Ganga Mishra -Vrs.- Chhedi Paswan &
Ors reported in MANU/BH/0533/2016, while invalidating the
election of the returned candidate (Respondent No.1), the Patna
High Court observed as follows:-
"3. The Respondent No.1 contested the election
on being nominated by the Bhartiya Janta Party
(BJP). Altogether 11 candidates contested the
election. It is stated that being a voter of 34
Sasaram (SC) Parliamentary Constituency, he
has a right under Article 19(1)(a) of the
Constitution to know about the contesting
candidates including his/their criminal
antecedents. It is much more fundamental and
414
basic for survival of a vibrant democracy. A well
informed voter can vote judiciously and elect the
law maker. By various judgments, the Apex
Court has emphasized the legal right of the
elector/voter like the petitioner. Any candidate
contesting election is required to furnish details
regarding his/her criminal antecedent while filing
nomination paper. Part-IIIA of Form-2A as well
as paragraph No. 5 of Part-A of Form 26 require
detailing of pending criminal cases against the
contesting candidate in which the offence is
punishable with imprisonment with two years or
more. However, the Returned Candidate
(Respondent No. 1) suppressed the material fact
that a criminal case bearing Mohania P.S. Case
No.168 of 2006 dated 08.09.2006 was pending
against him in which cognizance was taken by
the competent Court in the year 2007. The same
was not disclosed in Clause 5(ii) of Form-26. The
Returned Candidate had filed his nomination
paper on 30.10.2010 to contest the assembly
election from 204 Mohania Assembly
Constituency and in Form 2A and Form-26, he
had detailed all the criminal cases but in the
election under question he purposefully
suppressed his criminal antecedent by not
disclosing pendency of Mohania P.S. Case No.
168 of 2006. Altogether three criminal cases
were pending against the Returned Candidate.
The first criminal case arose out of Mohania P.S.
415
Case No.168 of 2006 under Sections 143, 145,
283 and 290 of the Indian Penal Code out of
which punishment under Section 145 IPC is two
years. In the aforesaid case, charge-sheet had
already been filed on 20.02.2007 whereupon
cognizance was taken by the learned Chief
Judicial Magistrate, Bhabhua in 2007 and the
case is pending for final adjudication in the Court
of learned S.D.J.M., Bhabhua. In the said case,
the Returned Candidate had surrendered on
19.02.2010 and was released on bail on
furnishing bond as directed by the Court. The
said case is fixed up for attendance. The said
case was lodged by the Officer-in-charge of the
Police Station against the Returned Candidate
and others named and unknown accused
alleging that Respondent No.1 along with 60-70
supporters constituting a mob in the afternoon
of 08.09.2006 at about 4.30 p.m. sat on the
middle of the road and blocked N.H.-2 (G.T.
Road) resulting in complete blockage. Even on
instruction by the Police, the accused did not
disperse and remained static creating public
nuisance. The mob was doing so to compel the
government to enforce Durgawati Reservoir
Project. Another criminal case bearing Mohania
P.S. Case No. 28 of 2005 under Section 171(h)
of I.P.C. and Section 3(i) of the Bihar Prevention
of Defacement of Property Act, 1985 was lodged
against the Returned Candidate (Sri Chhedi
416
Paswan) which is also pending before the
learned Judicial Magistrate, Bhabhua on a
charge-sheet being filed against him and
cognizance taken against the petitioners and
others on 31.01.2006. The Returned Candidate
later surrendered and was enlarged on bail. The
third criminal case pending against the Returned
Candidate was Mohania P.S. Case No.206 of
2005 under Section 3(i) of the Bihar Prevention
of Defacement of Property Act which is pending
trial vide Tr. No.2987 of 2013. The Returned
Candidate is on bail in the said case which is still
pending. Prima facie it is established that the
Returned Candidate had filled up the nomination
paper in 2014 Parliamentary Election by
furnishing false affidavit in regard to his pending
criminal cases. In one of those three cases, the
punishment is two years. The Returning Officer
acted contrary to the provisions of the Act and
diverse judgments of the Apex Court in illegally
accepting the nomination paper of the
Respondent No.1 as valid instead of rejecting
the same as per Section 33A of the Act as he
was required to furnish the information about his
involvement in criminal offence(s) punishable
with imprisonment of two years or more and
pending consideration before the Court upon
filing of charge-sheet. By not furnishing the
entire details of his criminal antecedents, the
Respondent No.1 prevented the voter, like the
417
petitioner, from expressing their considered
choice at the franchise. The votes thus polled in
his favour by the uninformed citizens/voters of
34 Sasaram (SC) Parliamentary Constituency
have become meaningless and in strict violation
of the fundamental rights of the voters
guaranteed under the Constitution. The purity of
election and more particularly the transparency
in the said election process has been completely
frustrated which materially affected the result of
the election insofar as it concerns the Returned
Candidate. The Returned Candidate in Clause-5
of the Form-26 filled up by him did not record
pendency of the Mohania P.S. Case No.168 of
2006. His nomination paper was liable to be
rejected. The Returning Officer illegally/
improperly accepted the nomination paper of the
respondent (Returned Candidate). In clause 5(ii)
of Form-26, the Returned Candidate wrote 'Nil'.
This is clear case of suppression of his criminal
antecedents.
xxx xxx xxx
8. The Counsel for the respondent No.1 has
opposed the application and the prayer made
therein. It is submitted that according to the
prescribed form (Form-26), in paragraph 5(ii)
thereof the respondent No.1 was not required to
give information of the Mohania P.S. Case
No.168 of 2006 because the charges in the said
418
case had not been framed against him till the
date of filing of the nomination paper and even
today by the competent Court in which the
punishment is imprisonment for two years or
more. It was the duty of the ECI to publicize the
new format to collect the information regarding
the criminal case pending against the contesting
candidate in which charge-sheet was filed by the
Police against the candidate and cognizance
taken by the competent Court. Unfortunately,
the ECI did not publicize the new format
requiring the candidate to detail relevant facts.
There was no space provided in Form-26 to
provide such information. Vide information
sought in paragraph 5 of Form-26, the candidate
was required to enlist only cases pending
against the candidate in which the imprisonment
is two years or more and charges have been
framed by the competent Court. If it is so then
only the candidate filling up the affidavit has to
proceed further with sub-para (i) and (ii) of
Para-5 of Form-26. Otherwise the contesting
candidate is not required to answer sub-para (i)
and (ii) of Para-5 of Form-26. In these
circumstances, the respondent No.1, quite bona
fidely, filled up the relevant column as 'shunya'
(nil) in sub-para (i) and (ii) of Para-5 as
indisputably no charge was framed in those
case(s) against the petitioner in which the
imprisonment is two year or more. The details
419
required to be furnished in sub-para (ii) of Para-
5 of Form-26, if read carefully, would clarify
these facts. It is clearly written in the bracket of
sub-para-(ii) "other than the cases mentioned in
Item No.1 above". It is thus more than obvious
that if the contesting candidate has furnished
relevant information in sub-para (i) which
required detailing of the case in which the
candidate is accused of any offence in which
punishment is two years or more and the
charges has been framed by the competent
Court, then only the respondent No.1 was
obliged to set out details/information in sub-para
(ii) of Para-5 as to whether he has got any other
pending criminal case(s). The respondent No.1 is
accused in three cases which are trivial in
nature. Out of them, two cases relate to pasting
of the posters on the wall without consent during
the elections held in 2005 in which the
imprisonment is up to six months. In one of
these two cases namely Mohania P.S. Case
No.28 of 2005, the respondent No.1 has been
acquitted by the Court. The third case registered
in the year 2006 was also trivial as on account
of staging peaceful 'dharna' on the road side of
G.T. road, Mohania in order to pressurize the
government to take up and commission the
Durgawati Project meant for providing irrigation
facilities to the agricultural lands of more than
two lacs farmers of 34 Sasaram (SC)
420
Parliamentary Constituency, the same was
lodged. It is the political right of the citizens in
active politics to do so for the benefit of the
people of the constituency. The said project has
now been commenced. In the above case
registered under Section 145 IPC, besides other
penal provisions, the punishment provided is up
to two years. Hence, under legal advice and
considering the requirements of aforesaid
paragraph of Form 26, the respondent No.1 had
not disclosed the details of the said case in
Form-26. The manner in which Form 26 require
detailing of the criminal cases pending against
the candidate filling up the form/affidavit in
which the punishment provided was up to two
years prevented him to enlist the said case.
Further, as no charge was framed against the
respondent No.1 in the said case also prevented
him from enlisting the said case in Form 26. It
was not a case of deliberate suppression of
relevant details with a view to deny the electors
of his right to know criminal antecedents of the
candidate contesting the election.
xxx xxx xxx
Re. Issue No.VII
13. For better appreciation of the case, this
issue is taken up for consideration out of turn.
The election petition in paragraph 22 has
421
asserted that non-compliance of the Constitution
and the provisions of the Act and the rules and
the orders made thereunder, the election of the
returned candidate is fit to be declared void
insofar as it concerns the returned candidate as
the election on account of illegal acceptance of
the nomination paper filed by the returned
candidate has materially affected the election. In
case the Court holds the nomination paper
submitted by the returned candidate was
illegally or improperly accepted then the election
of the returned candidate is bound to be
declared as void. Naturally, it would amount to
materially affecting the result of the returned
candidate. Though, not much submissions have
been advanced on this issue by the respondent
No.1 (returned candidate) yet this Court would
note that in the case of Krishnamurti v. Shiv
Kumar and Ors. 2015 AIR SCW 2688, in
paragraph 86(e) the Apex Court observed that in
a case like this, the question whether it
materially affects the election or not will not
arise. Consequently, the Court has no difficulty
to conclude that in case the Court accepts the
contention of the election petitioner on the main
issues then the result of the election can be held
to have materially affected. No further
discussion in the light of the pleadings and the
evidence adduced in support thereof require to
422
be noticed with a view to amplify the
point/issue.
Re.--Issue Nos.IV, V and VI
14. These issues are genetically interlinked and
have been considered together. There is also
agreement at Bar that they are interlinked and
the crucial issues falling for consideration in the
election petition which shall determine the fate
of the election petition. Relevant pleadings in
this regard have been made in paragraph Nos.7
to 16 of the election petition. Before the Court
notices the oral evidence adduced by the parties
on these issues, it is apt to notice the
documents/exhibits available on record on these
issues. Ext.-A series is Form 26 of the
nomination paper filed by Sri Chhedi Paswan
(respondent No.1) at the relevant election.
Paragraph 5(i) thereof requires the candidate to
set out details of cases pending against him in
which punishment provided is two years or
above and the Court of competent jurisdiction
has framed the charges. The Returned candidate
filled up all the succeeding columns of paragraph
No.5(i) of Form-26 as 'shunya' (nil). Then comes
paragraph 5(ii) which requires the candidate to
enlist or detail criminal cases pending against
him in which the Court has taken cognizance.
Again the respondent No.1 filled up the
succeeding column(s) of the said paragraph as
423
'shunya' (nil). There is no denial of the case of
the election petitioner that during the relevant
time, three criminal cases were pending in Court
against the respondent No.1 out of which one
case being Mohania P.S. Case No.168 of 2006
was lodged, on amongst others, under section
145 IPC wherein punishment provided is two
years. Ext.C series is Annexure-5 series of the
election petition which is the entire order-sheet
of Mohania P.S. Case No.168 of 2006. On
perusal of the order-sheet, it appears charge-
sheet was submitted in the said case in August,
2007 under Sections 143, 145, 283 and 290 of
the Indian Penal Code whereafter cognizance
was taken by the learned Chief Judicial
Magistrate, Bhabhua, Kaimur. The Respondent
No.1 in the said case surrendered in Court and
was granted bail on 19.2.2010. Ext.D series and
E series are similarly the entire order-sheet of
Mohania P.S. Case No.28 of 2005 and Mohania
P.S. Case No.206 of 2005 respectively in which
the respondent No.1 was cited as accused for
having committed trivial offence relating to
election in which punishment provided is less
than one year. They are not material for
adjudication of the issues as put up by the
election petitioner.
xxx xxx xxx
424
27. I have noticed the relevant evidence
adduced by the parties on the point of disclosure
or non-disclosure of the antecedent of the
respondent No.1. From the evidence of R.W.-VI
(respondent No. 1), it is seen that the witness
has admitted that he wrote 'shunya' in each
column of paragraph 5(ii) of Form-26 (the
affidavit). He has given an explanation that the
same was done as he was not advised to
disclose those cases pending against him in
which only cognizance was taken under penal
provision providing punishment for two years
but no charge was framed by the Court of
competent jurisdiction. He has further stated
that as he filled 'shunya' (nil) in the preceding
paragraph of the affidavit and, as such, he was
not required to detail other pending cases in
which only cognizance was taken by the Court
and no charge was framed. The words other
than those in preceding paragraph appearing in
paragraph 5(ii) of Form-26, according to him,
did not require him to disclose details of those
cases. The other non-official witness adduced on
his behalf have stated that the one case then
pending against the respondent No.1 under
Section 145 IPC where punishment provided is
two years related to staging dharna on road for
the betterment of the cultivators/voters of the
constituency. A plea has been taken that the
offence was trivial in nature and related to the
425
right of the political leaders to protest against
non-implementation of developmental project(s)
in the Parliamentary Constituency in which not
even charge was framed. He did not detail the
said case and wrote 'shunya' (nil).
xxx xxx xxx
29. The ECI issued guidelines to the contesting
candidates as well as the Returning Officers on
1st August 2012 in which the Association for
Democratic Reforms (supra) and People's Union
for Civil Liberties (supra) judgments were
required to be complied with. Form 26 as given
in the Act (Ext.A) is on record. Copies of the
handbook of the candidate as well as for the
Returning Officer have been produced in course
of argument for perusal of the Court. As noticed,
the respondent No.1 filled up the relevant
paragraph of Form-26 as 'shunya' (nil). The
word 'Constitution' used in 100(1)(d)(v) of the
Act is generic, purpose oriented and cannot be
controlled by the provisions of the Constitution
enumerated in Section 36 of the Act. There has
been infraction of the requirements of law as
directed by Hon'ble Supreme Court in the
judgments referred to above at the hands of
respondent No.1. I have further concluded that
if it is found so the election of respondent No.1
from 34 Sasaram SC Parliamentary Constituency
held in 2014 is fit to be declared void as the
426
respondent No.1 shall be held to have exercised
undue influence during the course of said
election which is a corrupt practice within the
meaning of the Act. It has been strenuously
submitted on behalf of the respondent No.1 that
the Mohania P.S. Case No.168 of 2006 was
instituted under minor sections of the Penal
Code which include Section 145 IPC in relation
to staging of dharna or blocking of the road for
immediate implementation of a water project in
the Constituency for the benefit of the
people/voters at large. It is one of the rights of a
citizen who is in active politics to do so. Triviality
of the offence in which the contesting candidate
is involved, in my view, would not be of much
consequence. A contesting candidate, according
to the requirements of law, is mandated to
disclose his past criminal antecedents where the
possible conviction is two years or more. The
punishment provided for the offence to be
disclosed as the antecedent itself suggest that
the contesting candidate may have serious
offences registered against him in which either
cognizance has been taken or charges framed.
Yet the law mandates for disclosure thereof. In
Association for Democratic Reforms (supra)
reinforced in People's Union for Civil Liberties
(supra), the Apex Court found the electors right
to know the antecedent of a contesting
candidate as a facet of right to freedom of
427
speech and expression enshrined in Article
19(1)(a) of the Constitution. What has been held
in Association for Democratic Reforms (supra) is
that the contesting candidate must disclose in
relevant form on affidavit the criminal cases
instituted against the contesting candidate prior
to six months of filing of nomination as to
whether the candidate is accused in any pending
case, of any offence punishable with
imprisonment with two years or more, and in
which charge is framed or cognizance is taken
by the Court of Law. It is in this context
paragraph 5(i) and 5(ii) of Form-26 can be seen
and appreciated. Indisputably, cognizance of the
case by competent Court of Law was taken in
Mohania P.S. Case No.168 of 2006. In fact, the
Respondent No.1 had disclosed the pendency of
the aforesaid case while filing his nomination
paper to contest 204 Mohania Assembly
Constituency held in 2010. The same was,
however, not disclosed to contest the present
election. In the circumstances, for such non-
compliance of the provisions of the Act, the
order issued by the ECI under Article 324 of the
Constitution and breach of Article 19(1)(a) of
the Constitution, the election of respondent No.1
from 34 Sasaram (SC) Parliamentary
Constituency is liable to be held as null and void
as the respondent No.1 suffered from
constitutional disability. These issues are,
428
accordingly, decided in favour of the election
petitioner."
In the aforesaid case, it has been strenuously
submitted on behalf of the returned candidate that the case was
instituted under minor sections of the I.P.C. i.e., section 145 the
I.P.C., in relation to staging of dharna or blocking of the road for
immediate implementation of water project in the constituency
for the benefit of the people/voters at large. It is one of the
rights of a citizen who is in active politics to do so. The Hon'ble
Patna Court held that, triviality of the offence in which the
contesting candidate is involved would not be of much
consequence. A contesting candidate, according to the
requirements of law, is mandated to disclose his past criminal
antecedents where the possible conviction is two years or more.
The punishment provided for the offence to be disclosed as the
antecedent itself suggest that the contesting candidate may have
serious offences registered against him in which either
cognizance has been taken or charges framed. Yet the law
mandates for disclosure thereof is that the contesting candidate
must disclose in relevant form on affidavit the criminal cases
instituted against the contesting candidate prior to six months of
filing of nomination as to whether the candidate is accused in
429
any pending case, of any offence punishable with imprisonment
with two years or more, and in which charge is framed or
cognizance is taken by the Court of Law. It is in this context
paragraph 5(i) and 5(ii) of Form-26 can be seen and
appreciated. In the circumstances, for such non-compliance of
the provisions of the Act, the order issued by the ECI under
Article 324 of the Constitution and breach of Article 19(1)(a) of
the Constitution, the election of respondent No.1 from 34
Sasaram (SC) Parliamentary Constituency was held liable to be
held as null and void.
Mr. Kanungo, learned counsel for the Election
Petitioner also placed reliance in the case of Brajesh Singh
-Vrs.- Sunil Arora and Others reported in (2021) 10
Supreme Court Cases 241, wherein the Hon'ble Supreme
Court, inter alia, directed all the political parties to publish
information about the criminal antecedents of candidates on their
respective official websites. It also issued the following
directions:-
"77. In furtherance of the directions issued by
the Constitution Bench in Public Interest
Foundation and our order dated 13-2-2020, in
order to make the right of information of a voter
more effective and meaningful, we find it
430
necessary to issue the following further
directions:
77.1. Political parties are to publish
information regarding criminal antecedents of
candidates on the homepage of their websites,
thus making it easier for the voter to get to the
information that has to be supplied. It will also
become necessary now to have on the
homepage a caption which states "Candidates
with Criminal Antecedents".
77.2. The ECI is directed to create a
dedicated mobile application containing
information published by candidates regarding
their criminal antecedents, so that at one stroke,
each voter gets such information on his/her
mobile phone.
77.3. The ECI is directed to carry out an
extensive awareness campaign to make every
voter aware about his right to know and the
availability of information regarding criminal
antecedents of all contesting candidates. This
shall be done across various platforms, including
social media, websites, TV ads, prime time
debates, pamphlets, etc. A fund must be created
for this purpose within a period of 4 weeks into
which fines for contempt of Court may be
directed to be paid.
431
77.4. For the aforesaid purposes, the ECI
is also directed to create a separate cell which
will also monitor the required compliances so
that this Court can be apprised promptly of non-
compliance by any political party of the
directions contained in this Court's orders, as
fleshed out by the ECI, in instructions, letters
and circulars issued in this behalf.
77.5. We clarify that the direction in para
4.4 of our order dated 13-2-2020 be modified
and it is clarified that the details which are
required to be published, shall be published
within 48 hours of the selection of the candidate
and not prior to two weeks before the first date
of filing of nominations.
77.6. We reiterate that if such a political
party fails to submit such compliance report with
the ECI, the ECI shall bring such non-compliance
by the political party to the notice of this Court
as being in contempt of this Court's
orders/directions, which shall in future be
viewed very seriously."
Learned counsel for the Election Petitioner submitted
that the Election Petitioner in para 7(C) has pleaded that the
Respondent in his affidavit dated 03.04.2019 filed along with his
nomination paper on 02.04.2019 has falsely and deliberately
withheld correct, proper and full declaration about the details of
432
the criminal cases pending against him. The Respondent has not
accurately mentioned correct fact under column (5) of the
affidavit submitted by him before the Returning Officer as to
whether any criminal case was pending against him or not. In
column (5)(ii)(a)(vi), the Respondent has mentioned that:
i) FIR No.136/2012 dated 24.09.2012 in
Balianta Police Station, Cuttack, Odisha whereas
there is no Balianta Police Station in the district
of Cuttack.
ii) The Respondent has mentioned FIR No.34
dated 06.09.2007, Vigilance Police Station,
Cuttack, Odisha whereas there is no FIR No.34
dated 06.09.2007 in Vigilance Police Station,
Cuttack, Odisha against the Respondent.
iii) The Respondent has not disclosed about
the pendency of the FIR/V.G.R. No.34 dated
06.09.2007 of Vigilance Police Station,
Bhubaneswar, Odisha against him.
iv) The Respondent has also not disclosed the
FIR/V.G.R No. of the T.R. No.41/2013 pending in
the Court of Spl. Judge, Vigilance, Bhubaneswar
against him and others.
v) The declaration made in column (5)(ii)(b)
Sl. No.(ix) by the Respondent about the G.R.
case No.680/2012 in the Court of S.D.J.M.,
433
Bhubaneswar is false and misleading
declaration. There is no G.R. Case No.680/2012
pending against the Respondent in the Court of
S.D.J.M., Bhubaneswar rather a G.R. Case No.
680/2012 is pending against the respondent in
the Court of the J.M.F.C.(O), Bhubaneswar.
vi) FIR Nos. given in column (5)(ii)(a) and the
corresponding case nos. and the name of the
Court declared in column (5)(ii)(b) and sections
of the concerned Acts/Codes involved are false
and misleading declarations.
vii) The Respondent in column (5)(ii)(d) has
declared that two charge related to wrongful
restraint (I.P.C. section 341) whereas in column
(5)(ii)(c) sl. No.(v), (vi) and (xii), he has
declared three cases under section 341 of the
I.P.C. is pending against him.
viii) The Respondent in column (5)(ii)(d) has
declared that two charges related to obscene
acts and songs (I.P.C. section 294) whereas in
column (5)(ii)(c) sl. nos.(i), (ii), (iv), (v), (vi)
and (xii), he has declared six cases under
section 294 of the I.P.C. is pending against him.
ix) The Respondent in column (5)(ii)(d) has
declared five charges related to cheating and
dishonestly inducing delivery of property (I.P.C.
section 420) whereas in column (5)(ii)(c) sl.
434
Nos.(iii), (vii) to (x) and (xiii), he has declared
six cases under section 420 of the I.P.C. are
pending against him.
x) The Respondent in column (5)(ii)(d) has
declared five charges related to punishment of
criminal conspiracy (I.P.C. section 120-B)
whereas in column (5)(ii)(c) sl. nos.(iii), (vii) to
(x) and (xiii), he has declared six cases under
section 120-B of the I.P.C. is pending against
him.
xi) The Respondent in column (5)(ii)(d) has
declared two charges related to mischief by
injury to public road, bridge, river, channel
(I.P.C. section 143) whereas in column (5)(ii)(c)
sl. nos. (i), (iv) and (v), he has declared three
cases under section 143 of the I.P.C. is pending
against him.
xii) The Respondent in column (5)(ii)(d) has
declared two charge related to mischief by doing
any act in respect of any public property (section
7/3 and 7/4 of P.D.P.P. Act) whereas in column
(5)(ii)(c) sl. nos.(i), (ii), (xii), he has declared
three cases under the P.D.P.P. Act.
xiii) The Respondent in column (5)(ii)(c), sl.
nos. (iii)(vii) to (x) and (xiii) has declared about
the cases pending against him under section
13(2) read with section 13(1)(d) of P.C. Act,
435
1988 but has not declared about the same in
column (5)(ii)(d) of the affidavit.
According to the learned counsel for the Election
Petitioner, the Respondent has made false declaration about the
pendency of criminal cases against him. Non-disclosure of
criminal cases by the Respondent in entirety and in full detail in
the prescribed Form 26, as mandated under section 33A of the
R.P. Act, 1951 read with Rule 4A of 1961 Rules, creates
impediment in free exercise of electoral rights by the voters and
therefore, the election of the Respondent from the constituency
is to be declared null and void as the misinformed voters could
not make an informed choice according to their free will and
conscience and the same violates the fundamental rights of the
voters to know. To prove the above pleadings made in the
Election Petition, the Election Petitioner exhibited Exts.17 to 30
and Ext.49. According to Mr. Kanungo, the submissions made by
the learned Senior Advocate for the Respondent that except
Exts.26, 27 and 30, there is no pleading in the election petition,
is not correct. The Election Petitioner has pleaded the material
facts in the election petition regarding false declaration made in
the affidavit filed in Form 26 by the Respondent and
436
substantiated the said pleadings with the exhibits i.e., Exts.17 to
30 and Ext.49.
Mr. Kanungo, learned counsel further argued that the
Respondent in reply to the averments made in para 7(C) of the
election petition, in para 23(C) of his written statement,
contended, inter alia, that he has disclosed all the necessary
information in respect of the criminal cases pending against him
in his affidavit filed in Form 26. There is no concealment of
information or false information provided by the Respondent in
the said affidavit, rather he has declared all particulars in respect
of all the criminal cases pending against him as required under
law and prescribed under the format of the Form 26 affidavit. On
the other hand, the Election Petitioner has made above
allegations very tactfully on false and frivolous grounds, without
disclosing the basic material facts as to what are the information
required to be disclosed under law in column (5) of the Form 26
affidavit. According to the Respondent, the Election Petitioner
while making allegations under paragraph-7(C) of the election
petition has deliberately suppressed the above important
material facts which are laid down/prescribed under the column
(5)(ii) in its clauses (a) to (g) and as such those allegations do
not disclose complete cause of action.
437
Mr. Kanungo, learned counsel further argued that the
Election Petitioner in para 7(G) of the election petition has
pleaded that the Respondent has not submitted his nomination
paper as required under law in the prescribed form and he has
also not filed the affidavit in Form 26 giving true and correct
declarations about his criminal cases, assets (both movable and
immovable) and liabilities of self and spouse for which his
nomination papers ought to have been rejected by the Returning
Officer as the Respondent has not complied with the requirement
of section 33 of the R.P. Act, 1951. The Election Petitioner in
para 7(H) of the election petition has pleaded that non-disclosure
or misinformation about the criminal cases pending against him
and about the assets (both movable and immovable) and
liabilities of himself and his spouse leads to suppression and
amounts to making false declaration. Therefore, the Respondent
is not entitled to contest the election for the aforesaid
suppression and false declarations in the affidavit filed in Form
26 and for which the election of the Respondent is to be declared
void.
Learned counsel for the Election Petitioner further
argued that non-disclosure/misinformation of criminal cases,
assets (both movable and immovable) and the liabilities of
438
Respondent and his spouse interferes with free exercise of the
right of the voters to vote according to their choice and
conscience. Free and fair election is the essence of democracy.
Without freely and fairly informed voters, votes cast by
uninformed voters in favour of the Respondent are meaningless.
One sided information, misinformation and non-information all
equally create an uninformed citizenry which makes democracy a
farce. Therefore, casting of votes by misinformed and non-
informed voters is bound to affect the democracy seriously. The
information required in the nomination Form 2B and in the
affidavit filed in Form 26 is vital for giving effect to the 'right to
Know' of the citizens. If a candidate fails to file the prescribed
nomination form in Form 2B and files affidavit by suppressing
the required information in Form 26, his nomination paper is to
be rejected. In the present case, the Respondent has not filed
his nomination paper in the prescribed Form 2B and has not fully
disclosed about the criminal cases pending against him for which
the Returning Officer should have rejected his nomination papers
as the same was not filed in the prescribed Form 2B and
whatever has been filed is also with blank particulars. But the
Returning Officer illegally and improperly accepted the
nomination papers of the Respondent though the same were not
439
in the prescribed Form 2B. Therefore, non-filing of nomination
paper in the prescribed form and whatever has been filed with
blank particulars materially affects the result of the election as
such the election of the Respondent declaring him as MLA of 90-
Barabati Cuttack Assembly Constituency is to be declared void.
To prove the pleadings made in the election petition
relating to criminal cases, the Election Petitioner exhibited Exts.1
to 4, 17 to 30, 32 to 35, 43 to 46 and Ext.49. Exts.B, C, D and
B/1, C/1, D/1 were exhibited on behalf of the Respondent.
Exts.1 to 4 and Ext.32 to 35 are the downloaded and
printed copies of nomination paper dated 02.04.2019 along with
the affidavit dated 03.04.2019 in Form 26 from the website of
the Election Commission of India whereas Ext.43 is the original
affidavit dated 03.04.2019 and Exts.44 to 46 are the xerox
attested copy of Ext.43, the affidavits in Form 26 filed by the
Respondent along with the nomination paper dated 02.04.2019.
The Election Petitioner in his evidence affidavit Ext.36
has stated as follows:-
"19. That in column (5)(ii)(a) of the affidavit in
Form 26, the Respondent is to declare the FIR
numbers with name and address of police
440
station and in column 5(ii)(b), he is to disclose
the corresponding Case Nos. with the name of
the Court and in column 5(ii)(c), Section(s) of
the concerned Acts/Codes involved and in
column 5(ii)(d), brief description of the offences.
But he has not declared correct FIR nos. with
name and address of police station so also the
case numbers with name of the Court and
Sections of concerned acts/ codes involved and
the brief description of the offences. Thus, the
Respondent has given false declaration
regarding his criminal antecedents in his
affidavit filed in Form 26 along with his
nomination papers."
The Respondent in his examination-in-chief (Ext.DW)
has stated as follows:-
"I have disclosed all necessary information in
respect of the criminal cases pending against me
in my affidavit in Form 26 dtd. 03.04.2019 xxx
xxx xxx In Exts.43, 44, 45 and 46, I have
declared all particulars in respect of all the
criminal cases pending against me as required
and prescribed under the format of the Form 26
affidavit."
"The further allegation made by the Election
Petitioner to the effect that I have given false
and misleading declarations with respect to the
441
FIR Nos. in column (5)(ii)(a) and the
corresponding Case Nos. and the name of the
Court declared in column (5)(ii)(b) and sections
of the concerned Acts/Codes involved, does not
point out any particular false and misleading
declaration by me and as such the same is a
bald and frivolous allegation."
The Respondent in his cross-examination has stated
as follows:-
"Before filing the affidavit, I had carefully gone
through the same and being satisfied that it
contains the correct facts, I sworn affidavit
before the Notary Public. At the time of filing of
the nomination papers, some criminal cases
were pending against me."
Exts.43 to 46 show that in Col.5(ii)(a)(i), the
Respondent has declared in his affidavit in Form 26 that FIR
No.149 dtd. 15.09.2018, Purighat Police Station, Cuttack, Odisha
whereas Ext.17 discloses that the said FIR No.149 was registered
on 11.09.2018 and not on 15.09.2018.
The Respondent in his examination-in-chief of
Ext.DW has admitted that "Ext.17 is the certified copy of F.I.R.
No.149 dated 11.09.2018 of Purighat P.S., Cuttack." The
Respondent in his cross-examination has admitted that, "It is a
442
fact that Ext.17 reveals that Purighat P.S. Case No.149 was
registered on 11.09.2018."
Q. You have not submitted any document to
show that F.I.R. No.149 dated 15.09.2018 of
Purighat police station, Cuttack, Odisha is
pending against you as you have mentioned in
Col. No. 5(ii)(a)(i) of your affidavit in Form 26
(Ext.43, Ext.44, Ext.45 and Ext.46).
Ans. Since Purighat P.S. Case No.149 was not
registered on 15.09.2018 and it was registered
on 11.09.2018 and it was a typographical error
on my part to mention the same in the said
column, therefore, I have not filed any
document in that respect. Thus, the date of FIR
No.149 mentioned in Exts.43 to 46 are false
declaration.
Exts.43 to 46 show that in Col.5(ii)(a)(ii), the
Respondent has declared in his affidavit in Form 26 that FIR
No.150 dtd. 15.09.2018, Purighat Police Station, Cuttack, Odisha
whereas Ext.18 discloses that the said FIR No.150 was registered
on 11.09.2018 and not on 15.09.2018.
The Respondent in his examination-in-Chief (Ext.DW)
has admitted that, "Ext.18 is the certified copy of F.I.R. No.150
dated 11.09.2018 of Purighat P.S., Cuttack." The Respondent in
443
his cross-examination has admitted that "It is a fact that Ext.18
reveals that Purighat P.S. Case No. 150 was registered on
11.09.2018."
Q. You have not submitted any document to
show that F.I.R. No.150 dated 15.09.2018 of
Purighat police station, Cuttack, Odisha is
pending against you as you have mentioned in
Col. No.5(ii)(a)(ii) of your affidavit in Form 26
(Ext.43, Ext.44, Ext.45 and Ext.46).
Ans. Since Purighat P.S. Case No.150 was not
registered on 15.09.2018 and it was registered
on 11.09.2018 and it was a typographical error
on my part to mention the same in the said
column, therefore, I have not filed any
document in that respect."
Exts.43 to 46 show that in Col.5(ii)(a)(iii), the
Respondent has declared, in his affidavit in Form 26, that
FIR/V.G.R. No.85 dtd. 31.12.2012 of Vigilance Police Station,
Cuttack is pending against him but while declaring the case
number and the name of the Court in col.5(ii)(b)(vi), the
Respondent has declared that G.R Case No.85/2012 dated
31.12.2012 is pending in the Court of Special Judge, Vigilance,
Cuttack whereas Ext.23 reveals that the Case No. is V.G.R.
No.85/2012 and not G.R. case no.85/2012. The Respondent in
444
examination-in-chief (Ext.DW) has admitted that Ext.23 is the
certified copy of F.I.R. and order sheet of V.G.R. No.85/2012
pending before Special Judge, Vigilance, Cuttack. He has also
admitted to have mentioned the details of pendency of the said
vigilance case against him in his affidavit in Form 26 (Ext.43,
Ext.44, Ext.45 and Ext.46) in column (5)(ii)(a)(iii), (5)(ii)(b)(vi)
and (5)(ii)(c)(vii) as well as furnished related information in
column (5)(ii)(d), (5)(ii)(e), (5)(ii)(f) and (5)(ii)(g). The
Respondent in his cross-examination has admitted that in Col.
No.5(ii)(a)(iii) of his affidavit in Form 26 (Ext.43, Ext.44, Ext.45
and Ext.46), he has declared that F.I.R./V.G.R. No.85 dated
31.12.2012 of Vigilance Police Station, Cuttack, Odisha is
pending against him and while giving its case number and name
of the Court in Col. No.5(ii)(b)(vi), he has mentioned G.R. Case
No.85 of 2012 dated 31.12.2012 to be pending against him in
the Court of learned Special Judge, Vigilance, Cuttack. He
conceded it to be a typographical error on his part to mention
'G.R.' in place of 'V.G.R.'." Thus, according to the learned
counsel for the Election Petitioner, the case number mentioned in
Col.5(ii)(b)(vi) of the affidavit in Form 26 is a false declaration.
Exts.43 to 46 show that in Col.5(ii)(a)(iv), the
Respondent has declared in his affidavit in Form 26 that FIR/
445
V.G.R. No.83 dated 28.12.2012 of Vigilance Police Station,
Cuttack is pending against him but while declaring the case
number and the name of the Court in col.5(ii)(b)(viii), the
Respondent has declared that G.R Case No.83/2012 dated
28.12.2012 is pending in the Court of learned Special Judge,
Vigilance, Cuttack whereas Ext.24 reveals that the case number
is V.G.R. No.83/2012 and not G.R. Case no.83/2012. The
Respondent, in examination-in-chief (Ext.DW), has admitted that
Ext.24 is the certified copy of F.I.R. and order sheet of V.G.R.
No.83/2012 pending before Special Judge, Vigilance, Cuttack. He
further admitted to have mentioned the details of pendency of
the said vigilance case against him in his affidavit in Form 26
(Ext.43, Ext.44, Ext.45 and Ext.46) in column (5)(ii)(a)(iv),
(5)(ii)(b)(viii) and (5)(ii)(c)(viii) as well as furnished related
information in column (5)(ii)(d), (5)(ii)(e), (5)(ii)(f) and
(5)(ii)(g). The Respondent in his cross-examination has admitted
that in Col. No.5(ii)(a)(iv) of his affidavit in Form 26 (Ext.43,
Ext.44, Ext.45 and Ext.46), he has declared that F.I.R./V.G.R.
No.83 dated 28.12.2012 of Vigilance Police Station, Cuttack,
Odisha is pending against him and while giving its case number
and name of the Court in Col. No.5(ii)(b)(viii), he has mentioned
G.R. Case No.83 of 2012 dated 28.12.2012 to be pending
446
against him in the Court of learned Special Judge, Vigilance,
Cuttack. He further admitted that a bare glance at Ext.24 reveals
that the case number has been mentioned to be 'V.G.R.
83/2012'. He also conceded that it was a typographical error on
his part to mention 'G.R.' in place of 'V.G.R.'. Thus, according to
the learned counsel for the Election Petitioner, the case number
mentioned in Col.5(ii)(b)(viii) of the affidavit in Form 26 is a
false declaration.
Exts.43 to 46 show that in Col.5(ii)(a)(v), the
Respondent has declared in his affidavit in Form 26 that FIR/
V.G.R. No.84 dated 28.12.2012 Vigilance Police Station, Cuttack
is pending against him but while declaring the case number and
the name of the Court in col.5(ii)(b)(vii), the Respondent has
declared that G.R Case No.84/2012 dated 28.12.2012 is pending
in the Court of learned Special Judge, Vigilance, Cuttack whereas
Ext.25 reveals that the case number is V.G.R. No.84/2012 and
not G.R. Case no.84/2012. The Respondent, in his examination-
in-chief (Ext.DW), has admitted that Ext.25 is the certified copy
of F.I.R. and order sheet of V.G.R. No.84/2012 pending before
the learned Special Judge, Vigilance. Cuttack. He further
admitted to have mentioned the details of pendency of the said
vigilance case against him in his affidavit in Form 26 (Ext.43,
447
Ext.44, Ext.45 and Ext.46) in column (5)(ii)(a)(v), (5)(ii)(b)(vii)
and (5)(ii)(c)(ix) as well as furnished related information in
column (5)(ii)(d), (5)(ii)(e), (5)(ii)(f) and (5)(ii)(g). The
Respondent in his cross-examination has admitted that in Col.
No.5(ii)(a)(v) of his affidavit in Form 26 (Ext.43, Ext.44, Ext.45
and Ext.46), he has declared that F.I.R./V.G.R. No.84 dated
28.12.2012 of Vigilance Police Station, Cuttack, Odisha is
pending against him and while giving its case number and name
of the Court in Col. No.5(ii)(b)(vii), he has mentioned G.R. Case
No.84 of 2012 dated 28.12.2012 to be pending against him in
the Court of learned Special Judge, Vigilance, Cuttack. He further
admitted that a bare glance at Ext.25 reveals that the case
number has been mentioned to be 'V.G.R. 84/2012'. He also
conceded that it was a typographical error on his part to mention
'G.R.' in place of 'V.G.R.'. Thus, according to the learned counsel
for the Election Petitioner, the case number mentioned in
Col.5(ii)(b)(vii) of the affidavit in Form 26 is a false declaration.
Exts.43 to 46 show that in Col.5(ii)(a)(vi), the
Respondent has declared in his affidavit in Form 26 that FIR
No.136/2012 dated 24.09.2012, Balianta Police Station, Cuttack,
Odisha is pending against him whereas Ext.27 discloses that FIR
No.136 dated 24.09.2012 Balianta P.S. is under Bhubaneswar
448
Urban Police District and not at Cuttack. Further, the said FIR
(Ext.27) discloses that it has been registered against the
Respondent and others under sections 417/341/323/294/506/
379/120B/34 of the Indian Penal Code (hereafter, the IPC)
whereas in Col.5(ii)(c)(vi), the Respondent has declared sections
of the concerned Acts/Codes involved, commission of offences
under sections 147/341/323/294/353/427/149 of IPC. But he
has not declared about sections 417/506/379/120B/34 of IPC
and has falsely declared about sections 147/353/427/149 IPC in
the affidavit in Form 26 (Exts.43 to 46). Thus, according to the
learned counsel for the Election Petitioner, the Respondent has
given false declaration regarding the sections involved in the said
FIR no.136/2012 marked Ext.27 in his affidavit filed in Form 26
along with his nomination papers.
Similarly, the Respondent in column (5)(ii)(b)(ix) of
Ext.43, the affidavit in Form 26 has mentioned G.R. Case
no.680/2012 is pending against him in the Court of learned
S.D.J.M., Bhubaneswar, but Ext.27 shows G.R. Case
no.680/2012 is pending in the Court of learned J.M.F.C.(O),
Bhubaneswar. G.R. Case no.680/2012 was never pending before
the Court of learned S.D.J.M., Bhubaneswar. Thus, the
449
Respondent has given false declaration in his affidavit filed in
Form 26 along with his nomination papers.
The Election Petitioner in his evidence affidavit
(Ext.36) has stated as follows:-
"That in column (5)(ii)(a)(vi) of Exhibit 1 to 4
and Exhibit 32-35, the Respondent has
mentioned FIR No.136/2012 dated 24.09.2012
in Balianta Police Station, Cuttack, Odisha is
pending against him but there is no Balianta
Police Station in the district of Cuttack. The
Balianta Police Station is under Bhubaneswar
UPD (Urban Police District) which is evident from
the certified copy of the FIR marked exhibit-27.
The said FIR has been registered against the
Respondent and Ors. U/s.417/341/323/294/
506/379/120-B/34 of IPC whereas in column
5(2)(c)(vi), the Respondent has declared
sections of concerned Acts/codes involved,
commission of offences U/s.147/341/323/294/
353/427/149 of IPC. Thus, the Respondent has
given false declaration regarding the sections
involved in the said FIR no.136/2012 marked
Exhibit-27 in his affidavit filed in Form 26 along
with his nomination papers. The Respondent in
column (5)(ii)(b)(ix) of Exhibit 1 to 4 and Exhibit
32-35 has mentioned G.R. Case no.680/2012 is
pending against him in the Court of S.D.J.M.,
450
Bhubaneswar but Exhibit 27 shows G.R. Case
no.680/2012 is pending in the Court of
J.M.F.C.(O), Bhubaneswar. G.R. Case
no.680/2012 was never pending before the
Court of SDJM, Bhubaneswar. The Respondent in
Col.5(ii)(a)(vi), 5(ii)(c)(vi) and 5(ii)(b)(ix) has
given false declaration in his affidavit filed in
Form 26 along with his nomination papers with
respect to name of the police station, sections
involved and the name of the Court of FIR
No.136 dated 24.09.2012 of Balianta P.S.
corresponding to G.R. Case No.680/2012
(Ext.27)."
The Election Petitioner during cross-examination has
stated as follows:-
"I have filed Ext.27 which relates to Balianta
P.S. Case No.136 dated 24.09.2012 registered
under sections 417/341/323/294/506/379/120-
B/34 of the Indian Penal Code, which
corresponds to G.R. Case No.680 of 2012
pending in the Court of J.M.F.C. (O),
Bhubaneswar against the Respondent Md.
Moquim and others in which the order sheet
indicates that on completion of investigation,
charge sheet has been submitted on 20.11.2015
under sections 341/294/506/120-B/34 of the
Indian Penal Code and accordingly, as per order
dated 07.12.2015, cognizance of such offences
451
has been taken and it further reflects that the
Respondent Md. Moquim is on police bail granted
by this Court in BLAPL No.27222 of 2012. xxx
xxx xxx (last 4 lines) I find that in Col.
No.5(ii)(a)(vi) of the affidavit filed by the
Respondent Md. Moquim in Form No.26 dated
03.04.2019 in connection with his nomination
papers dated 02.04.2019 under Exts.1, 2, 3, 4,
32, 33, 34 and 35, though the F.I.R. number
and police station have been correctly reflected
in the affidavit but in Col.No.5(i)(b)(ix) of the
said affidavit, though the G.R. case number has
been correctly reflected, but it is mentioned to
be pending in the Court of learned S.D.J.M.,
Bhubaneswar though as per the order sheet filed
by me, the said case was never pending in the
Court of learned S.D.J.M., Bhubaneswar and
right from the beginning it was pending before
the J.M.F.C. (O), Bhubaneswar. Similarly, in Col.
No.5(i)(c)(xii) of the said affidavit, some of the
offences like section 3 of P.D.P.P. Act, section 7
of Criminal Law Amendment Act and section 96
of Odisha Urban Police Act and sections 147,
353, 427 and 149 of Indian Penal Code have
been incorrectly reflected though the case was
never filed for such offences nor charge sheeted
under such offences."
The Respondent in his examination-in-chief (Ext.DW)
has admitted as follows:-
452
"Ext.27 is the certified copy of F.I.R. and entire
order sheet of G.R. Case No.680/2012 (Balianta
P.S. Case No.136 dated 24.09.2012) pending in
the Court of J.M.F.C.(O), Bhubaneswar. I have
mentioned the details of pendency of the said
criminal case against me in my affidavit in Form
26 (Ext.43, Ext.44, Ext.45 and Ext.46) in column
(5)(ii)(a)(vi), (5)(ii)(b)(ix) and (5)(ii)(c)(xii).
xxx xxx xxx It is a fact that in my affidavit in
Form 26 under its Column (5)(ii)(a)(vi), I have
mentioned 'F.I.R. No.136/2012 dated
24.09.2012, Balianta Police Station, Cuttack.
Odisha' in place of F.I.R. No.136/2012 dated
24.09.2012, Balianta Police Station, Khordha,
Odisha'. Mentioning 'Cuttack' in place of Khordha
is purely a typographical and clerical error.
xxx xxx xxx
It is a fact that in my affidavit in Form 26 under
its Column (5)(ii)(b)(ix), I have mentioned 'G.R.
Case No.680/2012 in the Court of S.D.J.M.,
Bhubaneswar' in place of 'G.R. Case
No.680/2012 in the Court of J.M.F.C.(O),
Bhubaneswar'. Mentioning of 'S.D.J.M.' in place
of 'J.M.F.C.(O)' is purely a typographical and
clerical error and it does not create any serious
confusion in the minds of the electors of 90-
Barabati Cuttack Assembly Constituency."
453
The Respondent in his cross-examination has
admitted as follows:-
"Ext.27 is the certified copy of the order-sheet of
G.R. Case No.680 of 2012 pending in the Court
of J.M.F.C. (O), Bhubaneswar along with the
certified copy of the First Information Report in
Balianta P.S. Case No.136 dated 24.09.2012.
Balianta police station comes under
Bhubaneswar Urban Police District (UPD). It is
not a fact that I have made a false declaration
by mentioning under Col. No.5(ii)(a)(vi) that
F.I.R. No.136/2012 dated 24.09.2012, Balianta
Police Station comes under Cuttack, Odisha. It
was a mistake on my part to mention 'Cuttack'
in place of 'Bhubaneswar', however,
Bhubaneswar-Cuttack Commissionarate of Police
is one and it was a typographical error. It is not
a fact that I have made false declaration by
mentioning under Col. No.5(ii)(b)(ix) that G.R.
Case No.680/2012 is pending in the Court of
S.D.J.M., Bhubaneswar though Ext. 27 indicates
that the said case is pending in the Court of
J.M.F.C. (O), Bhubaneswar. It is a typographical
error on my part to mention 'S.D.J.M.,
Bhubaneswar' in place of 'J.M.F.C. (O),
Bhubaneswar'."
(The witness volunteers)
454
"It is a fact that even though Balianta P.S. Case
No.136 dated 24.09.2012 which corresponds to
G.R. Case No.680 of 2012 pending in the Court
of J.M.F.C. (O), Bhubaneswar was registered
under sections 417/341/323/294/506/379/120-
B/34 of the Indian Penal Code, but in my
affidavits marked as Ext.43, Ext.44, Ext.45 and
Ext.46, I have not mentioned these offences
under Col. No.5(ii)(c) where it was required to
mention 'section(s)' of concerned Acts/Codes
involved (give no. of the Section, e.g. Section ....
of IPC, etc.) The witness again says that the
offences are mentioned under Col.
No.5(ii)(c)(vi). The witness again says that he
cannot say in which Col. No.5(ii)(c), the same
has been mentioned. It is a fact that even
though one of the offences under which Balianta
P.S. Case No.136 dated 24.09.2012 was
registered is section 417 of the Indian Penal
Code, in Col. No.5(ii)(c) of my affidavits marked
as Ext.43, Ext.44, Ext.45 and Ext.46, where I
have mentioned the offences of different cases
instituted against me, I have not indicated that a
case under section 417 of the Indian Penal Code
is pending against me. The witness volunteers
that it may be a typographical error to leave
such offence in the said column. It is a fact that
in none of the offences indicated under Col.
No.5(ii)(c), I have mentioned that a case under
sections 506/379 of the Indian Penal Code along
455
with other offences was pending against me as
Balianta P.S. Case No.136 dated 24.09.2012
was registered also under such offences, but the
omission of section 379 of the Indian Penal Code
under such column was a typographical error on
my part. It is a fact that in the written
statement, I have not mentioned that it was a
typographical error on my part to mention under
Col. No.5(ii)(b)(ix) that G.R. Case No.680/2012
is pending in the Court of S.D.J.M.,
Bhubaneswar though Ext.27 indicates that the
said case is pending in the Court of J.M.F.C. (O),
Bhubaneswar and also omission of offences
under sections 417/506/379 of the Indian Penal
Code, but since in the pleading of the election
petition, nothing was stated by the Election
Petitioner in that respect, I have not mentioned
it in my written statement."
Q. In paragraph no.7(C) page nos.10 and 11 of
the election petition, it is specifically mentioned
that the declaration you have made in column
5(ii)(b), Sl.No.(ix) about G.R. Case No.680/2012
in the Court of S.D.J.M., Bhubaneswar is false
and misleading declaration and that there is no
G.R. Case No.680/2012 pending against you in
the Court of S.D.J.M., Bhubaneswar, rather G.R.
Case No.680/2012 is pending against you in the
Court of J.M.F.C.(O), Bhubaneswar, how do you
456
say that there is no pleading in the election
petition in that respect?
Ans. My advocate can only reply the same.
It is not a fact that by stating that there was no
pleading in the election petition as pointed out to
me in the above question, I have told falsehood
in this Court.
Q. In paragraph no.7(C) page no.11 of the
election petition, it is specifically mentioned that
the sections of the concerned Acts/Codes
involved are false and misleading declarations,
how do you say that there is no pleading in the
election petition in that respect?
Ans. My advocate can only reply the same.
It is not a fact that in page no.78 of my
evidence on affidavit where I have mentioned
that the details of the pendency of the said
criminal case (G.R. Case No.680/2012 which
arises out of Balianta P.S. Case No.136 dated
24.09.2012) against me in my affidavit in Form
No.26 (Ext.43, Ext.44, Ext.45 and Ext.46) in
Col.Nos.(5)(ii)(a)(vi), (5)(ii)(b)(ix), (5)(ii)(c)(xii)
as well as furnished related information in
Col.(5)(ii)(d), (5)(ii)(e), (5)(ii)(f), and (5)(ii)(g)
are not correct and that I have stated falsehood.
My advocate can reply about the same.
457
Exts.43 to 46 show that in Col.5(ii)(a)(vii), the
Respondent has declared in his affidavit in Form 26 that FIR
No.75 dated 13.08.2012, Markat Nagar Police Station, Cuttack,
Odisha whereas Ext.19 discloses that the said FIR No.75 was
registered on 08.08.2012 and not on 13.08.2012. The
Respondent in examination-in-chief (Ext.DW) has stated that
Ext.19 is the certified copy of F.I.R. No.75 dated 13.08.2012,
Markat Nagar P.S., Cuttack whereas in his cross-examination has
admitted as follows:-
"It is a fact that Markatnagar P.S. Case No.75
was registered on 08.08.2012 as it appears from
Ext.19. I have mentioned in Col. No.5(ii)(a)(vii)
of my affidavit Form 26 (Ext.43, Ext.44, Ext.45
and Ext.46) that F.I.R. No.75 dated 13.08.2012,
Markatnagar Police Station, Cuttack, Odisha is
pending against me. The date '13.08.2012' is a
typographical error on my part and it should
have been reflected as '08.08.2012'."
Q. Please look at your evidence on affidavit
marked as Ext.DW at page no.73 wherein in the
sub-paragraph (first sentence), you have
mentioned 'Ext.19 is the certified copy of F.I.R.
No.75 dated 13.08.2012 of Markatnagar P.S.,
Cuttack' and the same is also a false statement.
Ans. My advocates can only reply on the same.
458
Thus, according to the learned counsel for the
Election Petitioner, the date of F.I.R. declared in Col.5(ii)(a)(vii)
of the affidavit in Form 26 is a false declaration.
Exts.43 to 46 show that in Col.5(ii)(a)(viii), the
Respondent has declared in his affidavit in Form 26 that FIR
No.69 dated 19.07.2012, Markat Nagar Police Station, Cuttack,
Odisha whereas Ext.20 discloses that the said FIR No.69 was
registered on 17.07.2012 and not on 19.07.2012. The
Respondent in examination-in-chief (Ext.DW) has admitted as
follows:-
"Ext.20 is the certified copy of F.I.R. No.69
dated 17.07.2012 of Markat Nagar P.S.,
Cuttack"
In his cross-examination, the Respondent has
admitted as follows:-
"It is a fact that Markatnagar P.S. Case No.69
was registered on 17.07.2012 as it appears from
Ext.20. I have mentioned in Col. No.5(ii)(a)(viii)
of my affidavit in Form 26 (Ext.43, Ext.44,
Ext.45 and Ext.46) that F.I.R. No.69 dated
19.07.2012, Markatnagar Police Station,
Cuttack, Odisha is pending against me. The date
'19.07.2012' is a typographical error on my part
459
and it should have been reflected as
'17.07.2012'. While mentioning the offences
under Col. No.5(ii)(c)(v) of my affidavit in Form
26 (Ext.43, Ext.44, Ext.45 and Ext.46), I have
left out the offence under section 188 of the
Indian Penal Code and it was a clerical error."
Thus, according to the learned counsel for the
Election Petitioner, the date of F.I.R. declared in Col.5(ii)(a)(viii)
and the offences mentioned under Col.5(ii)(c)(v) of the affidavit
in Form 26 is a false declaration.
Exts.43 to 46 show that in Col.5(ii)(a)(xii), the
Respondent has declared in his affidavit in Form 26 that FIR
No.34 dated 06.09.2007 of Vigilance Police Station, Cuttack is
registered against him whereas Ext.26 reveals that the FIR
No.34 dated 06.09.2007 of Vigilance Police Station, Cuttack was
never registered against the Respondent. FIR No.34 dated
06.09.2007 was registered against the Respondent and others in
Bhubaneswar Vigilance Police Station which the Respondent has
suppressed in his affidavit in Form 26 that such a case is
registered against him in Bhubaneswar Vigilance Police Station.
Thus, the Respondent has given false declaration in
Col.5(ii)(a)(xii) in his affidavit in Form 26 that FIR No.34 dated
460
06.09.2007 is registered against him by the Vigilance Police
Station, Cuttack.
The Election Petitioner in his examination-in-chief
(Ext.36) has stated as follows:-
"That the Respondent has mentioned in column
5(ii)(a)(xii) of his affidavit filed in Form 26 along
with his nomination papers (marked Exhibits 1
to 4 and 32 to 35) that FIR No.34 dated
06.09.2007 of Vigilance Police Station, Cuttack,
Odisha is pending against him whereas the FIR
No.34 dated 06.09.2007 of Vigilance Police
Station, Cuttack has not been registered against
the Respondent. I have filed the certified copy of
the FIR no.34/2007 marked as Exhibit-26 which
shows that the said FIR is not registered against
the Respondent."
The Election Petitioner in his cross-examination has
stated as follows:-
"I have filed Ext.26 which relates to Cuttack
Vigilance P.S. Case No.34 dated 31.08.2007
under section 13(2) read with section
13(1)(c)(d) of P.C. Act and sections 419/120-B
of the Indian Penal Code which corresponds to
T.R. No.16 of 2010 pending in the Court of
learned Special Judge (Vigilance), Cuttack
461
against Khitindranath Mohanty and Bijay Kumar
Marandi and others and also the charge sheet
submitted in the said case to show that such a
case is not pending against the Respondent
Mohammed Moquim, even though in the affidavit
filed by the Respondent in Form No.26 in
Column No.5(i)(a)(xii), it is mentioned that
F.I.R. No.34 dated 06.09.2007 of Vigilance
police station, Cuttack, Odisha is pending
against him and its T.R. Case number and the
offences have not been mentioned in 5(i)(b) and
5(ii)(c) respectively.
The Respondent in examination-in-chief (Ext.DW)
has admitted as follows:-
"Ext.26 is the certified copy of F.I.R. and entire
order sheet of V.G.R. No.34/2007 corresponding
to T.R. No.16/2010 pending before Special
Judge, Vigilance, Cuttack, which relates to
Cuttack Vigilance P.S. Case No.34 dated
31.08.2007. xxx xxx xxx Order Sheet of T.R.
No.16/2010 pending in the Court of Spl. Judge
(Vigilance) Cuttack reflects that I am not an
accused nor my name finds place in the charge
sheet."
The Respondent in his cross-examination has
admitted as follows:-
462
"Ext.43 is the original affidavit in Form 26 filed
by me before the Returning Officer on
04.04.2019 which was sworn before the Notary
Public on 03.04.2019. While mentioning pending
criminal cases against me in the affidavit in
Form 26 (Ext.43, Ext.44, Ext.45 and Ext.46)
under Col. No.5(ii)(a)(xii), I have mentioned
that F.I.R. No.34 dated 06.09.2007, Vigilance
Police Station, Cuttack, Odisha is pending
against me. It is a fact that Cuttack Vigilance
P.S. Case No.34 dated 31.08.2007 was
registered under section 13(2) read with section
13(1)(c)(d) of the Prevention of Corruption Act
and sections 419/120-B of the Indian Penal Code
and by seeing such F.I.R. which has been
marked as Ext.26, I find that the same was
registered against one Khitindranath Mohanty,
Treasury Officer and Bijaya Kumar Marandi,
Accountant, Kendrapara Treasury and others
and I have no connection with Ext.26 nor I am
an accused in the said case which corresponds
to T.R. No.16 of 2010 pending in the Court of
learned Special Judge (Vigilance), Cuttack. It is
not a fact that I have given false declaration in
Col. No.5(ii)(a)(xii) of my affidavit in Form 26
(Ext.43, Ext.44, Ext.45 and Ext.46) about the
pendency of F.I.R. No.34 dated 06.09.2007,
Vigilance Police Station, Cuttack, Odisha against
me, even though the said case is no way
connected with me. In fact, it was a
463
typographical error to mention about the same
in such column."
Thus, according to the learned counsel for the
Election Petitioner, the declaration made in Col.5(ii)(a)(xii) that
FIR No.34 dtd. 06.09.2007, Vigilance Police Station, Cuttack,
Odisha in the affidavit in Form 26 is a false declaration.
The Election Petitioner in his examination-in-chief
has stated as follows:-
"That the Respondent in his affidavit filed in
Form 26 along with his nomination papers has
suppressed the fact that FIR no.34 dated
06.09.2007 of Vigilance PS, Bhubaneswar has
been registered against him and Ors. U/s.120-B/
467/468/471/420 IPC and U/s.13(2) r/w
13(1)(d) of PC Act. I have filed the certified copy
of the said FIR no.34 dated 06.09.2007 of
Bhubaneswar Vigilance PS corresponding to T.R.
Case no.41/2013 pending before Spl. Judge
(Vig.), Bhubaneswar marked as Exhibit-30. The
certified copy of the order sheet of T.R. Case
no.41/2013 of the Court of Spl. Judge (Vig.),
Bhubaneswar reveals that the learned trial Court
has taken cognizance of offences against the
Respondent and others on 06.06.2015 and the
Respondent appeared in the said case on
09.10.2015 and had filed an application for bail
464
which was allowed by the learned Spl. Judge
(Vig.), Bhubaneswar. The Respondent on the
date of filing of his nomination i.e., on
02.04.2019 had the very knowledge about the
pendency of the T.R. No.41/2013 in the Court of
Spl. Judge (Vig.), Bhubaneswar corresponding to
FIR no.34 dated 06.09.2007 of Bhubaneswar
Vigilance PS. But, the same has been
suppressed in his affidavit filed in Form 26 along
with his nomination papers. The Respondent has
not disclosed about the pendency of the
FIR/V.G.R No.34 dated 06.09.2007 of Vigilance
Police Station, Bhubaneswar, Odisha against him
and about the pendency of T.R. No.41/2013 in
the Court of Spl. Judge (Vig.), Bhubaneswar in
his affidavit filed in Form 26 along with his
nomination papers."
The Election Petitioner in his cross-examination has
stated as follows:-
"I have filed Ext.30 to show that Bhubaneswar
Vigilance P.S. Case No.34 dated 06.09.2007
which corresponds to T.R. Case No.41 of 2013
pending in the Court of learned Special Judge,
Vigilance, Bhubaneswar for commission of
offences under section 13(2) read with section
13(1)(d) of the P.C. Act, 1988 and section
420/467/468/471/120-B of the Indian Penal
Code against the Respondent Md. Moquim and
465
other accused persons. The order sheet of the
said case indicates that on 06.06.2015,
cognizance of the offences under section 13(2)
read with section 13(1)(d) of the P.C. Act, 1988
and sections 420/467/468/471/120-B of the
Indian Penal Code has been taken. xxx xxx xxx
Though in Ext.30, the F.I.R. relates to
Bhubaneswar Vigilance P.S., but in the affidavit
of the Respondent Md. Moquim dated
03.04.2019 filed in Form 26 in Col.
No.5(il)(a)(xii), it has been mentioned as
Vigilance Police Station, Cuttack, Odisha, but in
other columns 5(ii)(b)(iii) and 5(ii)(c)(iii), the
T.R. number, name of the Court and offences
have been correctly reflected."
The Respondent in examination-in-chief (Ext.DW)
has admitted as follows:-
"Ext.30 is the certified copy of F.I.R. and entire
order sheet of F.I.R/V.G.R. Case No.34 of 2007
corresponding to T.R. Case No.41 of 2013
pending in the Court of Special Judge, Vigilance.
Bhubaneswar and charge sheet no.08 dated
03.04.2013. I have mentioned the details of
pendency of the said vigilance case against me
in my affidavit in Form 26 (Ext.43, Ext.44,
Ext.45 and Ext.46) in column (5)(ii)(a)(xii),
(5)(ii)(b)(iii) and (5)(ii)(c)(iii) as well as
furnished related information in column
466
(5)(ii)(d), (5)(ii)(e), (5)(ii)(f) and (5)(ii)(g). xxx
xxx xxx It is a fact that in my affidavit, in Form
26 under its Column (5)(ii)(a)(xii), I have
mentioned 'F.I.R. No.34 dated 06.09.2007,
Vigilance Police Station, Cuttack, Odisha' in
place of 'F.I.R. No.34 dated 06.09.2007,
Vigilance Police Station, Bhubaneswar, Odisha'.
Mentioning 'Cuttack' in place of 'Bhubaneswar' is
purely a typographical and clerical error. But, in
other columns (5)(ii)(b)(iii) and (5)(ii)(c)(iii), I
have correctly mentioned the T.R. number,
name of the Court and offences involved in the
said vigilance case."
The Respondent in his cross-examination has
admitted as follows:-
"It is a fact that Bhubaneswar Vigilance P.S.
Case No.34 dated 06.09.2007 was registered
under sections 120-B/467/468/471/420 of the
Indian Penal Code and section 13(2) read with
section 13(1)(d) of the Prevention of Corruption
Act against eight accused persons and I am the
accused no.8 in the said case as per the formal
F.I.R. and it appears from the order sheet of the
said case, which corresponds to T.R. Case No.41
of 2013 pending in the Court of Special Judge,
Vigilance, Bhubaneswar that charge sheet has
been filed in the said case on 06.06.2015 and I
have entered appearance in the said case on
467
09.10.2015 in person and applied for bail and
the same was allowed on the very day, which
appears from the certified copy of the order
sheet and the F.I.R. produced before me which
have been marked as Ext.30. It is a fact that in
Col. No.5(ii)(a)(xii) of my affidavit in Form 26
(Ext.43, Ext.44, Ext.45 and Ext.46), I have not
mentioned about the pendency of Bhubaneswar
Vigilance P.S. Case No.34 dated 06.09.2007
against me, but mentioned F.I.R. No.34 dated
06.09.2007, Vigilance Police Station, Cuttack,
Odisha. Mentioning 'Cuttack' in place of
'Bhubaneswar' was a typographical error on my
part."
Thus, according to the learned counsel for the
Election Petitioner, the Respondent has suppressed to declare
about the FIR No.34 dtd 06.09.2007, Bhubaneswar Vigilance
Police Station made in Col.5(ii)(a)(xii) of the affidavit in Form 26
and has falsely declared that FIR No.34 dtd 06.09.2007, Cuttack
Vigilance Police Station is pending against him.
The Respondent in Col.5(ii)(a)(xiii) has declared that
FIR No.07 dated 30.03.2005 of Vigilance Police Station,
Bhubaneswar is registered against him whereas he has not
correctly declared about the offences in Col.5(ii)(c) of Ext.43. In
col.5(ii)(c)(xiii), the Respondent has declared that the said FIR is
468
registered under section 13(2) r/w section 13(1)(d) of P.C. Act,
1988 and sections 420/120B of IPC whereas the FIR No.07 dated
30.03.2005 of Vigilance Police Station, Bhubaneswar (Ext.29)
was registered under section 13(2) r/w section 13(1)(d) of P.C.
Act, 1988 and section 120B of IPC and not under section 420
IPC.
Further, the Respondent has declared that in
Col.5(ii)(f) that in T.R. No.1/2009, charge was framed on
29.08.2013 whereas Ext.29 discloses that on 10.04.2015
charges were framed in T.R. Case No.1/2009 and not on
29.08.2013. Thus, according to the learned counsel for the
Election Petitioner, the date of framing of charge also declared
by the Respondent is a false declaration.
The Election Petitioner in his examination-in-chief
(Ext.36) has stated as follows:-
"18. That in column 5(ii)(f), the Respondent has
declared that in T.R. No.1/2009, charge was
framed against him on dated 29.08.2013 in the
Court of Spl. Judge (Vig.), Bhubaneswar. The
above declaration that the charge framed on
29.08.2013 is false. In the said case, charge has
been framed on 10.04.2015. I have filed the
certified copy of the order sheet in T.R. Case
469
no.01/2009 of the Court of Spl. Judge (Vig.),
Bhubaneswar marked as Exhibit - 29 which
discloses that in the said case, charge was
framed on 10.04.2015 against the Respondent
and others."
The Election Petitioner in his cross-examination has
stated as follows:-
"I have filed Ext.29 to show that Bhubaneswar
Vigilance P.S. Case No.07 dated 30.03.2005
which corresponds to T.R. Case No.01 of 2009 is
pending in the Court of learned Special Judge,
Vigilance, Bhubaneswar for commission of
offences under section 13(2) read with section
13(1)(d) of the P.C. Act, 1988 and section 120-B
of the Indian Penal Code against the Respondent
Md. Moquim and other accused persons. The
order sheet of the said case indicates that on
22.01.2009, cognizance of the offences under
sections 468/471/420/120-B of the Indian Penal
Code has been taken so far as the Respondent
Md. Moquim is concerned and on 10.04.2015
charge has been framed against the Respondent
Md. Moquim for such offences along with M/s.
Metro Builder Odisha Pvt. Ltd., represented by
Md. Moquim."
The Respondent in examination-in-chief (Ext.DW)
has admitted as follows:-
470
"Ext.29 is the certified copy of F.I.R. and entire
order sheet of F.I.R/V.G.R. Case No.07 of 2005
corresponding to T.R. Case No.01 of 2009
pending in the Court of Special Judge, Vigilance,
Bhubaneswar. I have mentioned the details of
pendency of the said vigilance case against me
in my affidavit in Form 26 (Ext.43, Ext.44,
Ext.45 and Ext.46) in columns (5)(ii)(a)(xiii),
(5)(ii)(b)(xiii) and (5)(ii)(c)(xiii) as well as
furnished related information in columns
(5)(ii)(d), (5)(ii)(e)(xiii), (5)(ii)(f) and
(5)(ii)(g)."
The Respondent in his cross-examination has stated
as follows:-
Q. In which column of 5(ii)(c) of your affidavit in
Form 26 (Ext.43, Ext.44, Ext.45 and Ext.46),
you have declared the offences under which
F.I.R. No.07 dated 30.03.2005, Vigilance Police
Station, Bhubaneswar, Khurda, Odisha was
registered as per your declaration made in Col.
No. 5(ii)(a)(xiii)?
Ans. It is in Col. No.5(ii)(c)(xiii)
Q. Please verify the F.I.R. No.07 dated
30.03.2005, Vigilance Police Station,
Bhubaneswar, Khurda, Odisha marked as Ext.29
and it appears that it was not registered under
section 420 of the Indian Penal Code, which
471
offence you have declared while mentioning the
details of the offences in Col. No.5(ii)(c)(xiii)?
Ans. Yes, the case was not registered for the
offence under section 420 of the Indian Penal
Code. Mentioning such offence in Col.
No.5(ii)(c)(xiii) was a clerical mistake.
Q. In Col. No.5(ii)(f), you have declared that in
T.R. No.01/2009, charge was framed on dated
29.08.2013 in the Court of Special Judge,
Vigilance, Bhubaneswar, but Ext.29 indicates
that charge was framed on 10.04.2015. What do
you say about the same?
Ans. It was a typographical error.
Thus, according to the learned counsel for the
Election Petitioner, the Respondent has made false declaration
regarding offences in Col.5(ii)(c)(xiii) and the date of framing of
charge in Col. 5(ii)(f) of the affidavit in Form 26.
Exts.43 to 46 show that in Col.5(ii)(b)(xii), the
Respondent has declared in his affidavit in Form 26 that G.R.
Case No.1568/2010 is pending in the Court of S.D.J.M.(S),
Cuttack whereas Ext.22 reflects that G.R. Case No.1568/2010
was pending in the Court of J.M.F.C. (City), Cuttack and it was
never pending in the Court of S.D.J.M. (S), Cuttack.
472
The Respondent in examination-in-chief (Ext.DW)
has stated as follows:-
"Ext.22 is the certified copy of F.I.R.
No.231/2010 dated 27.12.2010 of Madhupatna
P.S., Cuttack corresponding to G.R. Case
No.1568/2010 and the order sheet of G.R. Case
No.1568/2010 pending in the Court of S.D.J.M.
(S) Cuttack."
The Respondent in his cross-examination has
admitted as follows:-
"It is a fact that in Col.5(ii)(b)(xii) in my affidavit
in Form 26 (Ext.43, Ext.44, Ext.45 and Ext.46),
while mentioning G.R. Case No.1568/2010, I
have indicated the same to be pending in the
Court of S.D.J.M.(S), Cuttack. Ext.22 reflects
that G.R. Case No.1568/2010 was pending in
the Court of J.M.F.C. (City), Cuttack. The wrong
noting made in such column regarding the name
of the Court was a clerical error."
"It is not a fact that I have stated falsely of my
evidence on affidavit (Ext. DW) that G.R. Case
No.1568/2010 is pending in the Court of
S.D.J.M. (S), Cuttack though the same was
pending in the Court of J.M.F.C. (City), Cuttack.
My Advocate(s) can say as to why the name of
473
the Court has been incorrectly mentioned in the
evidence on affidavit in page no.75."
Thus, according to the learned counsel for the
Election Petitioner, the Respondent has made false declaration
regarding the pendency of G.R. Case no.1568/2010 in the Court
of S.D.J.M.(S), Cuttack, in place J.M.F.C. (City), Cuttack in
Col.5(ii)(b)(xii) of the affidavit in Form 26.
Exts.43 to 46 show that in Col.5(ii)(c)(xi), the
Respondent has declared in his affidavit in Form 26, commission
of offence u/s 147/148/353/332/336/337/427/323/324/506/149
of I.P.C. whereas Ext.21 shows that the said F.I.R. was
registered u/s 147/148/353/332/336/337/427/323/324/506/149
of I.P.C. and Section 3 P.D.P.P. Act/7 Crl. A. Act/96 O.U.P. Act,
2003. The Respondent in his affidavit in Form 26 at
Col.5(ii)(c)(xi) has not disclosed about the registration of the
said FIR u/s 3 P.D.P.P. Act/7 Crl. A. Act/96 O.U.P. Act, 2003.
The Respondent in his examination-in-chief (Ext.DW)
has admitted as follows:-
"Ext.21 is the certified copy of F.I.R.
No.113/2011 dated 22.09.2011 of Purighat P.S.,
Cuttack corresponding to G.R. Case
No.1168/2011 along with the final form of G.R.
474
Case No.1168/2011 pending in the Court of
S.D.J.M.(S), Cuttack. I have mentioned the
details of pendency of the said criminal case
against me in my affidavit in Form 26 (Ext.43,
Ext.44, Ext.45 and Ext.46) in columns
(5)(ii)(a)(ix), (5)(ii)(b)(xi) and (5)(ii)(c)(xi) as
well as furnished related information in column
(5)(ii)(d), (5)(ii)(e), (5)(ii)(f) and (5)(ii)(g)."
The Respondent in his cross-examination has
admitted as follows:-
"71. It is a fact that while mentioning the
offences in Col.5(ii)(c)(xi) in my affidavit in
Form 26 (Ext.43, Ext.44, Ext.45 and Ext.46), I
have left out the offences under sections 3
P.D.P.P. Act, 7 Criminal Law Amendment Act and
96 OUP Act, 2003 though the F.I.R. (Ext.21)
reflects registration of the offences under those
three offences apart from the offences which I
have mentioned in the said column. The same
was a clerical error. xxx xxx xxx My advocate(s)
can only say about the omission of the three
offences in the evidence on affidavit."
The Election Petitioner in the election petition has
pleaded and in his evidence on affidavit Ext.36 has stated as
follows:-
475
"The Respondent in column (5)(ii)(d) has
declared that two charge related to wrongful
restraint (IPC section 341) is registered against
him but in column (5)(ii)(c) sl. no.(v), (vi) and
(xii), he has declared three cases under section
341 of the IPC is pending against him. Similarly,
the Respondent in column (5)(ii)(d) has declared
that two charge related to obscene acts and
songs (IPC section 294) is registered against
him but in column (5)(ii)(c) sl. nos.(i), (ii), (iv),
(v), (vi) and (xii), he has declared six cases
under section 294 of the IPC is pending against
him. So also, the Respondent in column
(5)(ii)(d) has declared five charges related to
cheating and dishonestly inducing delivery of
property (IPC section 420) are registered
against him whereas in column (5)(ii)(c) sl.
nos.(iii), (vii) to (x) and (xiii), he has declared
six cases under section 420 of the IPC is pending
against him. The Respondent in column
(5)(ii)(d) has declared five charges related to
punishment of criminal conspiracy (IPC section
120-B) are registered against him whereas in
column (5)(ii)(c) sl. nos.(iii),(vii) to (x) and
(xiii), he has declared six cases under section
120B of the IPC is pending against him. The
Respondent in column (5)(ii)(d) has declared
two charges related to mischief by injury to
public road, bridge, river, channel (IPC section
143) are registered against him whereas in
476
column (5)(ii)(c) sl. nos.(i), (iv) and (v), he has
declared three cases under section 143 of the
IPC is pending against him. The Respondent in
column (5)(ii)(d) has declared two charge
related to mischief by doing any act in respect of
any public property (section 7/3 and 7/4 of
P.D.P.P. Act) are registered against him whereas
in column (5)(ii)(c) sl. nos.(i),(ii),(xii), he has
declared three cases under the P.D.P.P Act are
pending against him. The Respondent in column
(5)(ii)(c) sl. nos.(iii),(vii) to (x) and (xiii) has
declared about the cases pending against him
under section 13(2) read with section 13(1)(d)
of P.C. Act, 1988 but has not declared about the
same in column (5)(ii)(d) of the affidavit filed in
Form 26 along with his nomination papers. Thus,
the Respondent has made false declaration in
the affidavit filed in Form 26 along with his
nomination papers about the pendency of
criminal cases against him. Therefore, the
election of the Respondent from 90 - Barabati
Cuttack Assembly Constituency is to be declared
null and void."
The Respondent in his examination-in-chief (Ext.DW)
has stated as follows:-
"In column (5)(ii)(c) against the heading
'Sections of the concerned Acts/Codes involved,
I have correctly furnished the required
477
information vide its sl. nos.(v), (vi) and (xii) that
section 341 of IPC is involved in the pending
cases against me. Similarly, in column (5)(ii)(d)
against the heading 'Brief description of offence',
I have correctly disclosed that section 341 of IPC
relates to the offence of wrongful restraint. xxx
xxx xxx Therefore, the allegation made by the
Election Petitioner pointing out the number of
charges/cases mentioned in columns (5)(ii)(c)
and (5)(ii)(d) is unnecessary and frivolous and
as such the same is legally not sustainable. In
column (5)(ii)(c) against the heading 'Sections
of the concerned Acts/Codes involved', I have
correctly furnished the required information vide
its sl. nos.(i), (ii), (iv), (v), (vi) and (xii) that
section 294 of IPC is involved in the pending
cases against me. Similarly, in column (5)(ii)(d)
against the heading 'Brief description of offence',
I have correctly disclosed that section 294 of IPC
relates to the offence of obscene acts and songs.
xxx xxx xxx Therefore, the allegation made by
the Election Petitioner pointing out the number
of charges/cases mentioned in columns (5)(ii)(c)
and (5)(ii)(d) is unnecessary and frivolous and
as such the same is legally not sustainable. In
column (5)(ii)(c) against the heading 'Sections
of the concerned Acts/Codes involved', I have
correctly furnished the required information vide
its sl. nos.(iii), (vii) to (x) and (xiii) that section
420 of IPC is involved in the pending cases
478
against me. Similarly, in column (5)(ii)(d)
against the heading 'Brief description of offence',
I have correctly disclosed that section 420 of IPC
relates to the offence of cheating and
dishonestly inducing delivery of property. xxx
xxx xxx Therefore, the allegation made by the
Election Petitioner pointing out the number of
charges/cases mentioned in columns (5)(ii)(c)
and (5)(ii)(d) is unnecessary and frivolous and
as such the same is legally not sustainable. In
column (5)(ii)(c) against the heading 'Sections
of the concerned Acts/Codes involved', I have
correctly furnished the required information vide
its sl. nos.(iii), (vii) to (x) and (xiii) that section
120B of IPC is involved in the pending cases
against me. Similarly, in column (5)(ii)(d)
against the heading 'Brief description of offence',
I have correctly disclosed that section 120B of
IPC relates to the offence of criminal conspiracy.
xxx xxx xxx Therefore, the allegation made by
the Election Petitioner pointing out the number
of charges/cases mentioned in columns (5)(ii)(c)
and (5)(ii)(d) is unnecessary and frivolous and
as such the same is legally not sustainable. In
column (5)(ii)(c) against the heading 'Sections
of the concerned Acts/Codes involved', I have
correctly furnished the required information vide
its sl. nos.(i), (iv) and (v) that section 143 of
IPC is involved in the pending cases against me.
Similarly, in column (5)(ii)(d) against the
479
heading 'Brief description of offence', I have
correctly disclosed that section 143 of IPC
relates to the offence for punishment whoever is
a member of an unlawful assembly. xxx xxx xxx
Therefore, the allegation made by the Election
Petitioner pointing out the number of
charges/cases mentioned in columns (5)(ii)(c)
and (5)(ii)(d) is unnecessary and frivolous and
as such the same is legally not sustainable. In
column (5)(ii)(c) against the heading 'Sections
of the concerned Acts/Codes involved', I have
correctly furnished the required information vide
its sl. nos.(i), (ii), (xii) that sections 7/3 and 7/4
of P.D.P.P. Act are involved in the pending cases
against me. Similarly, in column (5)(ii)(d)
against the heading 'Brief description of offence',
I have correctly disclosed that Sections 7/3 and
7/4 of P.D.P.P. Act relate to the offence of
mischief by doing any act in respect of any
public property.xxx xxx xxx Therefore, the
allegation made by the Election Petitioner
pointing out the number of charges/cases
mentioned in columns (5)(ii)(c) and (5)(ii)(d) is
unnecessary and frivolous and as such the same
is legally not sustainable."
"In column (5)(ii)(c) under the heading
'Sections(s) of concerned Acts/Codes involved
(give no. of the Section, e.g. Section....of IPC,
etc.)' vide its sl. no.(iii), I have mentioned
480
'Commission of offences U/s. 120(B), 467, 468,
471, 420 and section 13(2), 13(1)(d) of P.C.
Act, 1988', vide its sl. no.(vii), I have mentioned
'Commission of offences U/s. 420, 120(B) IPC
and 13(2) r/w 13(1)(d) of P.C. Act, 1988', vide
its sl. no.(viii), I have mentioned 'Commission of
offences U/s. 13(2) r/w 13(1)(d) of P.C. Act,
1988 and sections 420, 120(B) of IPC', vide its
sl. no.(ix), I have mentioned 'Commission of
offences U/s. 13(2) r/w 13(1)(d) of P.C. Act,
1988 and sections 420, 120(B) of IPC', vide its
sl. no.(x), I have mentioned 'Commission of
offences U/s. 13(2) r/w 13(1)(d) of P.C. Act,
1988 and U/s 120-B, 420 IPC' and vide its sl.
no.(xiii), I have mentioned 'Commission of
offences U/s. 13(2) r/w 13(1)(d) of P.C. Act,
1988 and sections 420, 120(B) of IPC."
"I have not mentioned in column (5)(ii)(d) of
the affidavit under the heading 'Brief description
of offence' with respect to section 13(2) and
section 13(1)(d) of P.C. Act, 1988 as the said
sections of the P.C. Act, 1988 relate to criminal
misconduct by a public servant and the said
sections were not applicable to me as by that
time I was not elected as a M.L.A."
In his cross-examination, the Respondent has stated
as follows:-
481
"In col. no.5(ii)(d) of my affidavit in Form 26
(Ext.43, Ext.44, Ext.45 and Ext.46), where I
have to give brief description of offence, I have
mentioned as to number of charges of a
particular offence was pending against me at the
time of filing of nomination paper. Charge
means, according to me, under which offence,
the case had been registered against me."
"It is a fact that while describing the sections of
concerned Act/Codes involved in col. no.5(ii)(c)
in my affidavit in Form 26 (Ext.43, Ext.44,
Ext.45 and Ext.46) in sl.no.(ii), I have
mentioned one of the offences to be under
section 395 of the Indian Penal Code, but in col.
no.5(ii)(d) while giving brief description of the
offence, I have omitted to mention any case of
offence under section 395 of the Indian Penal
Code to be pending against me. The omission in
col. no.5(ii)(d) was a clerical error."
"It is a fact that though I have mentioned six
cases for commission of offences under section
13(2) read with section 13(1)(d) of the
Prevention of Corruption Act to be pending in
col. no.5(ii)(c) of my affidavit in Form 26
(Ext.43, Ext.44, Ext.45 and Ext.46) at sl.
nos.(iii), (vii), (viii), (ix), (x) and (xiii), but in
col. no.5(ii)(d) of the affidavit, I have omitted to
mention such offences (as those offences are
applicable to Mr. Vinod Kumar and other
482
Government officials, who are the co-accused in
such cases and they were public servants)."
Q. If you have omitted to mention the offence
under section 13(2) read with section 13(1)(d)
of the Prevention of Corruption Act to be
pending in col. no.5(ii)(d) of your affidavit in
Form 26 (Ext.43, Ext.44, Ext.45 and Ext.46),
why then you mentioned those offences in col.
no.5(ii)(c) at sl. nos.(iii), (vii), (viii), (ix), (x)
and (xiii)?
Ans. As the six cases were registered under the
offence under section 13(2) read with section
13(1)(d) of the Prevention of Corruption Act, I
thought it proper to mention the same in col.
no.5(ii)(c) whereas deleting the same in col.
no.5(ii)(d) as those offences are not applicable
to me.
Q. When those six cases were registered against
you and the co-accused persons who were
Government servants under section 13(2) read
with section 13(1)(d) of the Prevention of
Corruption Act, whether you yourself decided
that such offences are not applicable to you or
there was any decision of the Court in that
respect?
483
Ans. My lawyers who verified my affidavit in
Form 26 suggested to omit such offences in col.
no.5(ii)(d) as those were not applicable to me.
Q. If the offences under section 13(2) read with
section 13(1)(d) of the Prevention of Corruption
Act are not applicable to you, then while making
declaration about the criminal cases in Format
C-1 in news papers (Ext.B/1, Ext.C/1, Ext.D/1),
why did you mention such offences?
Ans. Since F.I.R. of those cases were registered
under section 13(2) read with section 13(1)(d)
of the Prevention of Corruption Act, as per the
advice of my advocate(s), I mentioned the same
in Ext.B/1, Ext.C/1, Ext.D/1.
The Respondent, in his cross-examination, has stated
as follows:-
"It is a fact that though I have mentioned the
offence under section 427 of the Indian Penal
Code in four cases to be pending against me in
col. no.5(ii)(c) vide sl. nos.(ii), (vi), (xi) and
(xii), but I have mentioned in col. no.5(ii)(d)
that three charges under section 427 of the
Indian Penal Code were pending against me. It
was not required on my part to mention how
many charges of a particular offence were
pending against me in col. no.5(ii)(d) and only
brief description of the offence was required to
484
be mentioned in it which I have mentioned, but
due to clerical mistake, I have omitted to
mention one more charge under section 427 of
the Indian Penal Code to be pending against me
in col. no.5(ii)(d)."
Q. If it was not required at all to mention the
number of charges of a particular offence in col.
no.5(ii)(d), but you have mentioned the same in
such column, whether you were required to
mention the same correctly or wrongly?
Ans. My advocate can only reply about the
same.
"It is a fact that though I have mentioned the
offence under section 341 of the Indian Penal
Code in three cases to be pending against me in
col. no.5(ii)(c) vide sl. nos.(v), (vi) and (xii), but
I have mentioned in col. no.5(ii)(d) that two
charges under section 341 of the Indian Penal
Code were pending against me. I have omitted
to mention one more charge under section 341
of the Indian Penal Code to be pending against
me in col. no.5(ii)(d) on account of clerical
error."
"It is a fact that though I have mentioned the
offence under section 294 of the Indian Penal
Code in six cases to be pending against me in
col. no.5(ii)(c) vide sl. nos.(i), (ii), (iv), (v), (vi)
485
and (xii), but I have mentioned in col. no.5(ii)(d)
that two charges under section 294 of the Indian
Penal Code were pending against me. I have
omitted to mention four more charges under
section 294 of the Indian Penal Code to be
pending against me in col. no.5(ii)(d) on account
of clerical error."
"It is a fact that though I have mentioned the
offence under section 149 of the Indian Penal
Code in seven cases to be pending against me in
col. no.5(ii)(c) vide sl. nos.(i), (ii), (iv), (v), (vi),
(xi) and (xii), but I have mentioned in col.
no.5(ii)(d) that five charges under section 149 of
the Indian Penal Code were pending against me.
I have omitted to mention two more charges
under section 149 of the Indian Penal Code to be
pending against me in col. no.5(ii)(d) on account
of clerical error."
"It is a fact that though I have mentioned the
offence under section 332 of the Indian Penal
Code in two cases to be pending against me in
col.no.5(ii)(c) vide sl. nos.(ii) and (xi), but I
have mentioned in col. no.5(ii)(d) that three
charges under section 332 of the Indian Penal
Code were pending against me. I have added
one more charge under section 332 of the Indian
Penal Code to be pending against me in col.
no.5(ii)(d) on account of clerical error."
486
"It is a fact that though I have mentioned the
offence under section 420 of the Indian Penal
Code in six cases to be pending against me in
col.no.5(ii)(c) vide sl. nos.(iii), (vii), (viii), (ix),
(x) and (xiii), but I have mentioned in col.
no.5(ii)(d) that five charges under section 420 of
the Indian Penal Code were pending against me.
I have omitted to mention one more charge
under section 420 of the Indian Penal Code to be
pending against me in col. no.5(ii)(d) on account
of clerical error."
"It is a fact that though I have mentioned the
offence under section 120-B of the Indian Penal
Code in six cases to be pending against me in
col.no.5(ii)(c) vide sl. nos.(iii), (vii), (viii), (ix),
(x) and (xiii), but I have mentioned in col.
no.5(ii)(d) that five charges under section 120-B
of the Indian Penal Code were pending against
me. I have omitted to mention one more charge
under section 120-B of the Indian Penal Code to
be pending against me in col. no.5(ii)(d) on
account of clerical error."
"It is a fact that though I have mentioned the
offence under section 143 of the Indian Penal
Code in three cases to be pending against me in
col.no.5(ii)(c) vide sl. nos.(i), (iv) and (v) but I
have mentioned in col. no.5(ii)(d) that two
charges under section 143 of the Indian Penal
Code were pending against me. I have omitted
487
to mention one more charge under section 143
of the Indian Penal Code to be pending against
me in col. no.5(ii)(d) on account of clerical
error."
"It is a fact that though I have mentioned the
offence under sections 7/3 and 7/4 of the
P.D.P.P. Act in three cases to be pending against
me in col.no.5(ii)(c) vide sl. nos.(i), (ii) and
(xii), but I have mentioned in col. no.5(ii)(d)
that two charges under section 7/3 and 7/4 of
the P.D.P.P. Act were pending against me. I
have omitted to mention one more charge under
section 7/3 and 7/4 of the P.D.P.P. Act to be
pending against me in col. no.5(ii)(d) on account
of clerical error."
"It is a fact that though I have mentioned the
offence under sections 9 and 96 of U.P. Act in
three cases to be pending against me in
col.no.5(ii)(c) vide sl. nos.(iv), (v) and (xii), but
I have mentioned in col. no.5(ii)(d) that two
charges under sections 9 and 96 of U.P. Act
were pending against me. I have omitted to
mention one more charge under sections 9 and
96 of U.P. Act to be pending against me in col.
no.5(ii)(d) on account of clerical error."
The Respondent, in order to show that he had made
correct declaration in his affidavit in Form 26 (Exts.43 to 46),
488
has exhibited Ext.B/1, Ext.C/1 and Ext.D/1 and in his
examination-in-chief has stated as follows:-
"In compliance with the instruction of the
Returning Officer (P.W.3), I published in
newspapers on three occasions, declaration
about criminal cases declaring therein all the 13
criminal cases pending against me."
In his cross-examination, the Respondent has stated
as follows:-
"85. I have made identical declaration about
criminal cases in Format C-1 in three
newspapers already marked as Ext.B/1, Ext.C/1
and Ext.D/1."
Mr. Kanungo, learned counsel argued that the
Respondent in Ext.B/1, Ext.C/1 and Ext.D/1 has made false and
misleading declarations in the newspaper in violation of the
direction of the Constitution Bench judgment of the Hon'ble
Supreme Court reported in Public Interest Foundation
(supra):
(i) In sl. no.1 of Ext.B/1, Ext.C/1, Ext.D/1, the
Respondent has declared that the G.R. Case
No.1722/18 is registered u/s. 143/294/431/149
IPC and 7/4 of PDPP Act whereas Ext.17
discloses that the FIR of the said G.R. Case was
489
registered u/s.147/148/342/450/395/332/427/
354/294/506/149 IPC and 7/3 of PDPP Act.
The Respondent, in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. Please verify Ext.B/1, Ext.C/1 and Ext.D/1
and see that in sl. no.1 so far as G.R. Case
No.1722/2018 which was pending in the Court of
S.D.J.M., Cuttack, Ext.17 shows that the
offences you have declared against such column
are false declaration, what do you say?
Ans. My advocate(s) can only reply."
(ii) In sl. no.2 of Ext.B/1, Ext.C/1, Ext.D/1, the
Respondent has declared that the G.R. Case
No.1723/18 is registered u/s. 147/148/342/450/
395/32/427/354/294/506/149 IPC and 7/3 of
PDPP Act whereas Ext.18 discloses that the FIR
of the said G.R. Case was registered u/s.
143/294/431/149 IPC and 7/4 of PDPP Act.
The Respondent, in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. Please verify Ext.B/1, Ext.C/1 and Ext.D/1
and see that in sl. no.2 so far as G.R. Case
No.1723/2018 which was pending in the Court of
S.D.J.M., Cuttack, Ext.18 shows that the
490
offences you have declared against such column
are false declaration, what do you say?
Ans. My advocate(s) can only reply."
(iii) In sl. no.4 of Ext.B/1, Ext.C/1, Ext.D/1, the
Respondent has declared that the G.R. Case
No.1137/12 is registered u/s. 143/294/283/149
I.P.C. and 9 of OUP Act whereas Ext.19 discloses
that the F.I.R. of the said G.R. Case was also
registered u/s. 96 of the OUP Act and not u/s. 9
of OUP Act.
(iv) In sl. no.5 of Ext.B/1, Ext.C/1, Ext.D/1, the
Respondent has declared that the G.R. Case
No.1020/12 is registered u/s. 143/431/
186/341/426/440/294/506/149 I.P.C. and 96 of
OUP Act, whereas Ext.20 discloses that the
F.I.R. of the said G.R. Case was also registered
u/s. 188 I.P.C. which the Respondent has
suppressed.
The Respondent in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. Please verify Ext.B/1, Ext.C/1 and Ext.D/1
and see that in sl.no.5 so far as G.R. Case
No.1020/2012 which was pending in the Court of
S.D.J.M., Cuttack, Ext.20 shows that the offence
under section 188 of the Indian Penal Code has
491
not been declared in Ext.B/1, Ext.C/1 and
Ext.D/1, what do you say?
Ans. My advocate(s) can only reply."
(v) In sl. no.6 of Ext.B/1, Ext.C/1, Ext.D/1, the
Respondent has declared that G.R. Case
No.85/12 and offences u/s. 147/341/323/294/
353/427/149 IPC pending in the Court of Spl.
Judge, Vigilance, Cuttack whereas no G.R. Case
No.85/2012 is pending against the Respondent
before the Spl. Judge, Vigilance, Cuttack u/s.
147/341/323/294/353/427/149 I.P.C. Further,
Ext.23 discloses that V.G.R. 85/2012 is pending
against the Respondent in the Court of Spl.
Judge, Vigilance, Cuttack and not G.R. 85/12,
and the said V.G.R. Case 85/2012 is registered
u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and u/s
420/120B I.P.C.
The Respondent, in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. Please verify Ext.B/1, Ext.C/1 and Ext.D/1
and see that in sl.no.6 so far as G.R. Case
No.85/2012 which was pending in the Court of
Special Judge, Vigilance, Cuttack, Ext.23 shows
that the case number is actually V.G.R.
No.85/2012 and the offences you have declared
against such column are false declaration, what
do you say?
492
Ans. My advocate(s) can only reply."
(vi) In sl. no.7 of Ext.B/1, Ext.C/1, Ext.D/1, the
Respondent has declared that G.R. Case
No.84/12 is pending in the Court of Spl. Judge,
Vigilance, Cuttack whereas no G.R. Case
No.84/2012 is pending against the Respondent
before the Spl. Judge, Vigilance, Cuttack,
whereas Ext.25 discloses that the V.G.R. Case
No.84/2012 is pending against the Respondent
before the Spl. Judge, Vigilance, Cuttack and not
G.R. Case No.84/12.
The Respondent, in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. Please verify Ext.B/1, Ext.C/1 and Ext.D/1
and see that in sl.no.7 so far as G.R. Case
No.84/2012 which was pending in the Court of
Special Judge, Vigilance, Cuttack, Ext.25 shows
that the case number is actually V.G.R. Case
No.84/2012 and you have made false
declaration about the case, what do you say?
Ans. My advocate(s) can only reply."
(vii) In sl. no.8 of Ext.B/1, Ext.C/1, Ext.D/1,
the Respondent has declared that G.R. Case
No.83/12 is pending against him before the Spl.
Judge, Vigilance, Cuttack u/s. 13(2) r/w
13(1)(d) of P.C. Act, whereas no G.R. Case
493
No.83/2012 is pending against the Respondent
before the Spl. Judge, Vigilance, Cuttack, and
Ext.24 discloses that the case number is V.G.R.
Case No.83/2012 and not G.R. Case No.83/12.
Further, the F.I.R. of the said case was
registered u/s. 13(2) r/w 13(1)(d) of PC Act,
1988 and u/s. 420/120B I.P.C. So, the
Respondent in Ext.B/1, C/1 and D/1 has
suppressed to declare about the pendency of the
said case u/s. 420 and 120B I.P.C.
The Respondent, in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. Please verify Ext.B/1, Ext.C/1 and Ext.D/1
and see that in sl.no.8 so far as G.R. Case
No.83/2012 which was pending in the Court of
Special Judge, Vigilance, Cuttack, Ext.24 shows
that the case number is actually V.G.R.
No.83/2012 and the offences you have declared
against such column are false declaration and
the offences under sections 420 and 120-B of
the Indian Penal Code under which the case was
actually registered have not been declared in
Ext.B/1, Ext.C/1 and Ext.D/1, what do you say?
Ans. My advocate(s) can only reply."
(viii) In sl. no.9 of Ext.B/1, Ext.C/1, Ext.D/1,
the Respondent has declared that G.R. Case
No.680/2012 is pending in the Court of S.D.J.M.,
494
Bhubaneswar u/s. 420/120B I.P.C. and 13(2)
r/w 13(1)(d) of P.C. Act, whereas Ext.27
discloses that the said case was never pending
before the S.D.J.M., Bhubaneswar and the said
case was pending in the Court of J.M.F.C. (O),
Bhubaneswar from its inception and the F.I.R.
was registered u/s. 417/341/323/294/506/379/
120B/34 I.P.C.
The Respondent, in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. Please verify Ext.B/1, Ext.C/1 and Ext.D/1
and see that in sl.no.9 so far as G.R. Case
No.680/2012 which was pending in the Court of
S.D.J.M., Bhubaneswar, Ext.27 shows that the
case was actually pending in the Court of
J.M.F.C.(O), Bhubaneswar and the offences you
have declared against such column are false
declaration, what do you say?
Ans. My advocate(s) can only reply."
(ix) In sl. no.11 of Ext.B/1, Ext.C/1, Ext.D/1,
the Respondent has declared that G.R. Case
No.1168/11 is registered u/s. 147/148/353/332/
336/337/427/323/324/506/149 I.P.C. whereas
Ext.21 discloses that the F.I.R. of the said G.R.
Case was registered u/s. 147/148/353/332/
336/337/427/323/324/506/149 IPC and section
3 of PDPP Act/7 Crl. A. Act/96 OUP Act. The
495
Respondent has suppressed to declare the
offence u/s. 337 I.P.C. and 3 PDPP Act/7 Crl. A.
Act/96 OUP Act in Ext. B/1, C/1 and D/1.
The Respondent, in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. Please verify Ext.B/1, Ext.C/1 and Ext.D/1
and see that in sl.no.10 so far as G.R. Case
No.1168/2011 which was pending in the Court of
S.D.J.M., Cuttack, Ext.21 shows that the case
was registered not under section 37 of Indian
Penal Code, but you have declared such offence
to be under section 37 of the Indian Penal Code
in Ext.B/1, Ext.C/1 and Ext.D/1 and it was a
false declaration, what do you say?
Ans. My advocate(s) can only reply."
(x) In sl. no.12 of Ext.B/1, Ext.C/1, Ext.D/1, the
Respondent has declared that the G.R. Case
No.1568/10 is pending in the Court of S.D.J.M.
Cuttack u/s. 147/341/323/294/353/427/149 IPC
and section 3 PDPP Act/7 Crl. A. Act/96 OUP Act
whereas Ext.22 discloses that the said case is
pending before the J.M.F.C.(City), Cuttack and
not before the S.D.J.M., Cuttack. Further, F.I.R.
of the said G.R. Case was registered u/s.
147/341/294/353/427/149 I.P.C. and not u/s.
496
147/341/323/294/353/427/149 I.P.C. and
section 3 PDPP Act/7 Crl. A. Act/96 OUP Act.
The Respondent, in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. Please verify Ext.B/1, Ext.C/1 and Ext.D/1
and see that in sl.no.12 so far as G.R. Case No.
1568/2010 which was pending in the Court of
S.D.J.M., Cuttack, but Ext.22 shows that the
case was pending in the Court of J.M.F.C. (City),
Cuttack and you have made false declaration
about the name of the Court in Ext.B/1, Ext.C/1
and Ext.D/1, what do you say?
Ans. My advocate(s) can only reply."
The Respondent, in his cross-examination to the
question put to him in this regard, has stated as follows:-
"Q. After verifying Ext.B/1, Ext.C/1 and Ext.D/1
and the corresponding F.I.Rs., whether you can
say that you have made correct declaration in
the said exhibits?
Ans. My advocate(s) can only reply."
"I knew about the requirement of publication of
details of criminal cases pending against a
candidate in newspapers in three occasions as
per the order of the Hon'ble Supreme Court. It is
497
not a fact that I have deliberately made false
declaration in the publications on each occasion
as per Ext.B/1, Ext.C/1 and Ext.D/1 to mislead
the voters of 90-Barabati Cuttack Assembly
Constituency. My advocate(s) can only say as to
why there are wrong mention about the details
of the criminal cases in Ext.B/1, Ext.C/1 and
Ext.D/1."
Learned counsel for the Respondent objected to all
questions put by the learned counsel for the Election Petitioner
with respect to Exts.17 to 25, Ext.28 and Ext.29 in the cross-
examination to the Respondent as those are beyond the
pleadings.
Mr. Kanungo, learned counsel submitted that the
Respondent himself exhibited Exts.B/1, C/1 and D/1 to show that
he has correctly disclosed about the criminal cases pending
against him which was not a fact. To prove and establish that the
Respondent had made false declaration in the affidavit in Form
26 (Exts.43 to 46) as well as in the newspaper i.e., Exts.B/1, C/1
and D/1 which were contrary to the directions issued by the
Hon'ble Supreme Court of India, the Election Petitioner exhibited
Exts.17 to 25, 28 & 29.
498
To the questions put by the Court, the Respondent
has stated as follows:-
"It is a fact that out of thirteen cases pending
against me at the time of filing of the
nomination papers and the affidavits in Form 26,
one case was of the year 2005, one case was of
the year 2007, one case was of the year 2010,
two cases were of the year 2011, six cases were
of the year 2012 and two cases were of the year
2018. It is a fact that the F.I.R. and other
connected documents of all the thirteen cases
were available with me as well as my
advocate(s) when the nomination papers were
filed and the affidavits in Form 26 were
prepared. I was aware that I should furnish the
correct details about the F.I.R. and G.R. case
numbers, names of Courts, details of offences,
and description of the offences in my affidavits
in Form 26. I am realizing at present that if after
preparation of the affidavits in Form 26, those
would have been verified minutely with
reference to the documents which were
available, the clerical mistakes or typographical
mistakes that have cropped up in the affidavits,
would not have been there. The election was
notified on 28.03.2019 and the last date of filing
of nomination papers along with affidavits in
Form 26 was there till 04.04.2019 and I filed the
499
nomination papers on 02.04.2019 and the
affidavits in Form 26 marked as Ext.43, Ext.44,
Ext.45 and Ext.46 were filed on 04.04.2019.
According to me, this period was not sufficient
on my part to verify the affidavits in Form 26
minutely with reference to the documents as I
was busy in election campaigning and due to
paucity of time, I could not get time to minutely
verify the same."
Mr. Kanungo, learned counsel argued that the
Respondent in his affidavit in Form 26 (Ext.43) has mentioned
that the candidate is responsible for supplying all information in
compliance of Hon'ble Supreme Court's Judgment in W.P.(C)
536/2011 and he has also stated that the contents of affidavit
are true and correct to the best of his knowledge and belief and
no part of it is false and nothing material has been concealed
therefrom. It is argued that a bare perusal of the affidavit in
Form 26 (Exts.43 to 46) filed along with the nomination papers
and in the newspapers (Exts. B, C, D vide Exts.B/1, C/1, D/1),
the Respondent has made false and misleading declaration about
the criminal cases pending against him and has suppressed to
give true and correct declaration in the affidavit in Form 26 for
which the nomination paper filed by the Respondent is to be
500
rejected and consequently his election from the Constituency is
to be declared as void and to be set aside.
Mr. Kanungo, learned counsel submitted though it
was argued on behalf of the Respondent that he had declared all
thirteen criminal cases pending against him and as the P.C. Act
is not applicable to him, he has not disclosed the same in the
affidavit filed in Form 26 (Ext.43), but the details of said criminal
cases like date of F.I.R., name of Police Station, name of the
Court, Sections involved in the F.I.R., brief description of the
offences and date of framing of charge in T.R. No.1/2009 were
all false and misleading declarations.
So far as the pleading is concerned, Mr. Kanungo,
learned counsel submitted that the Election Petitioner in para
7(C), 7(G), 7(H), 7(I) has pleaded that in the affidavit in Form
26 filed by the Respondent, he has made false and misleading
declaration. So also, the declarations made in Exts.B/1, C/1 and
D/1 are also false. Exts.B/1, C/1 and D/1 were exhibited to
mislead this Court that the Respondent had made true and
correct declaration in the newspaper pursuant to the directions
of the Constitution Bench of the Supreme Court and to prove the
averments made in para 7(C) r/w Ext.43 and declarations made
501
in Exts.B/1, C/1 and D/1 are false, the Election Petitioner
exhibited Exts.17 to 19, 21 to 25, 28, 29 and 49.
In the case of Dhartipakar Madan Lal Agarwal
-Vrs.- Rajiv Gandhi reported in 1987 (Supp) SCC 93, it is
held that Section 81 prescribes a period of 45 days from the date
of the election for presenting election petition calling in question,
the election of a returned candidate. After the expiry of that
period, no election petition is maintainable and the High Court or
this Court has no jurisdiction to extend the period of limitation.
An order of amendment permitting a new ground to be raised
beyond the time specified in Section 81 would amount to
contravention of those provisions and beyond the ambit of
section 81 of the Act. It necessarily follows that a new ground
cannot be raised or inserted in an election petition by way of
amendment after the expiry of the period of limitation. Similarly,
reliance is placed in the case of Hari Shanker Jain -Vrs.- Sonia
Gandhi reported in (2001) 8 Supreme Court Cases 233, the
Hon'ble Supreme Court held as follows:-
"23. 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
502
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 understand the case he will have to meet.
(See Samant N. Balkrishna v. George
Fernandez, Jitendra Bahadur Singh v. Krishna
Behari) 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
503
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."
Further, in case of Karam Kapahi and Others
-Vrs.- Lal Chand Public Charitable Trust and Others
reported in MANU/SC/0240/2010, the Hon'ble Supreme
Court interpreted Order 12 Rule 1 of C.P.C. and Order 12 Rule 6
of C.P.C. and held that if the provisions of Order 12 Rule 1 is
compared with Order 12 Rule 6 C.P.C., it becomes clear that the
provision of Order 12 Rule 6 is wider in as much as the provision
of Order 12 Rule 1 is limited to admission by 'pleading or
otherwise in writing' but in Order 12 Rule 6, the expression or
otherwise is much wider in view of the words used therein
namely, 'admission of fact either in pleading or otherwise,
whether orally or in writing' and the Hon'ble Supreme Court
further held as follows:-
"56. Order 12 Rule 6 of the Code has been very
lucidly discussed and succinctly interpreted in a
Division Bench judgment of Madhya Pradesh
High Court in the case of Shikharchand and
Ors. -Vrs.- Mst. Bari Bai and Ors. reported in
504
MANU/MP/0018/1974: AIR 1974 Madhya
Pradesh 75. Justice G.P. Singh (as His Lordship
then was) in a concurring judgment explained
the aforesaid rule, if we may say so, very
authoritatively at page 79 of the report. His
Lordship held:
"...I will only add a few words of my
own. Rule 6 of Order 12 of the Code of
Civil Procedure corresponds to Rule 5 of
Order 32 of the Supreme Court Rules
(English), now Rule 3 of Order 27, and
is almost identically worded (see Annual
Practice 1965 edition Part I. p. 569).
The Supreme Court Rule came up for
consideration in Ellis v. Allen (1914) Ch
904. In that case a suit was filed for
ejectment, mesne profits and damages
on the ground of breach of covenant
against sub-letting. Lessee's solicitors
wrote to the plaintiff's solicitors in which
fact of breach of covenant was admitted
and a case was sought to be made out
for relief against forfeiture. This letter
was used as an admission under Rule 5
and as there was no substance in the
plea of relief against forfeiture, the suit
was decreed for ejectment under that
rule. Sargant, J. rejected the argument
that the rule is confined to admissions
505
made in pleadings or under Rules 1 to 4
in the same order (same as ours) and
said: the rule applies wherever there is
a clear admission of facts in the face of
which it is impossible for the party
making it to succeed."
Rule 6 of Order 12, in my opinion, must bear the
same construction as was put upon the
corresponding English rule by Sargent, J. The
words "either on the pleadings or otherwise" in
Rule 6 enable us not only to see the admissions
made in pleadings or under Rules 1 to 4 of the
same order but also admissions made elsewhere
during the trial."
In Himani Alloys Ltd. -Vrs.- Tata Steel Ltd.
reported in (2011) 15 Supreme Court Cases 273, the
Hon'ble Supreme Court held as follows:-
"11. It is true that a judgment can be given on
an "admission" contained in the minutes of a
meeting. But the admission should be
categorical. It should be a conscious and
deliberate act of the party making it, showing an
intention to be bound by it. Order 12 Rule 6
being an enabling provision, it is neither
mandatory nor peremptory but discretionary.
The court, on examination of the facts and
circumstances, has to exercise its judicial
506
discretion, keeping in mind that a judgment on
admission is a judgment without trial which
permanently denies any remedy to the
Defendant, by way of an appeal on merits.
Therefore unless the admission is clear,
unambiguous and unconditional, the discretion
of the Court should not be exercised to deny the
valuable right of a Defendant to contest the
claim. In short the discretion should be used
only when there is a clear 'admission' which can
be acted upon."
According to Mr. Kanungo, the issue nos.17 and 21
are to be answered in favour of the Election Petitioner and
against the Respondent.
Mr. Bidyadhar Mishra, learned Senior Advocate, on
the other hand, argued that the allegations made by the Election
Petitioner in his election petition are completely based on
surmises, out and out false, fabricated, concocted. The
Respondent has disclosed all the necessary information in
respect of the criminal cases pending against him in his affidavit
filed in Form 26. There is no concealment of information or false
information provided by the Respondent in his affidavit rather he
had declared all particulars in respect of all the criminal cases
507
pending against him as required under law and prescribed under
the format of the Form 26 affidavit.
According to Mr. Mishra, all the nominated candidates
are required to furnish respective information about the criminal
cases pending against them, if any, under column (5) in their
respective affidavit in Form 26. Under column (5)(i), it is
required by the candidate to declare that there is no pending
criminal cases against him by mentioning tick mark against the
column. If the column (5)(i) is applicable to the candidate, he
has to write "NOT APPLICABLE" against the column (5)(ii) given
below. Under column (5)(ii), the candidate is required to declare
the criminal cases pending against him. In the instant case,
column (5)(i) is not applicable to the Respondent, hence he has
mentioned "Not Applicable" against the column (5)(i) and on the
other hand against column (5)(ii), he has put tick mark declaring
thereby that criminal cases are pending against him. Under the
column (5)(ii)(a), the candidate is required to declare "FIR No.
with name and address of Police Station concerned". Under the
column (5)(ii)(b), the candidate is required to declare "Case No.
with Name of the Court". Under the column (5)(ii)(c), the
candidate is required to furnish information about "Section(s) of
concerned Acts/Codes (give no. of the Section, e.g. Section......of
508
IPC, etc.)". Under the column (5)(ii)(d), the candidate is required
to furnish information about "Brief description of offence". Under
the column (5)(ii)(e), the candidate is required to furnish
information about "Whether charges have been framed (mention
YES or NO)." Under the column (5)(ii)(f), the candidate is
required to furnish information to the effect that "If answer
against (e) above is YES, then give the date on which charges
were framed". Under the column (5)(ii)(g), the candidate is
required to furnish information as to "Whether any Appeal/
Application for revision has been filed against the proceedings
(Mention YES or NO)." Mr. Mishra argued that the Election
Petitioner while making allegations under paragraph-7(C) of the
election petition has deliberately suppressed the above important
material facts which are laid down/prescribed under the column
(5)(ii) in its clauses (a) to (g) and as such those allegations do
not disclose complete cause of action.
According to Mr. Mishra, the allegations made under
paragraph-7(C) of the election petition, are bereft of material
facts, do not disclose complete cause of action, wholly
unnecessary, frivolous, scandalous, vexatious and tend to
prejudice, embarrass the fair trial of the case with ulterior
political motive which is otherwise an abuse of the process of the
509
Court. The submissions made by Mr. Mishra with respect to the
issues in question are as follows:-
(a) The Respondent has correctly mentioned
the F.I.R. No., date of F.I.R. and name of the
police station in column (5)(ii)(a) vide sl. no.(vi)
i.e. F.I.R. No. 136/2012 dated 24.09.2012 at
Balianta police station. There is no allegation
about the corresponding entries/information
furnished in respect of the said F.I.R. under
columns (5)(ii)(b) to (5)(ii)(g). The only
discrepancy as alleged is that mentioning of
Balianta police station, Cuttack whereas in the
district of Cuttack, there is no Balianta police
station. The said allegation is made without any
pleading to the effect that on account of such
typographical mistake as to why and how the
result of the election, in so far as it concerns the
returned candidate, has been materially
affected. Even if the district of the Balianta
police station has been wrongly mentioned to be
in Cuttack district in place of Khordha district,
the same is inconsequential, immaterial and a
mere typographical error and such mistake
cannot be a ground on the basis of which the
election is to be declared void and be set aside.
The electors of the Constituency in general are
well informed that the Balianta Police Station
comes under Khordha district and as such on
510
account of mentioning of the name of the district
as Cuttack in place of Khordha, does not create
any serious confusion or misinformation in the
mind of the electors;
(b) The Respondent has correctly disclosed
under column (5)(ii)(a) regarding pendency of
F.I.R. No. 34 dated 06.09.2007 in Vigilance
police station. There is no allegation with respect
to all other corresponding information furnished
under column nos.(5)(ii)(b) to (5)(ii)(g) against
the said F.I.R. number. The only allegation is
made pointing out the typographical error with
respect to place of the police station as Cuttack
instead of Bhubaneswar, without any pleading to
the effect that on account of such typographical
mistake as to why and how the result of the
election, in so far as it concerns the returned
candidate, has been materially affected. Such
typographical error as alleged is inconsequential
and immaterial and such error cannot be said to
be a ground on the basis of which the election is
to be declared void and be set aside.
(c) The allegation to the effect that the
Respondent has not disclosed T.R. No.41/2013
pending in the Court of Spl. Judge, Vigilance,
Bhubaneswar against him and others is entirely
false, concocted, unnecessary, frivolous and
scandalous inasmuch as the said allegation is
bereft of the material fact to the effect that the
511
Respondent has disclosed the said T.R.
No.41/2013 pending before the Court of Spl.
Judge, Vigilance under column no.(5)(ii)(b) in its
sl. no.(iii) along with all other corresponding
information in respect of the said pending case
which have been furnished correctly in column
nos. (5)(ii)(c) to (5)(ii)(g).
(d) The allegation made with respect to the
declaration made in column (5)(ii)(b) sl. no.(ix)
by the Respondent about G.R. Case
No.680/2012 pending in the Court of S.D.J.M.,
Bhubaneswar instead of Court of J.M.F.C.(O),
Bhubaneswar, is not worth acceptable as
because the source of information of such
allegation has not been disclosed by the Election
Petitioner. There is also no allegation made with
respect to the corresponding information
furnished against the said pending case under
column nos.(5)(ii)(a), (5)(ii)(c) to (5)(ii)(g).
(e) The allegation made to the effect that the
F.I.R. Nos. given in column (5)(ii)(a) and the
corresponding Case Nos. and the name of the
Court declared in column (5)(ii)(b) and sections
of the concerned Acts/Codes involved are false
and misleading declarations, is wholly bald,
baseless, unnecessary and frivolous, without
pleading of the material facts disclosing/
pointing out thereby any particular false and
misleading declarations in those two columns
512
and as such the same does not disclose any
cause of action.
(f) The Respondent in column (5)(ii)(c) against
the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos.(v), (vi) and
(xii) that section 341 of I.P.C. is involved in the
pending cases against him. Similarly, the
Respondent in column (5)(ii)(d) against the
heading "Brief description of offence" has
correctly disclosed that Section 341 of I.P.C.
relates to the offence of wrongful restraint. It is
worthwhile to mention here that in the election
petition, there is no other allegation(s) made
with respect to the information furnished by the
Respondent in columns (5)(ii)(a), (5)(ii)(b),
(5)(ii)(e), (5)(ii)(f) and (5)(ii)(g) regarding
charges/cases pending under section 341 of
I.P.C. It is not mandatorily required to furnish
number of charges/cases in columns (5)(ii)(c)
and (5)(ii)(d) of Form 26 affidavit.
(g) The Respondent in column (5)(ii)(c) against
the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos.(i), (ii), (iv),
(v), (vi) and (xii) that section 294 of I.P.C. is
involved in the pending cases against him.
Similarly, the Respondent in column (5)(ii)(d)
against the heading "Brief description of offence"
513
has correctly disclosed that Section 294 of I.P.C.
relates to the offence of obscene acts and songs.
In the election petition, there is no other
allegation(s) made with respect to the
information furnished by the Respondent in
columns (5)(ii)(a), (5)(ii)(b), (5)(ii)(e), (5)(ii)(f)
and (5)(ii)(g) regarding charges pending under
section 294 of IPC. It is not mandatorily required
to furnish number of charges/cases in columns
(5)(ii)(c) and (5)(ii)(d) of Form 26 affidavit.
(h) The Respondent in column (5)(ii)(c) against
the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos.(iii), (vii) to
(x) and (xiii) that section 420 of I.P.C. is
involved in the pending cases against him.
Similarly, the Respondent in column (5)(ii)(d)
against the heading "Brief description of offence"
has correctly disclosed that Section 420 of I.P.C.
relates to the offence of cheating and
dishonestly inducing delivery of property. In the
election petition, there is no other allegation(s)
made with respect to the information furnished
by the Respondent in columns (5)(ii)(a),
(5)(ii)(b), (5)(ii)(e), (5)(ii)(f) and (5)(ii)(g)
regarding charges pending under section 420 of
I.P.C. It is not mandatorily required to furnish
number of charges/cases in columns (5)(ii)(c)
and (5)(ii)(d) of Form 26 affidavit.
514
(i) The Respondent in column (5)(ii)(c) against
the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos.(iii), (vii) to
(x) and (xiii) that section 120B of I.P.C. is
involved in the pending cases against him.
Similarly, the Respondent in column (5)(ii)(d)
against the heading "Brief description of offence"
has correctly disclosed that Section 120B of
I.P.C. relates to the offence of criminal
conspiracy. In the election petition, there is no
other allegation(s) made with respect to the
information furnished by the Respondent in
columns (5)(ii)(a), (5)(ii)(b), (5)(ii)(e), (5)(ii)(f)
and (5)(ii)(g) regarding charges pending under
section 120B of I.P.C. It is not mandatorily
required to furnish number of charges/cases in
columns (5)(ii)(c) and (5)(ii)(d) of Form 26
affidavit.
(j) The Respondent in column (5)(ii)(c) against
the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos.(i), (iv) and
(v) that section 143 of I.P.C. is involved in the
pending cases against him. Similarly, the
Respondent in column (5)(ii)(d) against the
heading "Brief description of offence" has
correctly disclosed that Section 143 of I.P.C.
relates to the offence for punishment whoever is
515
a member of an unlawful assembly. The
pleading made by the Election Petitioner to the
effect that in column (5)(ii)(d), the Respondent
has declared two charges related to mischief by
injury to public road, bridge, river, channel (IPC
section 143), is completely false, evasive,
frivolous, vexatious and scandalous. In the
election petition, there is no other allegation(s)
made with respect to the information furnished
by the Respondent in columns (5)(ii)(a),
(5)(ii)(b), (5)(ii)(e), (5)(ii)(f) and (5)(ii)(g)
regarding charges pending under section 143 of
I.P.C. It is not mandatorily required to furnish
number of charges/cases in columns (5)(ii)(c)
and (5)(ii)(d) of Form 26 affidavit.
(k) The Respondent in column (5)(ii)(c) against
the heading "Sections of the concerned
Acts/Codes involved" has correctly furnished the
required information vide its sl. nos.(i), (ii), (xii)
that Sections 7/3 and 7/4 of P.D.P.P. Act are
involved in the pending cases against him.
Similarly, the Respondent in column (5)(ii)(d)
against the heading "Brief description of offence"
has correctly disclosed that Sections 7/3 and 7/4
of P.D.P.P. Act relate to the offence of mischief
by doing any act in respect of any public
property. It is worthwhile to mention here that
in the election petition, there is no other
allegation(s) made with respect to the
516
information furnished by the Respondent in
columns (5)(ii)(a), (5)(ii)(b), (5)(ii)(e), (5)(ii)(f)
and (5)(ii)(g) regarding charges pending under
Sections 7/3 and 7/4 of P.D.P.P. Act. It is not
mandatorily required to furnish number of
charges/cases in columns (5)(ii)(c) and
(5)(ii)(d) of Form 26 affidavit.
(l) The Respondent in column (5)(ii)(c) sl.
nos.(iii), (vii) to (x) and (xiii) has declared about
the cases pending against him under section
13(2) read with section 13(1)(d) of P.C. Act,
1988 but has not declared about the same in
column (5)(ii)(d) of the affidavit, is not worth
acceptable and not legally sustainable. The
offences under Section 13(2) read with Section
13(1)(d) of P.C. Act, 1988 relate to criminal
misconduct by a public servant and as such the
Respondent not being a public servant till
declared elected, was not required under law to
furnish the description of the offence which
relates to a public servant inasmuch as such
offences are not applicable to him.
Mr. Mishra, learned counsel for the Respondent
argued that on account of absence of above material facts in
pleadings of the election petition, the same does not disclose
complete cause of action as law is well settled that the election
petitioner is to be restricted and cannot be permitted to adduce
517
any evidence beyond his pleadings. Mr. Mishra drew the
attention of this Court to the following questions put by the Court
to the Election Petitioner and the answers given:-
To Court
"For the second time, I contested election of
M.L.A. against the Respondent Md. Moquim.
Though I had knowledge that some criminal
cases have been instituted against the
Respondent Md. Moquim prior to the election in
the year 2019, but I had no knowledge about
the details of those cases including the offences
involved and the Courts where those cases were
pending. In order to verify whether Respondent
Md. Moquim has reflected correctly about the
pendency of the cases against him in the
affidavit, I applied for the certified copy of the
F.I.Rs., charge sheet and order-sheets and then
I came to know about the correct state of
affairs. From the date of application of certified
copy and grant of certified copy, it reveals that I
got those documents after filing of the election
petition.
Q. If you have got the certified copies of the
F.I.R., charge sheet and order-sheet after filing
of the election petition, how you mentioned in
the election petition that the Respondent Md.
518
Moquim has not correctly reflected about the
case details in the affidavit in Form 26?
Ans. After verifying from different agencies and
making research, prior to obtaining the certified
copies I came to know that the Respondent Md.
Moquim has given wrong statements in the
affidavit in Form 26."
Mr. Mishra drew the attention of this Court to the
following answer given by the Election Petitioner in the cross-
examination:-
"It is a fact that at the time of filing of the
election petition, Exts.17, 19, 20, 22, 23, 24,
25, 26, 27, 28, 29 and 30 were not available
with me, which I received in between August
2022 to November 2022."
According to Mr. Mishra, learned counsel for the
Respondent, since the documents were not available with the
Election Petitioner with respect to pendency of criminal cases
against the Respondent at the time of filing of election petition,
vague and incorrect averments have been taken and without
necessary pleading, the Election Petitioner has tried to make out
something new at a later stage to cause surprise to the
Respondent and thereby the Respondent has been seriously
prejudiced. The Respondent has given declaration with respect to
519
all thirteen criminal cases pending against him in his affidavit in
Form 26 and as such the Election Petitioner has signally failed to
prove his allegations made under Paragraph-7(C) of the election
petition. The Election Petitioner has also not pleaded about the
criminal cases where charge has been framed or cognizance has
been framed by the concerned Courts.
I am of the view that even though Exts.17, 19, 20,
22, 23, 24, 25, 26, 27, 28, 29 and 30 were not available with the
Election Petitioner at the time of filing of the election petition,
since according to him, after verifying from different agencies
and making research, he came to know that the Respondent had
given wrong statements in the affidavit in Form 26 and
accordingly, he had informed to his counsel at the time of
preparation of election petition as well as evidence affidavit,
there is nothing wrong in it. Moreover, at the stage of trial, since
all the material documents were brought on record and duly
proved, this Court has to verify whether the pleadings made in
the election petition and evidence on affidavit filed by the
Election Petitioner are factually correct or not or there is ring of
truth in the written statement and evidence adduced by the
Respondent in this respect. It would be beneficial to refer to the
following observations made by the Hon'ble Supreme Court in
520
the case of Ajay Maken -Vrs.- Adesh Kumar Gupta reported
in (2013) 3 Supreme Court Cases 489:
"41. The purpose of the stipulation under
Section 81(3) is to put the returned candidate
on notice of the various allegations made against
him in order to enable him to defend himself
effectively in the election petition--a stipulation
flowing from the requirement of one of the basic
postulates of the principles of natural justice.
Once the content of the annexure, the whole of
which pertains to the commission of the corrupt
practice alleged in the election petition, is
described in the body of the election petition
with sufficient clarity, the returned candidate
cannot complain that he was denied a
reasonable opportunity of defending himself or
that he was taken by surprise at the trial.
Therefore, non-supply of the annexure in such
cases was held to be immaterial and the copy of
the election petition supplied to the returned
candidate sans the annexure would still be a
true copy within the meaning of the expression
under Section 81(3)."
(Emphasis supplied)
Therefore, the submission on behalf of the
Respondent that the election petition must be dismissed since
the Election Petitioner obtained certain exhibited documents
521
subsequent to the filing of the election petition, is not worthy of
acceptance. The requirement under section 81(1) read with
section 83(1)(a) is that the Election Petitioner is to file the
election petition, providing a concise statement of all the
material facts in his election petition, within forty-five days of
declaration of the result of the election. The terms 'concise
statement' and 'material facts' ought to be emphasized here. The
meaning of 'material fact' is no more ambiguous, as has been
discussed in the preceding issues. Material facts essentially
connote those facts which form the basis of an election petition.
Thus, an Election Petitioner is required to provide the essential
facts in a 'concised manner' in his election petition. If the petition
sets forth the allegations against the returned candidate in clear
terms then the requirement under the above provision stands
fortified and merely because the Election Petitioner did not
possess certain documents which were exhibited and relied later
on, cannot be a ground to reject his petition in limine.
Mr. Mishra drew the attention of this Court to the
following question put by the Court to the Election Petitioner and
the answer given:-
TO COURT
Q. You have mentioned in para 7(H) of the
Election Petition that the Respondent has not
522
fully disclosed about the criminal cases pending
against him. Please verify the election petition
and the evidence affidavit filed by you and say
which are those cases according to you, the
Respondent has not disclosed in his affidavit in
Form 26?
Ans. The answer to this question lies in
paragraph 7(C) of my election petition.
Mr. Mishra drew the attention of this Court to the
evidence of P.W.3, the Returning Officer which is as follows:-
"On 02.04.2019, I issued Ext.A to the
Respondent instructing him to publish a
declaration of the criminal cases pending against
him for wide publicity in newspapers with wide
circulation in the constituency area as well as on
TV channels, at least on three different
occasions each during the dates from the day
following the last date for withdrawal of
candidature and up to two days before the date
of poll."
To Court
Q. Whether after publishing the details of the
criminal cases in the newspapers with wide
circulation in the constituency area, the
Respondent submitted the proof of the same
before you?
523
Ans. It is not required to be submitted before
me as Returning Officer, but it is to be submitted
before the District Election Officer along with his
account of election expenses.
Q. Whether after telecasting on TV channels
regarding criminal cases, the Respondent
submitted the proof of the same before you?
Ans. It is not required to be submitted before
me as Returning Officer. I cannot say whether
there is any provision to submit proof of the
same before the District Election Officer.
"As per the instruction given to the Respondent
vide Ext.A, he published the details of the
criminal cases pending against him in Format C-
1 in the newspapers which have already been
marked as Ext.B/1, Ext.C/1 and Ext.D/1. On
verification of Ext.B/1, Ext.C/1 and Ext.D/1, I
find that the Respondent has published the same
within time as stipulated under Ext.A. When the
Respondent submitted his revised affidavits
dated 03.04.2019 on 04.04.2019 vide Ext.43,
Ext.44, Ext.45 and Ext.46, he mentioned
pendency of as many as 13 criminal cases
against him under item no.5(ii) in pages 3 to 8
of Ext.43, Ext.44, Ext.45 and Ext.46. After
verifying the details of criminal cases mentioned
in pages 3 to 8 of Ext.43, Ext.44, Ext.45 and
Ext.46 with that of Ext.B/1, Ext.C/1 and Ext.D/1,
524
I find that the Respondent has correctly
published the details of pendency of all 13
criminal cases pending against him in the news
papers. I got no proof of telecasting on TV
channels of the details of criminal cases pending
against the Respondent on three occasions as
was directed in Ext.A, but nobody including the
Election Petitioner or anybody on his behalf
complained before me regarding non-telecasting
details of the criminal cases of the Respondent
violating my instruction in Ext.A."
Mr. Mishra, learned counsel argued that plain reading
and close scrutiny of the evidence on record would lead to
irresistible conclusion that the Respondent had disclosed
correctly all the thirteen criminal cases pending against him in
his affidavit in Form 26. The Election Petitioner (P.W.1) has also
stated that he did not know as to whether any other criminal
case(s) other than the disclosed thirteen criminal cases to be
pending against the Respondent.
Mr. Mishra drew the attention of this Court to the
evidence of P.W.3, the Returning Officer which is as follows:-
"Before the commencement of scrutiny of
nominations i.e. on 05.04.2019 at 11.00 a.m.,
the nomination papers in Form 2B i.e. Ext.39,
Ext.40, Ext.41 and Ext.42 and the affidavits in
525
Form 26 dated 03.04.2019 i.e. Ext.43, Ext.44,
Ext.45 and Ext.46 filed by the Respondent were
very much available on my office notice board,
with the media persons, in the office of the
District Election Officer, Cuttack and in the
official website of the Election Commission of
India for view by the general public. In spite of
availability of the nomination papers and
affidavits of the Respondent to the general
public in the aforesaid manner as stated by me
in the previous sub-paragraph, nobody including
the Election Petitioner or his agents or any of his
supporters raised any objection before me to the
nomination papers and affidavits filed by the
Respondent before or during scrutiny of
nominations."
According to Mr. Mishra, on applications filed on
behalf of the Election Petitioner to direct concerned Courts to
grant certified copies of FIRs, charge sheets and day to day
order sheets of all the pending criminal cases against the
Respondent, this Court passed orders directing the concerned
Courts to grant such copies to the Election Petitioner.
Accordingly, the Election Petitioner collected certified copies of
the documents and filed the same before this Court and marked
those documents as exhibits on his behalf. In course of the trial,
it became known to the Election Petitioner that some clerical/
526
typographical errors/omissions existed in the affidavit in Form 26
filed by the Respondent with respect to criminal cases pending
against him. He argued that there was no corresponding
pleading with respect to those clerical/typographical errors/
omissions in the election petition. The Election Petitioner did not
apply for necessary amendment of the election petition under
section 86(5) read with section 87 of the R.P. Act to include and
bring home the above clerical/typographical errors/omissions in
the affidavit in Form 26 filed by the Respondent with respect to
criminal cases pending against him. The election petition falls
short of appropriate pleadings and liable to be dismissed for not
disclosing complete cause of action.
Reliance is placed in the case of Yendapalli
Srinivasulu Reddy -Vrs.- Vemireddy Pattabhirami Reddy &
Others reported in 2022 SCC OnLine 1467, wherein the
Hon'ble Supreme Court held as follows:-
"3. By way of this appeal, the appellant-
returned candidate, whose election has been
called into question by the respondent No.1 by
way of Election Petition No.1 of 2017 before the
High Court of Andhra Pradesh, seeks to question
the order dated 06.12.2019 whereby, an
527
application for amendment of the petition has
been granted.
4. Shorn of unnecessary details, the relevant
aspects to be noticed for the purpose of this
appeal are that in the election petition filed by
the respondent No.1 herein, essentially two
broad grounds have been urged. One being of
improper acceptance of the nomination of the
returned candidate, i.e., the appellant herein,
and the second being of improper receipt of
invalid votes and improper rejection of valid
votes.
5. The second ground as referred hereinabove
is not of relevance for the purpose of the present
appeal. The relevant part of the matter herein is
that in the petition as filed, the appellant has,
inter alia, prayed for the following relief:
"B. Declare the acceptance of the
nomination paper filed by the 1st
Respondent/the Returned candidate with
substantial defects in the affidavit as
illegal, improper and consequently set
aside/reject the same."
6. In relation to the aforementioned relief, the
election petitioner (respondent No.1) has stated
that the nomination paper of the appellant ought
to have been rejected for being not accompanied
528
by a proper affidavit, particularly when the
verification part was not carrying the signature
of the appellant. The other submissions are that
the affidavit was drawn up on certain stamp
papers but, one of them was not purchased in
the name of the appellant and was purchased by
some other person and then, the name of the
appellant was inserted by erasing the name of
the original purchaser. It had also been
submitted that there had been certain blank
spaces for which, the affidavit was rendered
nugatory and these being the defects of
substantial nature, the nomination was required
to be rejected.
7. It would be apposite to notice that the
result of the election in question was declared on
21.03.2017 and the election petition under
consideration was filed on 27.04.2017. Leaving
aside other proceedings, the relevant aspect for
the present appeal is that on 27.03.2018, the
election petitioner (respondent No.1) moved an
application, being Interlocutory Application No.2
of 2018, seeking permission to amend the
election petition, so as to incorporate the
averments in the following terms:
"8a. It is submitted that as per section
33(A)(i) of the Representation of the
People Act, 1951, a candidate shall furnish
the information as to whether he is
529
accused of any offence punishable with
imprisonment for two years or more in a
pending case in which charge has been
framed by the court of competent
Jurisdiction. It is further submitted that
the returned candidate/1st respondent
herein filed a false in Form 26 by not
disclosing the criminal case pending
against him in which he is accused of an
offence punishable with imprisonment for
two years or more and a charge has
already been framed by the court of
competent Jurisdiction as on the date filing
his nomination. I respectfully submit that
the petitioner has deliberately filed as a
false affidavit in Form 26 by not disclosing
the criminal case pending against him as
the FIR in the said criminal case was filed
on 3.10.2011 and the same has been
registered as Crime No.188/2011 on the
file of the Gudur Rural Police Station,
Nellore District. The petitioner has been
arrayed as A3. The Court has taken
cognizance of the same as C.C.
No.370/2012 and the charges were also
framed as on the day of filing nomination.
Later the returned candidate/1st
respondent herein has been convicted for
the offences under Section 143, 147, 148,
447, 290 and 332 r/w. 149 IPC and the
530
details of the sentence and fine imposed
on the returned candidate/the 1st
respondent herein on 12.01.2018 by the
Hon'ble Additional Judicial Magistrate of
First Class, Gudur, Nellore District are as
follows:
Sl.No. Provision of Law Sentence Fine (Rs)
1 Sec.143 IPC 6 months 1000/-
2 Sec.147 IPC One year 1000/-
3 Sec.148 IPC Two years 1000/-
4 Sec.447 IPC 3 months 500/-
5 Sec.332 IPC Two years 1000/-
6 Sec.290 IPC ---- 200/-
The returned candidate/1st respondent
herein did not disclose the criminal case
pending against him in the election
affidavit filed in Form 26 and the non-
disclosure of such an important fact has
rendered the affidavit defective and invalid
in law as per the law laid down by the
Hon'ble Apex Court in the case of Kisan
Shankar Kathore v. Arun Dattatray Sawant
and others reported in (2014) 14 SCC 162.
8b. It is submitted that as per the Section
33 of the Representation of the People Act,
1951, a nomination paper complete in the
531
prescribed Form, signed by a candidate
and by an elector of the constituency as
proposer should be delivered to the
returning officer within the prescribed
period. A candidate has to file an affidavit
along with his nomination paper as
prescribed in Form 26. The petitioner has
deliberately filed a false affidavit in Form-
26 by not disclosing the criminal case
pending against him as the FIR in the said
criminal case was filed on 3.10.2011 and
the same has been registered as Crime
No.188/2011 on the file of the Gudur Rural
Police Station, Nellore District. The
petitioner has been arrayed as A3. The
Court has taken cognizance of the same as
C.C. No.370/2012 and the charges were
also framed as on the day of filing
nomination. As per Section 33(A) of The
Representation of the People Act, 1951 it
was incumbent upon every candidate, who
is contesting election, to give information
about his assets, criminal antecedents and
other affairs, which requirement is not only
essential part of fair and free elections,
inasmuch as, every voter has a right to
know about these details of the
candidates, such a requirement is also
covered by freedom of speech granted
under Article 19(1)(a) of the Constitution
532
of India. The right to get information in
democracy is recognized all throughout
and it is a natural right flowing from the
concept of democracy. Under our
Constitution Article 19(1)(a) provides for
freedom of speech and expression. Voter's
speech or expression in case of election
would include casting of votes, that is to
say, voter speaks out or expresses by
casting vote. For this purpose, information
about the candidate to be selected is a
must. Voter's right to know antecedents
including criminal past of his candidate
contesting election for MP or MLA is much
more fundamental and basic for survival of
democracy. Voter may think over before
making his choice of electing law breakers
as law-makers.
8c. It is submitted that the solemnity of
the affidavit has been ridiculed by
suppressing the material information
resulting in disinformation and
misinformation to the voters. The sanctity
of true disclosure to be made by the
candidate has failed to comply with said
obligation in its letter and spirit. The result
of the election in so far as it concerned the
returned candidate/1st respondent herein
has therefore been materially affected by
533
improper acceptance of his information
and the election result of the returned
candidate therefore is required to be
declared void under U/s. 100(1)(d)(i) of
the Representation of the People Act,
1951.
8d. It is further submitted that the
respondents herein who is the returned
candidate has failed and neglected to
disclose the information of pending
criminal case against him in which the
charges have already been framed in the
affidavit in Form 26. The non-disclosure is
a material lapse on the part of the
returned candidate/1st respondent herein.
The non-disclosure to the voters is fatal
and amount to suppression of vital and
material information rendering the affidavit
defective and the election of the returned
candidate/1st respondent herein is liable to
be set aside."
8. The aforesaid application seeking leave to
amend was contested by the present appellant,
essentially with the submissions that after expiry
of the period of limitation for filing of election
petition, it was not permissible for the election
petitioner (respondent No.1) to amend the
petition so as to include any other and new
ground of challenge to the election. It was also
534
submitted that the alleged non-disclosure of
offence of the petty nature was neither
intentional nor wanton and any such omission
was not of any material bearing on the matter.
xxx xxx xxx
18. Applying the principles aforesaid to the facts
of the present case with reference to the
pleadings already taken in this matter, we are
unable to find any fault in the approach of the
High Court in allowing the amendment as prayed
for. This is for the simple reason that the
election petitioner (respondent No.1) had never
taken "corrupt practice" as a ground to challenge
the election of the appellant. The grounds, as
noticed above, have precisely been of improper
acceptance of the nomination form of the
returned candidate and improper acceptance of
invalid votes as also improper rejection of valid
votes. That being the position, the pleadings
sought to be taken by way of amendment so as
to indicate that the nomination form was not to
be accepted for yet another reason, that is, for
non-compliance of the statutory requirements,
cannot be said to be of introduction of any new
cause of action or new ground of challenge. It
cannot be said that the ground as sought to be
pleaded does not have any foundation
whatsoever in the petition as filed; or that
pleading of such particulars would change the
535
character of the election petition. That being the
position, we are at one with the High Court that
the amendment as prayed for was required to be
allowed.
19. For what we have discussed as above, this
appeal fails and is, therefore, dismissed."
According to Mr. Mishra, learned counsel for the
Respondent, whatever discrepancies/ clerical/ typographical/
errors/ omissions have been brought in course of the cross-
examination of the Respondent (R.W.1), being beyond the
pleadings in the election petition, the same are to be ignored.
Reliance is placed in the cases of Gajanan Krishnaji Bapat and
another -Vrs.- Dattaji Raghobaji Meghe and others
reported in (1995) 5 Supreme Court Cases 347, Ananga
Uday Singh Deo -Vrs.- Ranga Nath Mishra and Others
reported in (2002) 1 Supreme Court Cases 499, Hari
Shanker Jain -Vrs.- Sonia Gandhi reported in (2001) 8
Supreme Court Cases 233, Kalyan Singh Chouhan -Vrs.-
C.P. Joshi reported in (2011) 11 Supreme Court Cases 786
and Arikala Narasa Reddy -Vrs.- Venkata Ram Reddy
Reddygari and another reported in (2014) 5 Supreme
Court Cases 312.
536
In the case of Gajanan Krishnaji Bapat (supra),
the Hon'ble Supreme Court held as follows:-
"85. Before parting with the judgment we would,
however, like to express our disapproval of the
manner in which amendments of the election
petition were allowed on occasions more than
once and how evidence was allowed to be
brought on the record against the pleadings and
settled legal principles.
86. Section 86(5) of the Act deals with the
amendment of an election petition. It lays down
that the High Court may upon such terms as to
costs or otherwise, as it deems fit, allow
amendment in respect of particulars but there is
a complete prohibition against any amendment
being allowed which may have the effect of
introducing either material facts not already
pleaded or of introducing particulars of a corrupt
practice not previously alleged in the petition.
The first part of Section 86(5) of the Act,
therefore, is an enabling provision while the
second part creates a positive bar. Of course,
the power of amendment given in the Code of
Civil Procedure can be invoked by the High Court
because Section 86 of the Act itself makes the
procedure applicable, as nearly as may be, to
the trial of election petition, but it must not be
ignored that some of the Rules framed under the
537
Act itself override certain provisions of the Civil
Procedure Code and thus, the general power of
amendment drawn from the Code of Civil
Procedure must be construed in the light of the
provisions of the election law and applied with
such restraints as are inherent in an election
petition. It appears to us that the High Court did
not properly consider the provisions of the
election law while repeatedly allowing
amendments of the election petition in the
present case. The High Court allowed an
application Ex.27 filed by the election petitioner
for permission to amend the petition on 28-11-
1991. Yet another application for amendment of
the election petition, Ex.44 was again allowed by
the High Court on 18-12-1991. The petitioner
filed still another application, Ex.47-A, to again
amend the election petition and the High Court
allowed the same on 18-1-1992. Even after the
pleadings were completed and the issues framed
on 21-1-1992 and a part of evidence had been
led by the parties, the High Court allowed one
more application filed by the election petitioner
1, Ex.701, and permitted an amendment of the
election petition, apparently to bring the
evidence in conformity with the pleadings. In the
first place, the High Court ought not to have
allowed evidence to be led by the election
petitioners which was beyond the pleadings of
the parties for no amount of evidence can cure a
538
defect in the pleadings but it was all the more
improper for the trial court to have allowed the
pleadings to be amended so as to be brought in
conformity with the evidence already led in the
case. To say the least, it was not a desirable or a
proper course to be adopted in an election
petition where, as pointed out by this Court in
Jagan Nath v. Jaswant Singh, the statutory
requirements of the law of election must be
strictly observed. Of course, since evidence was
allowed to be led, though beyond the pleadings
without any objections from the opposite side,
the court could have evaluated and analysed the
same to determine the worth of that evidence,
which in the facts and circumstances of the case
came under a cloud but to allow the amendment
of the pleadings with a view to confer a "legal
status" on the evidence already led was to say
the least improper. The reasons given by the
learned trial Judge to allow the election petition
to be amended repeatedly ignores the sanctity
which is attached to the pleadings and the
affidavit filed in support of an election petition,
which under law is required to be filed within a
prescribed time and those reasons do not
impress us. We need say no more on this aspect
of the case."
539
In the case of Ananga Uday Singh Deo (supra), a
three Judge Bench of the Hon'ble Supreme Court held as
follows:-
"39. As already noticed, there was no pleading
at all, except some vague assertion in the
grounds, with regard to the allegation of corrupt
practice relating to alleged bribery indulged by
Respondent 1. No issue had been framed, as
rightly none could be framed in that respect on
the basis of vague and incomplete pleadings.
The learned Designated Judge, however,
permitted evidence to be led during the trial by
the appellant, relating to the allegations of
bribery. No such evidence could have been
permitted to be led. The learned Designated
Judge appears to have ignored salutary
principles that evidence can only be permitted to
be led on a plea properly raised and issue
framed. A Designated Judge trying an election
petition must be careful to see that irrelevant,
impermissible and inadmissible evidence is not
allowed to be brought on the record. Let alone
allowing evidence to be led, for which there were
no pleadings, even Respondent 1 was subjected
to unnecessary cross-examination on the
allegations of bribery, which of course he stoutly
denied. The evidence led in the case was
inadmissible and should have been excluded and
540
not allowed to form a part of the record. The
Designated Judge trying the election petition
appears to have lost control over the
proceedings and conducted the trial of the
election petition in a manner not acceptable in
law. Insofar as the allegations relating to the
charge of horse-trading and bribery are
concerned, we must in fairness to Mr P.N. Lekhi,
learned Senior Counsel appearing for the
appellant, record that he did not pursue this
charge before us any further."
In the case of Hari Shanker Jain (supra), a three
Judge Bench of the Hon'ble Supreme Court held as follows:-
"Question 4
22. We now proceed to examine whether the
pleadings of any of the two election petitioners
disclose any cause of action and raise a triable
issue which should have been put to trial.
23. 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
541
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 understand the case he will have to meet.
(See Samant N. Balkrishna v. George
Fernandez, Jitendra Bahadur Singh v. Krishna
Behari) 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
542
the time-limit prescribed for filing the election
petition.
24. 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 a 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.
25. There are two features common to both the
election petitions. Firstly, both the petitions are
verified as "true to personal knowledge" of the
two petitioners respectively which is apparently
incorrect as the very tenor of pleadings discloses
that any of the petitioners could not have had
personal knowledge of various facts relating to
the respondent personally and during the course
of hearing we had put this across to the two
petitioners and they responded by submitting
only this much that the verification if incorrect
was capable of being cured. The second common
feature in the two petitions is that there are bald
assertions made about the Italian law without
stating what is the source of such law as has
been pleaded by the election petitioners or what
543
is the basis for raising such pleadings. These
averments also have been verified as "true to
my knowledge" by each of the election
petitioners, a position wholly unacceptable."
In the case of Kalyan Singh Chouhan (supra), the
Hon'ble Supreme Court held as follows:-
"18. In Gajanan Krishnaji Bapat v. Dattaji
Raghobaji Meghe this Court held that the court
cannot consider any fact which is beyond the
pleadings of the parties. The parties have to
take proper pleadings and establish by adducing
evidence that by a particular irregularity/
illegality the result of the election has been
materially affected.
19. Pleadings and particulars are required to
enable the court to decide the rights of the
parties in the trial. Thus, the pleadings are more
to help the court in narrowing the controversy
involved and to inform the parties concerned to
the question in issue, so that the parties may
adduce appropriate evidence on the said issue.
It is settled legal proposition that "as a rule relief
not founded on the pleadings should not be
granted". Therefore, a decision of a case cannot
be based on grounds outside the pleadings of
the parties. The pleadings and issues are to
ascertain the real dispute between the parties to
544
narrow the area of conflict and to see just where
the two sides differ. (Vide Sri Mahant Govind
Rao v. Sita Ram Kesho, Trojan & Co. v. Nagappa
Chettiar, Raruha Singh v. Achal Singh, Om
Prakash Gupta v. Ranbir B. Goyal, Ishwar Dutt
v. Collector (L.A.) and State of Maharashtra v.
Hindustan Construction Co. Ltd.)
20. This Court in Ram Sarup Gupta v. Bishun
Narain Inter College held as under: (SCC pp.
562-63, para 6)
"6....It is well settled that in the absence
of pleading, evidence, if any, produced
by the parties cannot be considered. It
is also equally settled that no party
should be permitted to travel beyond its
pleading and that all necessary and
material facts should be pleaded by the
party in support of the case set up by it.
The object and purpose of pleading is to
enable the adversary party to know the
case it has to meet. ... In such a case it
is the duty of the court to ascertain the
substance of the pleadings to determine
the question."
21. This Court in Bachhaj Nahar v. Nilima
Mandal held as under: (SCC pp. 496 & 500,
paras 12-13 & 23)
545
"12. The object and purpose of
pleadings and issues is to ensure that
the litigants come to trial with all issues
clearly defined and to prevent cases
being expanded or grounds being shifted
during trial. Its object is also to ensure
that each side is fully alive to the
questions that are likely to be raised or
considered so that they may have an
opportunity of placing the relevant
evidence appropriate to the issues
before the court for its consideration....
13. The object of issues is to identify
from the pleadings the questions or
points required to be decided by the
courts so as to enable parties to let in
evidence thereon. When the facts
necessary to make out a particular
claim, or to seek a particular relief, are
not found in the plaint, the court cannot
focus the attention of the parties, or its
own attention on that claim or relief, by
framing an appropriate issue....Thus it is
said that no amount of evidence, on a
plea that is not put forward in the
pleadings, can be looked into to grant
any relief.
xxx xxx xxx
546
23. The jurisdiction to grant relief in a
civil suit necessarily depends on the
pleadings, prayer, court fee paid,
evidence let in, etc."
22. In J.K. Iron & Steel Co. Ltd. v. Mazdoor
Union, this Court observed: (AIR p. 235, para
24)
"24. ... It is not open to the tribunals to
fly off at a tangent and, disregarding the
pleadings, to reach any conclusions that
they think are just and proper."
23. Order 14 Rule 1 CPC reads:
"1. Framing of issues.--(1) Issues arise
when a material proposition of fact or
law is affirmed by the one party and
denied by the other."
24. Therefore, it is neither desirable nor required
for the court to frame an issue not arising on the
pleadings. The court should not decide a suit on
a matter/point on which no issue has been
framed. (Vide Bommadevara Venkata Narasimha
Naidu v. Bommadevara Bhashyakarlu Naidu,
Sita Ram v. Radha Bai, Gappulal v. Thakurji
Shriji Shriji Dwarakadheeshji and Biswanath
Agarwalla v. Sabitri Bera)
547
25. The object of framing issues is to
ascertain/shorten the area of dispute and
pinpoint the points required to be determined by
the court. The issues are framed so that no
party at the trial is taken by surprise. It is the
issues fixed and not the pleadings that guide the
parties in the matter of adducing evidence. (Vide
Sayad Muhammad v. Fatteh Muhammad)
26. In Kashi Nath v. Jaganath this Court held
that where the evidence is not in line with the
pleadings and is at variance with it, the said
evidence cannot be looked into or relied upon.
While deciding the said case, this Court placed a
very heavy reliance on the judgment of the Privy
Council in Siddik Mohd. Shah v. Saran.
27. There may be an exceptional case wherein
the parties proceed to trial fully knowing the
rival case and lead all the evidence not only in
support of their contentions but in refutation
thereof by the other side. In such an
eventuality, absence of an issue would not be
fatal and it would not be permissible for a party
to submit that there has been a mistrial and the
proceedings stood vitiated. (Vide Nagubai
Ammal v. B. Shama Rao, Nedunuri
Kameswaramma v. Sampati Subba Rao, Kunju
Kesavan v. M.M. Philip, Kali Prasad Agarwalla v.
Bharat Coking Coal Ltd., Sayeda Akhtar v. Abdul
548
Ahad and Bhuwan Singh v. Oriental Insurance
Co. Ltd.)
28. Therefore, in view of the above, it is evident
that the party to the election petition must plead
the material fact and substantiate its averment
by adducing sufficient evidence. The court
cannot travel beyond the pleadings and the
issue cannot be framed unless there are
pleadings to raise the controversy on a particular
fact or law. It is, therefore, not permissible for
the court to allow the party to lead evidence
which is not in the line of the pleadings. Even if
the evidence is led that is just to be ignored as
the same cannot be taken into consideration."
In the case of Arikala Narasa Reddy (supra), a
three Judge Bench of the Hon'ble Supreme Court held as
follows:-
"26. The instant case requires to be considered
in light of the above settled legal propositions.
In the instant case, as explained hereinabove,
there were 706 total votes, out of which 701
votes were polled. At the time of initial counting
on 2-4-2009, both the candidates got equal
votes as 336 and 29 votes were found invalid.
On the request of the appellant, the Returning
Officer permitted re-counting of the votes and
the appellant got 336 votes while Respondent 1
549
got 335 votes and 30 votes were found to be
invalid. In the election petition, the only grounds
had been that 3 votes i.e. Exts. X-1 to X-3
polled in favour of Respondent 1 which had
wrongly been rejected and one vote Ext. Y-13
which had been counted in favour of the
appellant ought to have been declared invalid.
27. In view of the pleadings in the election
petition, the case should have been restricted
only to these four votes and even if the
recrimination petition is taken into account,
there could have been no occasion for the High
Court to direct re-counting of all the votes and in
case certain discrepancies were found out in re-
counting of votes by the Registrar of the High
Court as per the direction of the High Court, it
was not permissible for the High Court to take
into consideration all such discrepancies and
decide the election petition or recrimination
petition on the basis thereof. The course
adopted by the High Court is impermissible and
cannot be taken note of being in contravention
of the statutory requirements. Therefore, the
case has to be restricted only to the four votes
in the election petition and the allegations made
in the recrimination petition ignoring altogether
what had been found out in the re-counting of
votes as under no circumstance the re-counting
of votes at that stage was permissible."
550
Mr. Mishra, learned counsel for the Respondent
argued that section 33A(1) of the R.P. Act, 1951 was brought to
the statute book by way of amendment on 24.08.2002. The
Hon'ble Supreme Court even prior to coming into force of section
33A of the R.P. Act, 1951 in its decision in Association for
Democratic Reforms (supra) delivered on 02.05.2002, held as
follows:-
"22. For health of democracy and fair election,
whether the disclosure of assets by a candidate,
his/her qualification and particulars regarding
involvement in criminal cases are necessary for
informing voters, may be illiterate, so that they
can decide intelligently, whom to vote? In our
opinion, the decision of even illiterate voter, if
properly educated and informed about the
contesting candidate, would be based on his own
relevant criteria of selecting a candidate. In
democracy, periodical elections are conducted
for having efficient governance for the country
and for the benefit of citizens -- voters. In a
democratic form of government, voters are of
utmost importance. They have right to elect or
re-elect on the basis of the antecedents and past
performance of the candidate. He has choice of
deciding whether holding of educational
qualification or holding of property is relevant for
electing or re-electing a person to be his
551
representative. Voter has to decide whether he
should cast vote in favour of a candidate who is
involved in criminal case. For maintaining purity
of elections and healthy of democracy, voters
are required to be educated and well informed
about the contesting candidates. Such
information would include assets held by the
candidate, his qualification including educational
qualification and antecedents of his life including
whether he was involved in a criminal case and
if the case is decided--its result, if pending--
whether charge is framed or cognizance is taken
by the Court? There is no necessity of
suppressing the relevant facts from the voters.
xxx xxx xxx
48. The Election Commission is directed to call
for information on affidavit by issuing necessary
order in exercise of its power under Article 324
of the Constitution of India from each candidate
seeking election to Parliament or a State
Legislature as a necessary part of his nomination
paper, furnishing therein, information on the
following aspects in relation to his/her
candidature:-
(1) Whether the candidate is
convicted/acquitted/discharged of any
criminal offence in the past, if any,
552
whether he is punished with
imprisonment or fine?
(2) Prior to six months of filing of
nomination, whether the candidate is
accused in any pending case, of any
offence punishable with imprisonment for
two years or more, and in which charge is
framed or cognizance is taken by the
Court of law. If so, the details thereof."
Section 33A of the R.P. Act, 1951 came into force on
24.08.2002. But, the said section was only confined to 'charge
framed' and does not include 'cognizance taken'. In a subsequent
decision in People's Union for Civil Liberties (supra), the
Hon'ble Supreme Court held as follows:-
"114. I shall now discuss the specifics of the
problem. With a view to promote the right to
information, this Court gave certain directives to
the Election Commission which, as I have
already clarified, were ad hoc in nature. The
Election Commission was directed to call for
details from the contesting candidates broadly
on three points, namely, (i) criminal record, (ii)
assets and liabilities, and (iii) educational
qualification. The Third Amendment to the RP
Act which was preceded by an ordinance
provided for disclosure of information. How far
553
the Third Amendment to the Representation of
the People Act, 2002 safeguards the right of
information which is a part of the guaranteed
right under Article 19(1)(a), is the question to
be considered now with specific reference to
each of the three points spelt out in the
judgment of this Court in Assn. for Democratic
Reforms case.
115. As regards the first aspect, namely,
criminal record, the directives in Assn. for
Democratic Reforms case are two-fold: (SCC p.
322, para 48)
(1) Whether the candidate is
convicted/acquitted/discharged of any
criminal offence in the past, if any,
whether he is punished with
imprisonment or fine.
(2) Prior to six months of filing of
nomination, whether the candidate is an
accused in any pending case, of any
offence punishable with imprisonment
for two years or more, and in which
charge is framed or cognizance is taken
by the court of law.
As regards the second directive,
Parliament has substantially proceeded on the
same lines and made it obligatory for the
554
candidate to furnish information as to whether
he is accused of any offence punishable with
imprisonment for two years or more in a
pending case in which a charge has been framed
by the competent court. However, the case in
which cognizance has been taken but charge has
not been framed is not covered by clause (i) of
Section 33-A(I). Parliament having taken the
right step of compelling disclosure of the
pendency of cases relating to major offences,
there is no good reason why it failed to provide
for the disclosure of the cases of the same
nature of which cognizance has been taken by
the Court. It is common knowledge that on
account of a variety of reasons such as the
delaying tactics of one or the other accused and
inadequacies of the prosecuting machinery,
framing of formal charges gets delayed
considerably, especially in serious cases where
committal procedure has to be gone through. On
that account, the voter/citizen shall not be
denied information regarding cognizance taken
by the Court of an offence punishable with
imprisonment for two years or more. The
citizen's right to information, when once it is
recognized to be part of the fundamental right
under Article 19(1)(a), cannot be truncated in
the manner in which it has been done. Clause (i)
of Section 33-A(I) therefore falls short of the
avowed goal to effectuate the right of
555
information on a vital aspect. Cases in which
cognizance has been taken should therefore be
comprehended within the area of information
accessible to the voters/citizens, in addition to
what is provided for in clause (i) of Section 33-
A.
xxx xxx xxx
123. Finally, the summary of my conclusions:
(1).....
(2).....
(3) The directives given by this Court in Union of
India v. Assn. for Democratic Reforms were
intended to operate only till the law was made
by the legislature and in that sense "pro
tempore" in nature. Once legislation is made,
the Court has to make an independent
assessment in order to evaluate whether the
items of information statutorily ordained are
reasonably adequate to secure the right of
information available to the voter/citizen. In
embarking on this exercise, the points of
disclosure indicated by this Court, even if they
be tentative or ad hoc in nature, should be given
due weight and substantial departure therefrom
cannot be countenanced.
xxx xxx xxx
556
(6) The right to information provided for by
Parliament under Section 33-A in regard to the
pending criminal cases and past involvement in
such cases is reasonably adequate to safeguard
the right to information vested in the
voter/citizen. However, there is no good reason
for excluding the pending cases in which
cognizance has been taken by the Court from
the ambit of disclosure.
xxx xxx xxx
(9) The Election Commission has to issue revised
instructions to ensure implementation of Section
33-A subject to what is laid down in this
judgment regarding the cases in which
cognizance has been taken...."
A three Judge Bench of Hon'ble Supreme Court in the
case of Satish Ukey -Vrs.- Devendra Gangadharrao
Fadnavis and Anr. reported in (2019) 9 Supreme Court
Cases 1, a matter which was concerned with filing of false
affidavit in Form 26, held as follows:
"24. A cumulative reading of Section 33-A of the
1951 Act and Rule 4-A of the 1961 Rules and
Form 26 along with the letters dated 24.8.2012,
26.9.2012 and 26.4.2014, in our considered
view, make it amply clear that the information to
be furnished under Section 33-A of the 1951 Act
557
includes not only information mentioned in
clauses (i) and (ii) of Section 33-A(1), but also
information, that the candidate is required to
furnish, under the Act or the Rules made
thereunder and such information should be
furnished in Form 26, which includes information
concerning cases in which a competent Court
has taken cognizance (Entry 5(ii) of Form 26).
This is apart from and in addition to cases in
which charges have been framed for an offence
punishable with imprisonment for two years or
more or cases in which conviction has been
recorded and sentence of imprisonment for a
period of one year or more has been imposed
(Entries 5(i) and 6 of Form 26 respectively).
25. In the light of the view that we have taken
and in view of the clear averment made in the
complaint to the effect that the First Respondent
had knowledge of the two cases against him
which had not been mentioned in the affidavit
filed by the First Respondent along with his
nomination papers, we unhesitatingly arrive at
the conclusion that the order of the learned trial
Court upheld by the High Court by the impugned
judgment and order dated 3rd May, 2018 is
legally not tenable and the same deserves to be
set aside which we hereby do. The complaint of
the appellant will be considered afresh by the
558
learned trial Court from the stage where it was
interdicted by the order dated 30.5.2016."
Adverting to the contentions raised by the learned
counsel for the respective parties, there is no dispute over the
proposition of law that the elector/voter's right to know about
the full background of a candidate, evolved through Court
decisions, is an added dimension to the rich tapestry of our
constitutional jurisprudence. The disclosure of criminal
antecedents of a candidate, especially pertaining to heinous or
serious offence or offences relating to corruption or moral
turpitude, at the time of filing of nomination paper, as mandated
by law, is a categorical imperative. When there is non-disclosure
of the offences pertaining to these areas, it creates an
impediment in the free exercise of electoral right. Concealment
or suppression of this nature deprives the voters to make an
informed and advised choice as a consequence of which it would
come within the compartment of direct or indirect interference or
attempt to interfere with the free exercise of the right to vote by
the electorate. The question whether it materially affects the
election or not will not arise in cases of this nature.
Though the Respondent has declared in his affidavit
in Form 26 that thirteen cases were pending against him, but as
559
it appears, in some cases he has mentioned the date of
registration of F.I.R. wrongly, in some cases names of police
station have been wrongly reflected, in some cases names of
Courts where the cases were pending have been erroneously
mentioned, in some cases offences have been incorrectly
mentioned or offences have been deleted and the date of
framing of charge in one case is wrongly reflected. In some
cases, where cases under P.C. Act has been registered against
him, he has omitted to mention the same in the affidavit in
appropriate columns on the ground that offence under such Act
is not applicable to him. The Respondent is not to judge at that
stage whether the offence under P.C. Act would be applicable to
him or not. If he had any grievance regarding institution of case
or filing of charge sheet for commission of offence under P.C. Act
against him as he was not a public servant, he has to take
appropriate remedy in accordance with law to challenge such
institution or cognizance order or framing of charge. If a non-
public servant is also a party to a criminal conspiracy on behalf
of a public servant to commit any offence under the P.C. Act, or
if such non-public servant has abetted any of the offences which
the public servant commits, such non-public servant is also liable
to be tried along with the public servant before the Court of a
560
Special Judge having jurisdiction in the matter. The Legislature,
while framing P.C. Act, 1988 made no room for any doubt about
the applicability of certain provisions of Penal Code for offences
under the Act. The absence of such a provision as found in the
P.C. Act will only lead to the conclusion that the legislature did
not want to wipe out all the provisions of the Penal Code except
sections 161 to 165A which are found redrafted in the 1988 Act.
Under section 3 of the 1988 Act, the Special Judge has power to
try not only any offences punishable under this Act, but also any
conspiracy to commit or any attempt to commit or any abetment
of any of the offences under the Act. The private individuals,
therefore, can be prosecuted by the Court on the ground that
they have abetted the act of criminal misconduct falling under
section 13(1)(e) of the P.C. 1988 committed by the public
servant. (Ref:-P. Nallammal and Ors. -Vrs.- State Rep. by
Inspector of Police : (1999) 6 SCC 559).
When specific questions were put by the learned
counsel for the Election Petitioner to the Respondent with
reference to exhibited documents regarding incorrect/false
declaration made in respect to different criminal cases, the
Respondent only answered that his advocate could reply. Such
types of answers clearly indicate that the Respondent is clueless
561
to the mistakes he had committed while making declaration
regarding the criminal cases pending against him in his affidavit
in Form 26. The Respondent has admitted about the
omissions/wrong declaration and in most of the cases, either he
had offered no explanation or his explanation in some cases are
not at all acceptable in law. Most of the time he has given
explanation that it was a clerical error/typographical error which
cannot be accepted at all. The Respondent was duty bound as a
candidate to make true disclosure about the criminal cases
pending against him. Taking defence of clerical or printing error
cannot be countenanced when it is apparent that such errors
have occurred at multiple places. A responsible man seeking
election to the House of the State Legislature is not expected to
file his nomination whimsically without verifying the contents
thereof, specifically taking into account the fact that voters shall
judge him on the basis of disclosure he makes in his nomination
papers as well as the affidavit. Suppression/wrong
information/false information has affected the voter's
fundamental right to know about the criminal cases pending
against the Respondent correctly. The newspaper declaration
made by the Respondent about the criminal cases are also not
been correctly made. When according to the Respondent, the
562
F.I.R. and other connected documents of all the thirteen cases
were available with him as well as with his advocate(s) when
nomination papers were filed and affidavits in Form 26 were
prepared and he was also aware that he should furnish the
correct details about the F.I.R., G.R. case numbers, names of
Courts, details of offences, description of offences in his
affidavits in Form 26, it was not expected of him to furnish
wrong information/false information which amounts to
concealment of truth from the voters. The submission of learned
counsel for the Respondent regarding absence of pleading on
some points is not acceptable inasmuch as on a careful scrutiny,
I find that specific pleadings have been made in the election
petition in this respect and the Respondent has also answered
vividly to such pleadings in his written statement and filed
documents to that respect. Thus, I am of the humble view that
the Respondent has not made proper and full declaration about
the criminal cases pending against him in the affidavit filed in
Form 26 and as such issue nos.17 and 21 are answered in favour
of the Election Petitioner and against the Respondent.
563
12. Issue Nos.22, 23, 24, 25, 26 & 27:-
Issues nos.22, 23, 24, 25, 26 & 27 are interlinked
with each other and thus, are dealt with and answered together.
The issues are extracted herein below for ready reference:-
22. Whether the Respondent has disclosed the
name and other details of the Joint Account
Holder of the Bank account no.1377010031593
in the Federal Bank Ltd. and about the A/c.
no.10861745745 in S.B.I. Main Branch, Cuttack
in the affidavit filed in Form 26?
23. Whether the sole Respondent is required
under law to disclose the name of the joint
account holder of the bank accounts standing in
his name in his Affidavit in Form 26 or not?
24. Whether the bank accounts as mentioned
under paragraph-7(D) of the Election Petition
stand in the name of the sole Respondent and
his wife Firdousia Bano with operational
instruction "Either or Survivor" or not?
25. Whether the Respondent has declared the
book value of the shares as per the books of the
company held by him in the affidavit filed in
Form-26?
26. Whether the Respondent has furnished the
details in the affidavit filed in Form 26 about the
564
investment made in his name and his spouse's
name in the insurance policies?
27. Whether the Respondent is required to give
details in respect of each investment made by
him and as to whether he has disclosed about
the loans given to the companies in the affidavit
filed in Form 26?
The Election Petitioner in para 7(D) of the election
petition has pleaded as follows:-
(i) column (7)(a) Note 1 of the prescribed form
of Form 26 requires assets in joint name
indicating the extent of joint ownership will also
have to be given but the Respondent in the
affidavit, though has mentioned about the
Account No.13770100031593 (joint account) in
the Federal Bank Ltd, B.K. Road, Cuttack and
about the Account No.10861745745 (joint
account) in S.B.I., Main Branch, Cuttack, but has
not disclosed the name and other details of the
joint account holder of the above said bank
accounts and has not indicated about the extent
of ownership in the said bank accounts;
(ii) In column no.(7)(iii), the Respondent has
declared about the investment made in shares of
different companies but has not declared the
book value of shares as per the books of the
company;
565
(iii) In column (7)(iv) the Respondent is
required to declare the details of investment in
NSS, Postal Savings, Insurance Policies and in
any financial instruments in Post Office or
Insurance Company and the amount but the
Respondent has not given the details of
investment made in his and his spouse's
insurance policies. The Respondent is required to
give details separately in respect of each
investment. He has given loans to six companies
but the details of the same have not been given.
The Respondent in reply to averments made in para
7(D) of the election petition contented, in his written statement,
that the allegations made by the Election Petitioner are
completely based on surmises and are out and out false,
fabricated, concocted and hence, stoutly and vociferously denied
and argued that the pleadings made in para 7(D) are bereft of
material facts and the same do not disclose complete cause of
action.
The contentions of Mr. Kanungo, learned counsel for
the Election Petitioner are as follows:-
Column 7(A) Note-1 of Ext.43 prescribes,
"Assets in joint name indicating the extent of
joint ownership will also have to be given."
In Col.7(ii) Sl.2 of Ext.43, the Respondent has
566
declared that, "The Federal Bank Ltd., B.K.
Road, Cuttack, A/C No.13770100031593 (joint
account) and at Sl.3 has declared S.B.I. Main
Branch, Chandnichowk, Cuttack A/C
No.10861745745 (joint account), but has not
declared the name of the joint owner and the
extent of the joint ownership of the above said
joint accounts in his affidavit in Form 26 filed
along with his nomination papers and has not
declared about the above said two bank
accounts in his spouse column as she is the joint
account holder. Thus, the Respondent, has not
declared in his affidavit in Form 26 as per the
instructions of the Election Commission of India
in Col.7(A) Note-1."
The Election Petitioner in his examination-in-chief has
stated as follows:-
"That in column (7)(A) Note-1 of the prescribed
Form 26 requires assets in joint name indicating
the extent of joint ownership will also have to be
given in the affidavit filed along with the
nomination papers. But the Respondent in his
affidavit filed in Form 26 along with his
nomination papers, though has mentioned about
the Account No.13770100031593 (joint account)
in the Federal Bank Ltd, B.K. Road, Cuttack and
about the Account No.10861745745 (joint
account) in S.B.I, Main Branch, Badambadi,
567
Cuttack, but has not disclosed the name of the
joint owner and the extent of joint ownership of
the above said joint accounts in the said Federal
Bank and State Bank of India.
The Respondent, in his examination-in-chief
(Ext.DW), has stated as follows:-
"An instruction has been given in column (7)(A)
vide Note-1 that, 'Assets in joint name indicating
the extent of joint ownership will also have to be
given. Under any of the instructions vide Note-1
to Note-6, there is no instruction to disclose the
name and other details of the joint account
holder."
"Both the abovementioned bank accounts are
joint accounts standing in my name and in the
name of my spouse namely Firdousia Bano and
those bank accounts are opened with the
operational instruction 'EITHER OR SURVIVOR'."
"Since both the abovementioned bank accounts
have been shown in my affidavit in Form 26 in
the column applicable to me, the same has not
been shown again in the column applicable to
my spouse in order to avoid duplication."
The Respondent, in his cross-examination, has
admitted as follows:-
568
"It is a fact that as per col. no.7(A) Note-1, as a
candidate, I am required to disclose the extent
of joint ownership in respect of the assets in
joint name. Since the accounts in the Fedral
Bank Ltd., B.K. Road, Cuttack and S.B.I., Main
Branch, Chandinchowk, Cuttack were joint
accounts, but it was 'either or survivor',
according to me, there was no necessity on my
part to disclose the extent of joint ownership of
the amount reflected in those two accounts. It is
a fact that I have not mentioned that these two
accounts in the Federal Bank Ltd., B.K. Road,
Cuttack and S.B.I., Main Branch, Chandinchowk,
Cuttack are the joint accounts under the
category of 'either or survivor', since it was only
required to reflect the joint account part in col.
no.7(A) sl.no.(ii). It is a fact that I have not
mentioned these two accounts in col. no.2 of
7(A) sl.no.(ii) in which I have reflected the other
two bank accounts of my spouse Firdousia Bano
standing at Bank of India, Ranihat, Cuttack and
Kotak Mahindra Bank, as according to me,
mentioning those two accounts which were
operated in the category of 'either or survivor' in
this particular column would have been a
repetition and would have created confusion."
According to Mr. Kanungo, the Respondent in his
affidavit in Form 26 (Exts.43 to 46) has not declared the extent
569
of ownership of the above said two bank accounts and has not
disclosed the same that they are under the category of "Either or
Survivor" and has not followed the instructions of Col.7(A) Note-
1.
Column 7(A) Note-3 of Ext.43 prescribes, "Value of
Bonds/Share Debentures as per Current market Value in Stock
Exchange in respect of listed companies and as per books in case
of non-listed companies should be given."
In Col.7(A)(iii) of Ext.43, the Respondent has
declared about the investment made in shares of different
companies but has not disclosed that the same are the book
value as per books of the company.
The Election Petitioner, in his examination-in-chief,
has stated as follows:-
"Similarly, according to column 7(A) Note-3, the
Respondent is to declare value of bonds/shares,
debentures as per current market value in Stock
Exchange in respect of listed companies and as
per books in case of non-listed companies. The
Respondent in his affidavit, filed in Form 26 in
column no.(7)(iii), has declared about the
investment made in shares of different
companies but has not disclosed that the same
570
are the book value as per the books of the
company."
The Respondent in his cross-examination has stated
as follows:-
"It is a fact that the amount reflected in sl.nos.1,
2, 3, 4 and 5 of col.no.7(A)(iii), I have invested
in share equity in Metro Builders (Orissa) Pvt.
Ltd., City Trade Arcade Pvt. Ltd. (The Blue
Lagoon), Metro Garden Estate Pvt. Ltd., Metro
Super Market and Metro Guards(O) Pvt. Ltd.
respectively. It is also a fact that the amount
reflected in sl.nos.1, 2 and 3, my spouse
Firdousia Bano has invested in share equity in
ASF Construction Pvt. Ltd., City Trade Arcade
Pvt. Ltd. and Metro Garden Estate Pvt. Ltd.
respectively. It is a fact that the companies in
which I and my spouse have made investment in
share equity as reflected in col.no.7(A)(iii) are
private companies and not listed in Stock
Exchange. It is a fact that though it was required
to disclose the book values of the investment in
shares in case of non-listed companies as per
col.no.7(A) Note-3, as per the advice given by
my company Chartered Accountant, I reflected
the figures as share equity in different private
companies in respect of me as well as my
spouse Firdousia Bano in col.no.7(A)(iii). I know
what is 'book value of a share'. I cannot say
571
whether the amounts reflected in col. nos.1 and
2 of col.no.7(A)(iii) are the book value of the
shares or not. It is not a fact that deliberately I
have not declared the book value of the
investments in shares in col. nos.1 and 2 of
col.no.7(A)(iii) and suppressed the same so that
the voters of 90-Barabati Cuttack Assembly
Constituency would get no idea about the
same."
According to Col.7(A) Note-2 of Ext.43, it has been
prescribed, "In case of deposit/investment, the details including
serial number, amount, date of deposit, the scheme, name of the
bank/institution and branch are to be given" and according to
Note-5, "Details including amount is to be given separately in
respect of each investment".
In Col.7(A)(iv) of the affidavit in Form 26 (Ext.43),
the Respondent has mentioned that, "Details of investment in
NSS, Postal Saving, Insurance Policies and Investment in any
financial instruments in Post office or insurance company and the
amount" but, while declaring the same with respect to self, he
has declared that, "1) LIC No.582316154 dtd. 28.11.1996,
yearly Rs.2,53,600/- (Surrender Value), 2) LIC No.588536325
dtd. 05.05.2009, half-yearly Rs.25,99,797/- (Surrender Value),
3) HDFC Life Pol. No.18691865 dtd. 28.09.2016, yearly for Rs.
572
50,000/-" and with respect to his spouse he has declared that,
"1) LIC No.582316150 dtd. 28.11.1996, yearly Rs.1,70,155/-
(Surrender Value), 2) LIC No.588536326 dtd. 05.05.2009, half-
yearly Rs.25,99,797/- (Surrender Value) and with respect to his
dependent he has declared, "1) LIC Pol. No.588536129 dtd.
06.05.2019, HLY Rs.6,49,949/- (Surrender Value)." The
Respondent while declaring the same has not disclosed about the
amount of investment/deposit, date of deposit, the policy name
and the name of the branch from where the policy has been
purchased.
The Election Petitioner in his evidence affidavit has
stated as follows:-
"That in column (7)(iv) the Respondent is
required to declare the details of investment in
NSS, Postal Savings, Insurance Policies and in
any financial instruments in Post Office or
Insurance Company and the amount but the
Respondent in the said column of his affidavit
filed in Form 26 has not given the details of
investment made by him and his spouse's and
dependent regarding the investment made in the
LIC policies and HDFC life policy. The
Respondent is required to give details separately
in respect of each investment made in the LIC
policies and HDFC life policy. Thus, the
573
Respondent has suppressed the investments
made by him and his spouse in the said
insurance policies."
The Election Petitioner, in his cross-examination, has
stated as follows:-
"In para 7(D) of the election petition, I have
mentioned that in col.7(iv), though the
Respondent is required to declare the details of
investment in NSS, postal savings, insurance
policies and in any financial instruments in post
office or insurance company and the amount,
but the Respondent has not given the details of
investment made in his and his spouse's
insurance policies. It is correct that my
allegation is limited to the details of investment
made by the Respondent and his spouse in the
insurance policies."
The Respondent, in his examination-in-chief, has
stated as follows:-
"In my affidavit in Form 26 under column
(7)(A)(iv) against the heading 'Details of
investment in NSS, Postal Saving, Insurance
Policies and investment in any Financial
instruments in post office or Insurance Company
and the amount', I have correctly disclosed the
names of insurance companies, policy numbers,
574
policy date and the surrender value of such
insurance policies made in my name and in the
name of my spouse. In column 7(A)(v) against
the heading 'Personal loans/advance given to
any person or entity including firm, company,
Trust etc. and other receivables from debtors
and the amount', I have correctly mentioned the
name of the companies/entity/firm along with
the amount of loans given to those respective
companies/entity/ firm."
In his cross-examination, the Respondent has stated
as follows:-
"It is a fact that as per Note 5 of col. no.7(A) of
the affidavit in Form 26, a candidate has to
furnish the details including the amount
separately in respect of each investment. It is a
fact that as per Note-2 of col. no.7(A) of the
affidavit in Form 26, a candidate has to furnish,
in case of deposit/investment, the details
including sl. no., amount, date of deposit, the
scheme, the name of the Bank/Institution and
Branch. It is a fact that col. no.7(A)(iv) of the
affidavit in Form 26, while giving the details of
investment of the L.I.C. policy Nos.582316154
and 588536325, I have mentioned the date of
policy and the period of policy and its surrender
value, however, I have not indicated the amount
of investment and the scheme of the L.I.C.
575
policy in which the investments have been made
in the said two policies.
(Witness volunteers)
"Since I have furnished the surrender value of
the aforesaid two policies and the maturity value
had already been credited to my account, I did
not think it was further necessary on my part to
furnish the amount of investment and scheme of
the policies in which the investments have been
made. (The witness again says that he is not
sure whether the maturity value had already
been credited to his account or not)."
The Election Petitioner, in his examination-in-chief,
has stated as follows:-
"That the Respondent in column no.7(A)(v) of
his affidavit has mentioned that he has given
loans to six companies but the details of the
same have not been furnished in the said
affidavit."
The Respondent, in his examination-in-chief
(Ext.DW), has stated as follows:-
"In the prescribed format of the affidavit in Form
26, every candidate is required to disclose the
details of movable assets under column no.7(A)
of the affidavit against its sl. nos.(i) to (ix)."
576
"In column (7)(A) against its sl. no.(ii) against
the heading 'Details of deposit in Bank accounts
(FDRs, Term Deposits and all other types of
deposits including saving accounts). Deposits
with Financial Institutions, Non-banking Financial
Companies and Cooperative societies and the
amount in each such deposit', every candidate is
required to furnish information of self, his
spouse, his HUF and his dependents, which I
have furnished in detail in my affidavits in Form
26 (Ext.43, Ext.44, Ext.45 and Ext.46)."
In the cross-examination, the Respondent has stated
as follows:-
"It is a fact that in col. no.7(A)(iv) of the
affidavit in Form 26 at sl. no.3, while indicating
the investment in H.D.F.C. Life policy
no.18691865 dated 28.09.2016, I have
mentioned it was a yearly and for Rs.50,000/-. I
have not mentioned in detail the year-wise
investment made in that particular policy."
(Witness volunteers)
"After initial investment made on 28.09.2016 of
Rs.50,000/-, I have not deposited any amount in
that policy in the years 2017 and 2018 and after
the election was over, I deposited not only the
577
arrear dues for the years 2017 and 2018 so also
for the year 2019.'
Q. In col.no.7(A)(iv) of the affidavit in Form 26
under the heading of 'Spouse Name: Firdousia
Bano', you have mentioned only the L.I.C.
No.582316150 dated 28.11.1996, yearly
Rs.1,70,155/- (surrender value) and
No.588536326 dated 05.05.2009, half-yearly
Rs.25,99,797/- (surrender value), but you have
not mentioned the details of deposit, the date of
deposits, the scheme of the L.I.C. policies under
which such deposits were made?
Ans. Since my L.I.C. agents informed me after
calculation about the surrender value of the two
policies of my spouse, I thought it proper to
mention the same in col.no.7(A)(iv) of the
affidavit in Form 26 without giving the further
details of deposits, the date of deposits and the
scheme of the L.I.C. policies under which such
deposits were made.
Q. You have made false declaration in
col.no.7(A)(iv) of the affidavit in Form 26 that
surrender values of the two L.I.C. policies
No.582316150 dated 28.11.1996 and
No.588536326 dated 05.05.2009 of your spouse
were Rs.1,70,155/- and Rs.25,99,797/-
respectively and that you have not mentioned
578
the total investment made by your spouse in
these two policies?
Ans. No. I have not made any false declaration
in that respect. Since I had indicated the
surrender values of the said two policies, I did
not feel it necessary to further mention the total
investment made by my spouse in the aforesaid
two policies.
Q. There was instruction by the Election
Commission of India to mention the details of
investment and not the surrender value only and
by suppressing the details of investment, you
have flouted the instruction of the Election
Commission of India. What do you have to say?
Ans. No. I have not flouted any instruction of
the Election Commission of India.
To Court
Q. Whether by mentioning the surrender value
of a L.I.C. policy without mentioning the name
of the police and the period of policy, can a
voter know as to how much deposits/investment
you have made in that policy?
Ans. I cannot answer this question. My
advocate(s) can only reply.
579
"It is a fact that in col. no.7(A)(iv) of the
affidavit in Form 26 (Ext.43), though I have
mentioned under the headings of details of
investment that there has been investment of
mine in the L.I.C. policy no.588536129 dated
06.05.2009 which stands in the name of my
dependent Nayeema Tazeen, but I have only
indicated the surrender value of the L.I.C. policy
in the said column, but not the actual
investment made by me in the said policy."
"It is not a fact that though as per col. no.7(A)
(Note-2), I was supposed to give the details of
investment amount, but I have withheld such
information in col. no.7(A)(iv) of the affidavit in
Form 26 (Ext.43) deliberately not to bring the
correct picture before the voters of 90-Barabati
Cuttack Assembly Constituency."
According to Mr. Kanungo, learned counsel for the
Election Petitioner, the Respondent in his affidavit in Form 26
(Exts.43 to 46) has not declared the book value of the
investment in shares of different companies in col. no.7(A)(iii)
and has not declared about the details of investment made and
the date of deposit made in the insurance policies in col.
no.7(A)(iv) of the affidavit in Form 26 (Exts.43 to 46) and has
suppressed the same. Thus, the Respondent has made false and
misleading declaration with regard to his movable assets,
580
investments and loan liabilities in the affidavit filed in Form 26
along with his nomination papers as such his election from the
constituency held in the year 2019 is liable to declared void and
the issue nos.22, 23, 24, 25, 26 and 27 are to be answered in
favour of the Election Petitioner.
Mr. Bidyadhar Mishra, learned counsel for the
Respondent, on the other hand, urged that under Paragraph-
7(D) of the election petition, the Election Petitioner has taken the
following stand against the Respondent:-
(a) The Respondent in the affidavit, though has
mentioned about the Account
No.13770100031593 (joint account) in the
Federal Bank Limited, B.K. Road, Cuttack, but
has not disclosed the name and other details of
the joint account holder of the above said bank
account and has not indicated about the extent
of ownership in the said bank account;
(b) The Respondent in the affidavit, though has
mentioned about the Account No.10861745745
(joint account) in S.B.I, Main Branch,
Badambadi, Cuttack, but has not disclosed the
name and other details of the joint account
holder of the above said bank account and has
not indicated about the extent of ownership in
the said bank account;
581
(c) In column (7)(iii), the Respondent has
declared about the investment made in shares of
different companies but has not declared the
book value of shares as per the books of the
company;
(d) In column (7)(iv), the Respondent is
required to declare the details of investments in
NSS, Postal Savings, Insurance Policies and in
any financial instruments in Post Office or
Insurance Company and the amount but the
Respondent has not given the details of
investment made in his and his spouse's
insurance policies. The Respondent is required to
give details separately in respect of each
investment;
(e) The Respondent has given loans to six
companies but the details of the same have not
been given.
The Respondent, in his written statement, has dealt
with the averments taken under Paragraph-7(D) of the election
petition which are as follows:-
"The above allegations made by the Election
Petitioner in his election petition are completely
based on surmises, out and out false, fabricated,
concocted and hence stoutly denied."
582
"It is submitted by the sole Respondent that all
the above allegations/pleadings are bereft of
material facts and the same do not disclose
complete cause of action inasmuch as those
allegations are wholly unnecessary, frivolous,
vexatious, scandalous and tend to prejudice the
fair trial of the case and as such the pleadings
made under paragraph-7(D) of the election
petition are liable to be struck down being hit by
Order-VI Rule-16 of the C.P.C. on the grounds/
provisions of law as described herein below:
(a) The allegation/pleading as enumerated
under (a) above is bereft of following material
facts-
(i) It has not been pleaded/disclosed in the
election petition as to whether the candidate is
required under the law to give the details of the
joint account holder or not. It is submitted by
the Respondent that in fact there is no such
legal provision for disclosure of the details of the
joint account holder in affidavit in Form 26;
(ii) While making such allegation, the Election
Petitioner has not disclosed/pleaded the column
number of the affidavit under which the
Respondent has furnished such information;
(iii) The Election Petitioner has suppressed the
material fact that under column (7)(A)(ii), the
583
candidate is required to furnish information
about "Details of deposit in Bank accounts
(FDRs, Term Deposits and all other types of
deposits including saving accounts), Deposit with
Financial Institutions, Non-banking Financial
Companies and Cooperative societies and the
amount in each such deposit";
(iv) Though the Respondent has disclosed the
amount available in the said account, the same
has not been disclosed/pleaded by the Election
Petitioner;
(v) The Election Petitioner has suppressed the
very important material fact that the said bank
account is a joint account along with the spouse
of the Respondent namely Firdousia Bano and
the said bank account is opened with the
operational instruction "EITHER OR SURVIVOR";
(vi) There is no pleading to the effect that on
account of such non-mentioning of the extent of
ownership in the said bank account, the electors
have been misled and the result of the election,
in so far as it concerns the returned candidate,
has been materially affected.
(b) The allegation/pleading as enumerated
under (b) above is bereft of following material
facts-
584
(i) The averments made with respect to name
of the branch i.e. S.B.I., Main branch,
Badambadi is wrong. It is worthwhile to submit
here that the Respondent in his affidavit has
mentioned the said bank account as S.B.I., Main
Branch, Chandinichowk, Cuttack;
(ii) It has not been pleaded/disclosed in the
election petition as to whether the candidate is
required under the law to give the details of the
joint account holder or not. It is submitted by
the Respondent that in fact there is no such
legal provision for disclosure of the details of the
joint account holder in affidavit in Form 26;
(iii) While making such allegation, the Election
Petitioner has not disclosed/pleaded the column
number of the affidavit under which the
Respondent has furnished such information;
(iv) The Election Petitioner has suppressed the
material fact that under column (7)(A)(ii), the
candidate is required to furnish information
about "Details of deposit in Bank accounts
(FDRs, Term Deposits and all other types of
deposits including saving accounts), Deposit with
Financial Institutions, Non-banking Financial
Companies and Co-operative societies and the
amount in each such deposit";
585
(v) Though the Respondent has disclosed the
amount available in the said account, the same
has not been disclosed/pleaded by the Election
Petitioner;
(vi) The Election Petitioner has suppressed the
very important material fact that the said bank
account is a joint account along with the spouse
of the Respondent namely Firdousia Bano and
the said bank account is opened with the
operational instruction "EITHER OR SURVIVOR";
(vii) There is no pleading to the effect that on
account of such non-mentioning of the extent of
ownership in the said bank account, the electors
have been misled and the result of the election,
in so far as it concerns the returned candidate,
has been materially affected;
(c) The allegation/pleading as enumerated
under (c) above is bereft of following material
facts-
(i) The Election Petitioner has suppressed the
material fact that under column (7)(A)(iii), the
candidate is required to furnish information
about "Details of investment in Bonds,
Debentures/shares and unit in companies/
mutual funds and others and the amount".
(ii) Though the Respondent has mentioned the
names of companies wherein he has made
586
investments, the Election Petitioner has not
disclosed the same in his election petition;
(iii) Though the Respondent has mentioned the
amount in rupees in respective companies, the
Election Petitioner has not disclosed the same in
his election petition;
(iv) There is no pleading of the material fact to
the effect that under column the (7)(A) Note-3,
the candidate is instructed to furnish information
about "Value of Bonds/Share Debentures as per
current market value in Stock Exchange in
respect of listed companies and as per books in
case of non-listed companies should to given";
(v) There is no pleading to the effect that the
companies mentioned in column (7)(A)(iii)
wherein the Respondent has made investment,
are not listed companies but non-listed
companies;
(vi) There is no pleading to the effect that the
amount shown against respective companies is
not the book value of the shares;
(vii) There is no pleading about the numbers of
shares owned by the Respondent in different
companies;
(viii) There is no pleading to the effect that on
account of such non-mentioning of the book
587
value of shares as per the books of the
companies, the electors have been misled and
the result of the election, in so far as it concerns
the returned candidate, has been materially
affected.
(d) The allegation/pleading as enumerated
under (d) above is bereft of following material
facts-
(i) Though the Respondent in his affidavit in
Form 26 under column (7)(A)(iv) has disclosed
the names of insurance companies, policy nos.,
policy date and the surrender value of such
policies made in his name and in name of his
spouse, such material information/facts have not
been pleaded in the election petition;
(ii) There is no pleading to the effect that on
account of such non-mentioning of details of
investments made in Respondent's and his
spouse's insurance policies, the electors have
been misled and the result of the election, in so
far as it concerns the returned candidate, has
been materially affected.
(e) The allegation/pleading as enumerated
under (e) above is bereft of following material
facts-
(i) There is no pleading showing that under
which column of the affidavit the Respondent
588
has furnished information about the loans given
to six companies;
(ii) Though the Respondent under column
(7)(A)(v) has mentioned the name of the
companies/entity/firm along with the amount of
loans given to respective companies/entity/firm,
the same has not been pleaded/disclosed in the
election petition;
(iii) There is no pleading to the effect that on
account of such allegation, the result of the
election, in so far as it concerns the returned
candidate, has been materially affected.
Mr. Mishra, learned counsel for the Respondent
argued that on account of absence of material facts in pleadings
of the election petition, the same does not disclose complete
cause of action and as such is liable to be dismissed at the very
threshold. According to him, the Election Petitioner is to be
restricted and cannot be permitted to adduce any evidence
beyond his pleadings.
Mr. Mishra, learned counsel for the Respondent
argued that the following documents have been marked as
exhibits on behalf of the Respondent:-
Ext.ED i.e. First original Bank Passbook of
Federal Bank Ltd., Bajrakabati Road Branch,
589
Cuttack bearing Savings Bank Account
No.13770100031593 standing in the name of
the Respondent Mohammed Moquim and in the
name of his spouse Firdousia Bano with
operational instruction 'Either or Survivor'.
Ext.ED/1 i.e. Second original Bank Passbook of
Federal Bank Ltd., Bajrakabati Road Branch,
Cuttack bearing Savings Bank Account
No.13770100031593 standing in the name of
the Respondent Mohammed Moquim and in the
name of his spouse Firdousia Bano with
operational instruction 'Either or Survivor'.
Ext.EE i.e. First original Bank Passbook of State
Bank of India, Main Branch, Collectorate
Compound, Chandinichouk, Cuttack bearing
Savings Bank Account No.10861745745
standing in the name of the Respondent
Mohammed Moquim and in the name of his
spouse Firdousia Bano with operational
instruction 'Either or Survivor'.
Ext.EE/1 i.e. Second original Bank Passbook of
State Bank of India, Main Branch, Collectorate
Compound, Chandinichouk, Cuttack bearing
Savings Bank Account No.10861745745
standing in the name of the Respondent
Mohammed Moquim and in the name of his
spouse Firdousia Bano with operational
instruction 'Either or Survivor'.
590
Mr. Mishra, learned counsel for the Respondent drew
the attention of this Court to the evidence on affidavit of the
Election Petitioner (P.W.1)(Ext.36) which are as follows:-
"That column no.7(A) Note-1 of the prescribed
Form 26 requires assets in joint name indicating
the extent of joint ownership will also have to be
given in the affidavit filed along with the
nomination papers. But the Respondent in his
affidavit filed in Form 26 along with his
nomination papers, though has mentioned about
the Account No.13770100031593 (joint account)
in The Federal Bank Ltd, B.K. Road, Cuttack and
about the Account No.10861745745 (joint
account) in S.B.I, Main Branch, Badambadi,
Cuttack, but he has not disclosed the name of
the joint owner and the extent of joint ownership
of the above said joint accounts in the said
Federal Bank and State Bank of India."
"Similarly, according to column 7(A) Note-3, the
Respondent is to declare value of bonds/shares,
debentures as per current market value in Stock
Exchange in respect of listed companies and as
per books in case of non-listed companies. The
Respondent in his affidavit filed in Form 26 in
column no.7(iii), has declared about the
investment made in shares of different
companies but has not disclosed that the same
591
are the book value as per the books of the
company."
"That in column no.7(iv), the Respondent is
required to declare the details of investment in
NSS, Postal Savings, Insurance Policies and in
any financial instruments in Post Office or
Insurance Company and the amount but the
Respondent in the said column of his affidavit
filed in Form 26 has not given the details of
investment made by him and his spouse's and
dependent regarding the investment made in the
LIC policies and HDFC life policy. The
Respondent is required to give details separately
in respect of each investment made in the LIC
policies and HDFC Life policy. Thus, the
Respondent has suppressed the investments
made by him and his spouse in the said
insurance policies."
"That the Respondent in column 7(A)(v) of his
affidavit has mentioned that he has given loans
to six companies but the details of the same
have not been furnished in the said affidavit."
Mr. Mishra, learned counsel for the Respondent drew
the attention of this Court to the cross-examination of P.W.1 on
behalf of the Respondent which are follows:-
592
"On going through the affidavit filed by the
Respondent in Form 26 in col.7(A) under Exts.1
to 4 and Exts.32 to 35, I find that there is no
necessity for the candidate to mention the name
of the joint account holder. It is not a fact that in
view of col.7(A) in Form 26, the Respondent is
not required to disclose the name and other
details of the joint account holder of the two
bank accounts which I have mentioned in my
election petition in para 7(D) which are of
Federal Bank Ltd., B.K. Road, Cuttack and
S.B.I., Main Branch, Badambadi, Cuttack. The
Respondent has mentioned in Col. 7(A)(ii) that
he has an account in S.B.I., Main Branch,
Chandinchowk, Cuttack bearing A/c.
No.10861745745 (Jt. A/c.) of Rs.23,78,001/-,
but in the election petition in para 7(D), I have
mentioned that the said account of the
Respondent is at S.B.I., Main Branch,
Badambadi, Cuttack. It is not a fact that the
Respondent has no such account at S.B.I., Main
Branch, Badambadi, Cuttack."
"On going through the affidavit filed by the
Respondent in Form 26 in col.7(A) under Exts.1
to 4 and Exts.32 to 35, I find under Note-3, the
candidate has to mention the value of
bonds/share debenture as per current market
value in stock exchange in respect of listed
companies and as per books in case of non-
593
listed companies should be given. In
col.7(A)(iii), the Respondent has mentioned
share equity of his own in five different
companies and that of his wife in three different
companies. It is not a fact that as per the
requirement in the affidavit in col.7(A)(iii), the
Respondent has correctly declared the book
value of the shares as per the books of the
companies and that my averment made in para
7(D) that the Respondent has not declared the
book value of the shares as per books of
companies is not correct. It is not a fact that the
companies in which share equity of the
Respondent as well as his wife has been
reflected are all non-listed companies."
"In para 7(D) of the election petition, I have
mentioned that in col.7(iv), though the
Respondent is required to declare the details of
investment in NSS, postal savings, insurance
policies and in any financial instruments in post
office or insurance company and the amount,
but the Respondent has not given the details of
investment made in his and his spouse's
insurance policies. It is correct that my
allegation is limited to the details of investment
made by the Respondent and his spouse in the
insurance policies. On going through the
affidavit filed by the Respondent in Form 26 in
Col.7(A)(iv) under Exts.1 to 4 and Exts.32 to 35,
594
I find that the Respondent has indicated his
investment in two LIC policies as well as one
HDFC Life policy and that of his spouse in two
LIC policies. Though the number of the policies,
date of investment and its surrender value has
been indicated in all the cases, but the
investment value so also the period has not
been indicated. It is not a fact that as per
col.7(A) under the heading of 'details of movable
assets' under the six notes, the Respondent was
not required to mention the investment value so
also the period of investment in his and his
spouse's insurance policies."
"It is a fact that in my election petition in para
7(D), I have mentioned that the Respondent has
given loans to six companies, but the details of
the same have not been given. On going
through the affidavit filed by the Respondent in
Form 26 in col.7(A) under Exts.1 to 4 and
Exts.32 to 35, under the heading of 'details of
movable assets' in six notes, I do not find that
any such details is required to be given by a
candidate. In the affidavit in Form 26 in
col.7(A)(v) under Exts.1 to 4 and Exts.32 to 35,
the Respondent has mentioned the names of six
companies and the amount advanced to such
companies. According to me, some more details
should have been given about these loan
advances."
595
Q. Is there any instruction from the Election
Commission of India or by any other statutory
authority requiring a candidate to furnish any
other details by a candidate relating to loans or
advances?
Ans. Yes. I can produce such instruction."
Adverting to the contentions raised by the learned
counsel for the respective parties, it is apparent that column
7(A) Note-1 of Exts.43 to 46 requires the candidate to give the
assets in joint name indicating the extent of joint ownership. The
accounts in Federal Bank Limited, B.K. Road, Cuttack and S.B.I.,
Main Branch, Chandinichowk, Cuttack are the joint accounts
standing in the name of the Respondent and his spouse namely
Firdousia Bano and those two bank accounts were opened with
operational instruction 'either or survivor'. The Respondent has
admittedly not mentioned the extent of joint ownership of those
two accounts in his affidavit in Form 26 filed along with his
nomination papers. He has not even declared those two bank
accounts in his spouse column which he was required to indicate
as she was the joint account holder. The explanation given by
the Respondent that since he had shown the bank accounts in
his affidavit in Form 26 in the column applicable to him, the
same was not shown in the column applicable to his spouse in
596
order to avoid duplication, is not at all acceptable. Similarly, the
explanation given by the Respondent that since the two accounts
were 'either or survivor', there was no necessity on his part to
disclose the extent of joint ownership of the amount reflected in
those two accounts, is not acceptable. Similarly, the explanation
given by the Respondent that he had not mentioned these two
accounts in col. no.2 of 7(A) sl. no.(ii) as it would have been a
repetition and would have created confusion, is also not
acceptable. Nowhere in his affidavits in Form 26, the Respondent
has either declared the extent of ownership of these two bank
accounts nor has mentioned that those two were under the
category of 'either or survivor'. Similarly, in col. no.7(A)(iii) of
Exts.43 to 46, though the Respondent has declared about the
investment made in shares of different companies but he had not
disclosed that those were the correct book values as per books of
company. The Respondent was required to indicate the value of
bonds/share debentures as per current market value in Stock
Exchange in respect of listed companies and as per books in case
of non-listed companies in view of col. no.7(A) Note-3. The
Respondent admits that it was required to disclose the book
values of the investment in shares in case of non-listed
companies, but as per the advice given by his company
597
Chartered Accountant, he only reflected the figures as share
equity in different private companies in respect of him as well as
his spouse. Similarly, so far as the life insurance policies are
concerned, the Respondent while making declaration about the
same, has not disclosed about the amount of investment/
deposit, date of deposit, the policy name and the name of the
branch from where the policy was purchased which was in
contravention to col. no.7(A)(iv) of the affidavit in Form 26. The
Respondent admits that as per col. no.7(A) Note-2 of the
affidavit in Form 26, a candidate has to furnish in case of
deposit/investment, the details including Sl. No., amount, date of
deposit, the scheme, the name of the bank/institution and
branch and he further admits that he had not indicated the
amount of investment and the scheme of the L.I.C. policy in
which the investments have been made in those policies in his
affidavit. He has stated that he did not feel it necessary to
mention the total investment made by his spouse in the two
L.I.C. policies. He further admits that though he had mentioned
that he had invested in the L.I.C. policy of his dependant
Nayeema Tazeen, he had only indicated the surrender value but
not the actual investment made by him in the said policy. The
contention of the learned counsel for the Respondent that there
598
is absence of material pleadings in the election petition on these
issues and that the same does not disclose complete cause of
action is not at all acceptable. An element of sanctity and
solemnity is attached to the declaration made by a candidate and
this very fact is evidently apparent as it is required to be in the
form of an affidavit sworn. Therefore, there is scarcely any doubt
that it is to be strictly followed. Suppression of material
information and/or giving false information is not permissible.
The information should be correct and complete in all respect. A
citizen/voter has the right to know about the contesting
candidate and that right is a part of the fundamental right. The
information about the candidate to be selected is essential as it
would be conducive to transparency and purity in the process of
election.
In view of the foregoing discussions, I am of the
considered view that the Respondent had not disclosed the name
of the joint account holder of the two bank accounts so also
other details which he was required to furnish as per the
instruction given in the affidavit in Form 26. The Respondent has
also not declared the book value of the shares as per the books
of the company and he has not furnished the details about the
investment made in his name and in the name of his spouse in
599
the insurance policies so also the details in respect of his
investment made by him and therefore, the issues no.22, 23, 24,
25, 26 and 27 are answered in favour of the Election Petitioner
and against the Respondent.
13. Issue Nos.28, 29, 30, 31 & 32:-
As issue nos.28, 29, 30, 31 and 32 are interlinked
with each other, the same are being discussed and answered
together. The issues are extracted herein below for ready
reference:-
28. Whether the Respondent has disclosed true
and correct details of the properties held by him,
his spouse and dependents in the affidavit filed
in Form 26?
29. Whether mentioning the name of Mouza as
"Patpur" instead of "Patapur" in Cuttack district
creates any confusion or not?
30. Whether the sole Respondent has correctly
disclosed all the movable and immovable assets
of self and his spouse in his affidavit in Form 26
dated 03.04.2019 or not?
31. Whether the Respondent has disclosed
about the loans taken by his company from
600
Orissa Rural Housing Development Corporation
(OHRDC)?
32. Whether the Respondent has declared the
purchase price and development/construction
cost of immovable properties of his spouse in
the affidavit filed in Form 26?
The Election Petitioner in para 7(E) of the election
petition has pleaded that in column (7)(B)(ii), the Respondent
has declared about the non-agricultural land at Mouza: Chandini
Chowk, Unit-13, Khata No.799, Plot No.220 and 221, but there is
no Plot No.221 in Khata No.799 as per the R.O.R. downloaded
from the official website i.e., bhulekh.
The Respondent in reply to averments made in para
7(E) has contented, in his written statement, that the allegations
made by the Election Petitioner in his election petition are
completely based on surmises, out and out false, fabricated,
concocted and hence, stoutly denied and pleaded that the same
does not disclose complete cause of action.
The Election Petitioner in his evidence on affidavit
(Ext.36) has stated as follows:-
"25. That the Respondent has further declared
that he is the owner of the Mouza Unit-13,
Chandini Chowk, Khata No.799, Plot No.220 and
601
221, but Plot No.221 has not been recorded in
Khata No.799 as per the certified copy of the
R.O.R filed and marked as Exhibit-5.
Further, one Ezad Ali, S/o- Sayed Irfan Ali is the
recorded owner of the said Khata no.799, Plot
no.220 only. Similarly, the area of Plot no.220
and 221 has not been declared or described
separately by the Respondent in his affidavit
filed in Form 26."
The Election Petitioner in his cross-examination has
stated as follows:-
"The copy of the R.O.R. which has been
downloaded by me on 28.06.2022 at 3.44.28
p.m. relating to Mouza: Unit No.13 Chandini
Chowk, Khata No.799 indicates that there is only
one plot i.e. 220 under the said khata number.
The downloaded copy of the R.O.R. is marked as
Ext.K. There is no plot number 221 in it."
The Respondent, in his examination-in-chief, has
stated as follows:-
"This is the certified copy of the registered sale
deed bearing No.3458 dated 11.04.2011 with
respect to Plot No.220 under Khata No.799 for
an area of Ac.0.013 dec., out of its total area
Ac.0.130 dec and Ac.0.004 dec from Plot No.221
under Khata No.48, out of its total area Ac.0.014
602
dec., total area purchased Ac.0.017 dec. of Unit-
13, Chandinichowk, Cuttack purchased from one
Sayed Ijad Ali on 11.04.2011 for a consideration
of Rs.6,00,000/- by me and the same is marked
as Ext.EH."
"I have purchased a compact area of Ac.0.017
dec. i.e. Ac.0.013 dec. from Plot No.220 under
Khata No.799, out of its total area Ac.0.130 dec.
and Ac.0.004 dec. from Plot No.221 under Khata
No.48 out of its total area Ac.0.014 dec. of Unit-
13, Chandini Chowk, Cuttack from one Sayed
Ijad Ali on 11.04.2011 for a consideration of
Rs.6,00,000/- through registered sale deed. This
is the certified copy of the said registered sale
deed bearing No.3458 dated 11.04.2011 and the
same be marked as exhibit. I have furnished all
the required information with respect to the said
property in my affidavit in Form 26 (Ext.43,
Ext.44, Ext.45 and Ext.46) under its column
(7)(B)(ii) vide item no.2."
The Respondent, in his cross-examination, has stated
as follows:-
"Ext.EH, the certified copy of the registered sale
deed bearing No.3458 dated 11.04.2011
indicates that I have purchased two plots and
one of such plots appertains to Khata No.48, Plot
No.221, area Ac.0.014 dec. It is a fact that in
603
col. no.7(B)(ii)(sl.no.2) under the heading of
'non-agricultural land', I have omitted to
mention Khata No.48, though I have mentioned
the plot no.221 which was purchased by me vide
Ext.EH."
According to Mr. Kanungo, the Respondent has
suppressed to disclose the khata number of plot no.221 in his
affidavit in Form 26 (Ext.43).
The Election Petitioner in para 7(F) of the election
petition has pleaded as follows:-
"That in Para (7)(B)(iv), the Respondent has
declared about the residential building known as
"City Shelter" in the district of Cuttack, Mouza:
Cuttack Town Unit No.15, plot no.1882/3019,
2743, 1882/3020. Ground Floor Flat Nos.1/A,
2/B, F/5. In the above declaration, the
Respondent has not declared the Khata No. of
the above said plot nos. whereas in the
declaration made with respect to his spouse, he
has declared in serial no.(2) that Khata
No.04/79, 04-80 plot no.1882/3019, 1882/3020
and in serial no.(3), he has mentioned Khata
No.992 with respect to same plot nos. i.e plot
no.1882/3019, 1882/3020, 2743. The
Respondent has mentioned about the above said
plots in three Khatas which are false declarations
604
as all the above plots cannot be recorded in
three different Khata of same Mouza."
The Respondent, on the other hand, has pleaded that
a bare reference to the information furnished by the Respondent
with respect to the apartment "City Shelter" situated at Cuttack
Town, Unit 15 along with its flat nos. owned by the Respondent
and by his spouse will make it abundantly clear that the required
information i.e., residential buildings (including apartment)
location, survey nos. have been furnished and there is no
concealment of the required information.
The Election Petitioner, in his examination-in-chief
(Ext.36), has stated as follows:-
"That in Para (7)(B)(iv), the Respondent has
declared that he is the owner of the residential
building known as "City Shelter" in the district of
Cuttack, Mouza: Cuttack Town, Unit No.15, plot
nos.1882/3019, 2743, 1882/3020. Ground Floor
Flat Nos.1/A, 2/B, F/5; First Floor Flat Nos.2/B,
1/A, 05/E, 06/F; Second Floor Flat nos.5/E, 2/B;
Third Floors Flat Nos.2/B, 5/E, 1/A (1/2 share in
all above properties). In the above declaration,
the Respondent has not declared the Khata No.
of the above said plot nos., whereas in the
declaration made with respect to his spouse in
serial no.2, that Khata No.04-79, 04-80 plot
605
no.1882/3019, 1882/3020 and in serial no.3, he
has declared Khata no.992, plot no.1882/3019,
1882/3020, 2743. I have filed the certified copy
of the ROR of Mouza-Cuttack Town, Unit no. 15,
Choudhury Bazaar, Khata no.04-79, plot
no.1882/3019 and Khata no.04-80, plot
no.1882/3020 marked as Exhibit 7 and 8
respectively. Exhibit 7 & 8 discloses that the said
Khata has been recorded in the name of
Benudhar Sahu, Nibarana Sahu, S/o-
Ramachandra Sahu. I have also filed the
certified copy of ROR of Cuttack Town, Unit
no.15, Choudhury Bazaar, Khata no.992 in
which plot nos.1882/3019, 1882/3020 has not
been recorded. The certified copy of the ROR of
Khata no.992 has been marked as Exhibit 9. In
Exhibit 7, 8 & 9, there is no plot no.2743. So
also, plot nos.1882/3019, 1882/3020, 2743, has
been mentioned in three different Khatas are
also false as all the above plots cannot be
recorded in three different Khata of same
Mouza. Thus, the declarations made by the
Respondent in his affidavit filed in Form 26
regarding the above said residential properties
are misleading and false."
The Respondent, in his examination-in-chief, has
stated as follows:-
606
"In column 7(B) of the affidavit in Form 26,
every candidate is required to furnish
information about 'Details of immovable assets'
of his own, his spouse, his HUF and his
dependents. Under column 7(B)(iv) of the
affidavit in Form 26, every candidate is required
to furnish information in a tabular form about
'Residential Buildings (including apartments) its
locations(s) and survey number(s), area (total
measurement in sq. ft.), built-up area (total
measurement in sq. ft.), whether inherited
property (Yes or No), date of purchase in case of
self-acquired property, cost of property (in case
of purchase) at the time of purchase, any
investment on the land by way of development,
construction etc. and approximate current
market value' of his own, his spouse, his HUF
and his dependents, which I have furnished
correctly in my affidavit in Form 26 (Ext.43,
Ext.44, Ext.45 and Ext.46)."
"I have furnished required information in my
affidavit in Form 26 (Ext.43, Ext.44, Ext.45 and
Ext.46) in its column 7(B)(iv) under my name
vide item no.1 by giving the name of the
apartment i.e. 'City Shelter', the location and
survey numbers of the apartment i.e. Dist:
Cuttack Mouza: Cuttack Town, Unit No.15, Plot
No.1882/3019, 2743, 1882/3020, Ground Floor
Flat Nos.1/A, 2/B, F/5; 1st Floor Flat Nos.2/B,
607
1/A, 05/E, 06/F; 2nd Floor Flat Nos.5/E, 2/B; 3rd
Floor Flat Nos.2/B,S/E. 1/A (1/2 share in all
above properties)."
"Similarly, I have furnished required information
in my affidavit in Form 26 (Ext.43, Ext.44,
Ext.45 and Ext.46) in its column 7(B)(iv) under
my spouse's name vide item no.3 by giving the
name of the apartment i.e. 'City Shelter', the
location and survey numbers of the apartment
i.e. Dist: Cuttack Mouza: Cuttack Town, Unit
No.15, Khata No.992 Plot No.1882/3019,
1882/3020, 2743 Flat No. Ground Floor 1A, 2B,
05 1st Floor 2B, 1A, 5E, 6F; 2nd Floor 2B, 5E;
3rd Floor 2B, 5E, 1A (1/2 share in above
properties)."
"I have also furnished required information in
my affidavit in Form 26 (Ext.43. Ext.44, Ext.45
and Ext.46) in its column 7(B)(iv) under my
spouse's name vide item no.2 by giving the
name of the apartment i.e. 'City Shelter', the
location and survey numbers of the apartment
i.e. Dist: Cuttack Mouza: Unit-15 Khata
No.04/79, 04-80 Plot No.1882/3019, 1882/3020
Flat No.106 1st Floor."
The Respondent, in his cross-examination, has stated
as follows:-
608
"It is a fact that the property described in the
sale deed vide Ext.EM/2 has been reflected
under Schedule 'B' of the said sale deed to be
Flat No.05/E situated in the ground floor of the
multi-storeyed building of the complex in the
name and style of 'City Shelter', but while
mentioning the property in col.7(B)(iv) under
the heading of 'Residential buildings' (including
apartment), I have mentioned the flat number
to be F/5 inadvertently so far as my column is
concerned and in the column of my spouse, the
Flat number has been mentioned to be 05 and
such mistakes are typographical. It is not a fact
that deliberately I have made a false declaration
by mentioning the wrong flat number of 'City
Shelter' in my affidavit in Form 26 (Ext.43).
The Election Petitioner, in para 7(F) of the election
petition, has pleaded as follows:-
"In column (11) of Part B of the affidavit, the
Respondent is required to declare the abstract of
the details given in (1) to (10) of part A and in
column (8)(i), he is to declare the purchase
price of self-acquired immovable properties of
himself and his spouse. The Respondent while
declaring the purchase price of self-acquired
immovable property of his spouse has declared
"NOT APPLICABLE". He has not declared the
purchase price of the self-acquired properties by
609
his spouse. He has also not declared the
development/construction cost of immovable
property after purchase by his spouse. The
Respondent has also not declared in Part B
column (8)(iii) about the approximate current
price and the total value of self-acquired assets
by his spouse. Thus the Respondent has filed the
affidavit in Form 26 along with his nomination
paper by making false declarations and as such
his nomination has been accepted illegally and
improperly by the Returning Officer. Therefore,
the election of the Respondent is to be declared
void by this Hon'ble Court as he has violated the
mandate of section 33 of the R.P. Act, 1951 read
with Rule 4A of the Conduct of Election Rules,
1961."
The Election Petitioner, in his examination-in-chief,
has stated as follows:-
"That in Part B column (11) of the affidavit filed
in Form 26, the Respondent is required to
declare the abstract of the details given in (1) to
(10) of part A and in column (11)(8)(B) of Part B
of the affidavit, the Respondent is to declare the
purchase price of self-acquired immovable
properties of himself, his spouse and
dependents. But, the Respondent while declaring
the purchase price of self-acquired immovable
property of his spouse has declared "NOT
610
APPLICABLE" which is a false declaration as in
column no.7(B)(ii), (iii) and (iv) of Part A, he
has declared the purchase price of the properties
that his spouse has purchased property worth
Rs.38,000/-, Rs.10,000/-, Rs.22,51,844/-,
Rs.11,11,360/-, Rs.5,62,750/-, Rs.17,41,414/-,
Rs.2,86,650/- and Rs.1,10,700/-. The
Respondent has suppressed the purchase price
of the self-acquired properties by his spouse in
column (11)(8)(B) of Part B of the affidavit filed
in Form 26. Similarly, he has suppressed about
the investments made on the properties by way
of development/construction etc., made by his
spouse in the immovable propertiespurchased by
her. So also in column (11)(8)(B) of Part B, the
approximate current market price of the
properties and the total assets of his spouse has
not been declared and it has been falsely
declared as 'NOT APPLICABLE'. Thus, the
Respondent has filed the affidavit in Form 26
along with his nomination papers by making
false declarations and as such his nomination
has been accepted illegally and improperly by
the Returning Officer. Therefore, the election of
the Respondent is to be declared void by this
Hon'ble Court for filing false affidavit in Form 26
along with his nomination papers."
The Respondent, in his examination-in-chief
(Ext.DW), has stated as follows:-
611
"The further allegation of the Election Petitioner
is to the effect that in column (11) of Part B of
the affidavit, I am required to declare the
abstract of the details given in (1) to (10) of Part
A and in column 8(i), I am to declare the
purchase price of self-acquired immovable
properties of mine and my spouse. I, while
declaring the purchase price of self-acquired
immovable property of my spouse, have
declared "NOT APPLICABLE". I have not declared
the purchase price of the self-acquired
properties by my spouse. I have also not
declared the development/construction cost of
immovable property after purchase by my
spouse. I have also not declared in Part B
column (8)(iii) about the approximate current
price and the total value of self acquired assets
of my spouse."
"Since I have furnished all the required
information in detail with respect to immovable
assets of my spouse in column (7)(B) vide its sl.
nos.(i) to (vi) under Part-A of my affidavit in
Form 26 as well as total value of immovable
assets of my spouse in column 8(B) under Part-
B of my affidavit in Form 26, mentioning of 'Not
Applicable' inadvertently under the name of my
spouse against the column nos.(8)(B)(I),
(8)(B)(II) and (8)(B)(III) of Part-B of my
affidavit in Form 26, does not create any serious
612
confusion in the minds of the electorate of the
Constituency and the same cannot be said to be
suppression of information."
The Respondent, in his cross-examination, has stated
as follows:-
"It is a fact that in Part B of my affidavit in Form
26 (Ext.43) in col.8(B)(I), under the heading of
'purchase price of self-acquired immovable
property', col.8(B)(II), under the heading of
'development/construction cost of immovable
property after purchase (if applicable) and
col.8(B)(III), under the heading of 'approximate
current market price of (a) self-acquired assets-
total value and (b) inherited assets- total value,
I have mentioned the purchase price,
development/construction cost, approximate
current market price of my self-acquired
immovable property, but so far as my spouse is
concerned, I have mentioned as 'Not Applicable'.
Since I have mentioned in Part A col.7(B)(ii),(iii)
and (iv) of my affidavit in Form 26 regarding
the purchase price of the land, development/
construction cost, approximate current market
price with respect to my spouse, I did not
mention it in Part B of my affidavit in Form 26
(Ext.43) in col.8(B)(I), (II) & III. Such omissions
are clerical errors."
613
The Respondent in his affidavit in Form 26 (Ext.43)
at sl no.2 has declared that his spouse is the owner of the
property situated in Dist: Cuttack, Mouza: Odia Bazar, Unit
No.11, Khata No.41, Plot No.231 and the cost of land purchased
is Rs.10,000/-.
The Election Petitioner, in his evidence on affidavit
(Ext.36), has stated as follows:-
"In Para 7(B)(ii) sl. no.2 of the affidavit in Form
26 (Ext.43), the Respondent has declared that
his spouse is the owner of non-agricultural land
in the District of Cuttack, Mouza- Oriya Bazar,
Unit no.11, Khata no.41, Plot no.231. I have
filed the certified copy of the ROR of Mouza-
Cuttack Town, Unit no.11, Oriya Bazar, Khata
no.41 marked as Exhibit 12 which discloses that
the said Khata has been recorded in the name of
Jayanta Kumar Pattnaik, S/o- Goura Chandra
Pattnaik, having Plot no.444 only and Plot
no.231 has not been recorded in the said Khata
no.41. Hence, the declaration made in the
affidavit is false."
The Respondent, in his cross-examination, has stated
as follows:-
614
"In Ext.EU, certified copy of the register
Hibanama, though under the schedule of
property, it is mentioned that Khata No.41, Plot
No.231 is of village Sutahat, but in
Col.No.7(B)(ii) (Sl.No.2) of my spouse under the
heading of 'non-agricultural land', I have
mentioned the location of Khata and Plot to be
of mouza- Oriya Bazar Unit-11. Since my father
in-law's house situates in Oriya Bazar and this
property under Ext.EU was gifted by my father
in-law in favour of my spouse, inadvertently, I
have mentioned as 'mouza- Oriya Bazar' in col.
no.7(B)(ii) (Sl.No.2)."
"It is a fact that my spouse by way of Hibanama
from her father got the property of mouza
Sutahat, Khata No.41, plot no.231, area
Ac.0.023 dec. on 19.07.1983 which I have
mentioned in my affidavit in Form 26 (Ext.43) in
col. no.7(B)(ii) under the heading of non-
agricultural land, but while mentioning the cost
of the land (in case of purchase at the time of
purchase) though I have mentioned the cost of
the land (in case of purchase at the time of
purchase) to be Rs.10,000/-, the said land was
in fact not purchased by me, but as I have
already stated, it was gifted to my spouse by her
father on 19.07.1983 vide Ext.EU. The value of
the property gifted to my spouse as per Ext.EU
was shown to be Rs.10,000/-."
615
The Respondent in his affidavit in Form 26 (Ext.43)
at page 16 sl no.1 has declared that his spouse is the owner of
the property situated in Metro Plaza-1, Dist: Cuttack, Mouza Unit
No.11, Khata No.126 & 155, Plot Nos.1278, 1280 and 1278/1460
and 1280/1461 (Shop No. Gd. Floor 13, 14, 15, 1st Floor 13, 14,
15, & 16 and 13A, 14A and 15A).
The Election Petitioner, in his evidence on affidavit,
has stated as follows:-
"Similarly, declaration made in column 7(B)(iii),
in the spouse column, regarding commercial
building known as Metro Plaza-1, Dist: Cuttack,
Mouza: Unit no.11, Khata no.126, 155, Plot
nos.1278, 1280 and 1278/1460 and 1280/1461
is also not correct and false declaration. I have
filed the certified copy of the ROR of said Khata
no.126 marked as Ext.13. Ext.13 discloses that
Khata no.126, Plot no.1278, 1280 has been
recorded in the name of Iswar Das Agarwal, S/o-
Tarachand Agarwal, Maladevi Agarwal, W/o-
Iswar Das Agarwal and not in the name of
spouse of the Respondent. Further, the
Respondent has declared that his spouse is the
owner of Khata no.155, but there is no such
Khata available in the office of the Tahasildar,
Cuttack. Hence, the declaration made in the
affidavit filed in Form 26 is incorrect and false."
616
The Respondent, during cross-examination, has
stated as follows:-
"98. It is a fact that while mentioning the shop
nos. under the heading of 'commercial building'
in col. no.7(B)(iii) of my affidavit in Form 26
(Ext.43), I have shown shop nos.13A, 14A and
15A to be in the first floor though Ext.EX
indicates that those three shop rooms i.e. 13A,
14A and 15A are located in the basement floor.
It is a clerical mistake to omit 'basement floor' in
that particular column before 13A, 14A and 15A.
It is not a fact that I have made false declaration
by mentioning the existence of the aforesaid
three shop rooms in the first floor."
"I have not mentioned Hal Khata No.180/3, Hal
Plot No.1464/1604, 1460/1605 and Khata
No.180/4 in my affidavit in Form 26 (Ext.43)
under the heading of 'commercial building' in
col. no.7(B)(iii) as I did not feel it necessary to
mention the same in view of the details already
furnished in respect of the land in that particular
column. The property under Ext.EX is an
apartment. It is not a fact that deliberately I
have not filed the R.O.R of Hal (new) Khata
No.155 and Hal Khata No.126 before this Court
as I have mentioned falsely about such property
in my affidavit in Form 26 (Ext.43)."
617
The Respondent in his affidavit in Form 26 (Ext.43)
at page 17 col.7(B)(iv) sl. no.2 has declared that he is the owner
of the property situated in Metro Satellite City, Dist: Khordha,
Mouza: Rudrapur, Khata No.345, Plot No.414, Flat no.A108, 1st
Floor.
The Election Petitioner, in his evidence on affidavit,
has stated as follows:-
"That in Para 7(B)(iv)(2), the Respondent has
declared about his ownership at Metro Satellite
City, Mouza-Rudrapur, Khata no.345, Plot
no.414. I have filed the certified copy of the said
ROR of Mouza- Rudrapur, Khata no.345 marked
as Ext.16. Ext.16 discloses that plot no.414 has
not been recorded in the said Khata. Therefore,
the information so disclosed in the affidavit filed
in Form 26 of the Respondent is false and
incorrect."
The Respondent, in his cross-examination, has stated
as follows:-
"It is not a fact that under the sale deed Ext.EZ,
myself and one Peeyush Dhari Mohanty
purchased the property mentioned under the
heading of description of the scheduled property.
This particular property was developed by the
618
company and one particular flat in the first floor
i.e. Flat No.A108 was allotted in my favour in
the Metro Satellite City by the Company and
accordingly, I have reflected the same in my
affidavit in Form 26 (Ext.43). It is not a fact that
I have made false declaration with respect to the
property in Metro Satellite City. Ext.EZ is a sale
deed dated 31.10.2006 and it was developed by
the Company and when I filed nomination in the
year 2019 for the election in question, at that
point of time, one of the flats i.e. Flat No.A108
in the first floor of 'Metro Satellite City' was
allotted to me, which I have reflected in my
affidavit in Form 26 (Ext.43) and I did not feel
any necessity to mention the other details of the
sale deed vide Ext.EZ. I have not filed any
documents to show that the Company 'Metro
Builders (Orissa) Pvt. Ltd.' was entrusted to
develop the property purchased under the sale
deed Ext.EZ. It is a fact that I have not filed any
documents to show that Flat No.A108 of first
floor in Metro Satellite City was allotted in my
favour."
"It is a fact that I have mentioned in my
evidence on affidavit that after completion of the
project, namely, 'Metro Satellite City' over the
purchased land at mouza-Rudrapur, I as well as
Peeyush Dhari Mohanty sold out the flats/units
to our customers whereas I kept one flat i.e. Flat
619
No.A108, 1st floor for me. I have not purchased
Flat No.A108 in the 1st floor of 'Metro Satellite
City', but I got the flat in lieu of my land given
to the company for development on sharing
basis. It is not a fact that that even though the
property i.e. Flat No. A108 in the 1st floor of
'Metro Satellite City' was allotted to me by the
Company in lieu of my land given to the
Company for development on sharing basis, I
have made false declaration in my affidavit in
Form 26 (Ext.43) that this property was
purchased and the date of purchase was
31.07.2017 and that the cost of the property (in
case of purchase at the time of purchase) to be
Rs.30,69,768/-."
(The witness volunteers)
"A contract was executed by me and Peeyush
Dhari Mohanty with the Company namely, Metro
Builders (Orissa) Pvt. Ltd. that in lieu of the
land, which we provided, the Company has given
me Flat No.A108 in the 1st floor of 'Metro
Satelite City' and a document was executed by
the Company in my favour in that respect in
which the Company has reflected the cost of the
said flat to be Rs.30,69,768/- and that particular
document was executed on 31.07.2017 and
accordingly, I have reflected the date of
purchase and cost of the property in my affidavit
620
in Form 26 (Ext.43) in the col.7(B)(iv) sl.no.2
i.e. 'date of purchase in case of self-acquired
property' and 'cost of property (in case of
purchase at the time of purchase)."
"I cannot remember now whether the document
executed by the Company on 31.07.2017 in
respect of Flat No.A108 in the 1st floor of 'Metro
Satellite City' was registered or not."
Q. Whether such a document executed by the
Company on 31.07.2017 was required to be
registered or not?
Ans. According to me, it is not necessary.
"Ext.EZ is the sale deed in respect of the
property of mouza- Rudrapur, khata no.345, plot
no.414, area Ac.3.13 dec. which was purchased
by me and Peeyush Dhari Mohanty jointly. It is
not a fact that I have told falsehood on
12.09.2023 before this Court on oath at
paragraph no.101 of my cross-examination that
under the sale deed Ext.EZ, myself and one
Peeyush Dhari Mohanty did not purchase the
property mentioned under the heading of
description of the scheduled property."
"It is a fact that Santilata Prusty and four others
executed General Power of Attorney vide Ext.EY
in my favour as the Managing Director, Metro
Builders (Orissa) Pvt. Ltd. in respect of the
621
property of mouza: Rudrapur, khata no.345, plot
no.414, area Ac.3.13 dec. As the Managing
Director, Metro Builders (Orissa) Pvt. Ltd., I
executed sale deed vide Ext.EZ in my favour as
well as in favour of Peeyush Dhari Mohanty. It is
a fact that the registered power of attorney
marked as Ext.EY did not reflect that the
vendors of the property (original owners of the
land) executed such document in my favour in
individual capacity, but as the Managing
Director, Metro Builders (Orissa) Pvt. Ltd. It is a
fact that in the capacity as Managing Director,
Metro Builders (Orissa) Pvt. Ltd., I executed sale
deed vide Ext.EZ in favour of me and Peeyush
Dhari Mohanty. It is a fact that I have omitted to
mention in my evidence on affidavit at page 118
(first sub-paragraph) as well as in my
examination-in-chief (at page 12) that the
registered power of attorney vide Ext.EY was
executed in my favour in the capacity of
Managing Director, Metro Builders (Orissa) Pvt.
Ltd. It is not a fact that I have stated falsehood
in my evidence on affidavit (Ext.DW) as well as
in my examination-in-chief in that respect. It is
a fact that I have omitted to mention in my
evidence affidavit at page 118 (second sub-
paragraph) as well as in my examination-in-chief
(at page 12) that the registered sale deed vide
Ext.EZ was executed by me in the capacity of
Managing Director, Metro Builders (Orissa) Pvt.
622
Ltd. It is not a fact that I have stated falsehood
in my evidence on affidavit (Ext.DW) as well as
in my examination-in-chief in that respect."
Q. Please look at Ext.48 which reveals that in
mouza: Rudrapur, khata No.345, plot no.414 by
the date of filing of your nomination paper on
02.04.2019, several transactions have been
made in respect of this property and some flats
were transferred in favour of different persons
by you and whatever the balance landed
properties available with you as per the said
certificate (Ext.48) as on the date of filing of the
nomination paper, you have not correctly
reflected the same in your affidavit in Form 26
(Ext.43) at col.7(B)(iv).
Ans. Except Flat No.A108 in the first floor of
Metro Satellite City, the rest of the flats of
mouza Rudrapur had already been transferred in
favour of different customers prior to my filing of
nomination paper on 02.04.2019 and therefore,
I have mentioned accordingly in my affidavit in
Form 26 at col.7(B)(iv). It is not a fact that
apart from Flat No.A108, other flats were in my
possession and ownership, which I have not
reflected correctly in my affidavit in Form 26.
"It is not a fact that I was in
occupation/possession of other flats in Metro
Satellite City at mouza: Rudrapur, which I have
623
suppressed in my affidavit in Form 26 and that I
have not transferred the rest of the flats except
four as mentioned in Ext.48."
The Election Petitioner, in his election petition, has
pleaded that the Respondent had not declared in his affidavit in
Form 26 along with his nomination paper about the loans taken
by the company in which he himself and spouse were the
Directors. According to Mr. Kanungo, the Respondent's company
had taken huge amounts of loans from Odisha Rural Housing
Development Corporation Ltd. (hereafter 'ORHDC') when the
Respondent himself was the Managing Director of M/s. Metro
Builders Pvt. Ltd. and the Respondent has suppressed to disclose
the said facts in his affidavit in Form 26.
The Election Petitioner, in his evidence on affidavit,
has stated as follows:-
"That the Respondent has not declared in his
affidavit filed in Form 26 along with his
nomination paper about the loans taken by the
companies in which he himself and his spouse
are the directors. The Respondent's company
has taken huge amounts of loans from Odisha
Rural Housing Development Corporation when
the Respondent himself was the Managing
Director of M/s. Metro Builders Pvt. Ltd. The
624
Respondent has suppressed to disclose the
above facts in the affidavit filed in Form 26. The
certified copy of the FIR no.07 dated 30.03.2005
corresponding to T.R. Case No.01/2009 of the
Court of Spl. Judge (Vig.), Bhubaneswar marked
as Exhibit 29 discloses that loan amount of
Rs.1.5 crores was disbursed to the M/s. Metro
Builders Pvt. Ltd. by the Odisha Rural Housing
Development Corporation. Similarly, Exhibit 30,
the certified copy of FIR no.34 dated 06.09.2007
of Bhubaneswar Vigilance P.S. discloses the loan
outstanding against the M/s Metro Builders Pvt.
Ltd. is Rs.4,25,70,478/-. The Respondent has
suppressed about the loans taken by him as
Managing Director of M/s Metro Builders Pvt.
Ltd. from the Odisha Rural Housing Development
Corporation. The Respondent in column 8(ii) is
to declare about the loans or dues to any other
individuals/entity but the Respondent in the said
column has mentioned NIL which is a false
declaration."
The Respondent, in his examination-in-chief
(Ext.DW), has stated as follows:-
"The further allegation of the Election Petitioner
to the effect that I have not declared in my
affidavit filed in Form 26 along with my
nomination paper about the loans taken by the
companies in which I myself and my spouse are
625
the directors, that my company has taken huge
amounts of loans from Odisha Rural Housing
Development Corporation when I myself was the
Managing Director of M/s. Metro Builders Pvt.
Ltd., that I have suppressed to disclose the
above facts in the affidavit filed in Form 26, is
not correct and legally not sustainable."
The Respondent, during cross-examination, has
stated as follows:-
"My company, namely, M/s. Metro Builders
(Orissa Pvt. Ltd.) had taken loans from Odisha
Rural Housing Development Corporation. I have
not stood as a guarantor in the said loan
transaction. It is a fact that I have been
convicted in T.R. Case No.1 of 2009 by the Court
of Special Judge (Vigilance), Bhubaneswar
relating to the aforesaid loan transaction. It is a
fact that the learned trial Court has mentioned in
para 32 of the judgment dated 29.09.2022 that
the loan in question has been sanctioned upon
the security of the personal guarantee,
indemnity and assurance of the accused Md.
Moquim.
Mr. Kanungo, learned counsel for the Election
Petitioner submitted that it is evident that the Respondent had
not disclosed true and correct details of the movable and
626
immovable properties/assets held by him and his spouse in the
affidavit filed in Form 26 and has also not disclosed about the
loan taken by his company from ORHDC though he was the
personal guarantor of the said loan and has not declared the
purchase price and development/construction cost of immovable
properties of his spouse in Part B of the affidavit filed in Form 26
(Ext.43), hence, his election from the Constituency held in the
year 2019 is to be declared void.
Mr. Bidyadhar Mishra, learned counsel for the
Respondent, on the other hand, submitted that under Paragraph-
7(E) of the election petition, the Election Petitioner has taken the
following stand:
(a) In column 7(B)(ii), the Respondent has
declared about the non-agriculture land in
District-Cuttack, Mouza-Patpur, khata no.15-D1,
plot nos.114, 116, 112, 113. There is no mouza
known as Patpur in district Cuttack so the Khata
No. and Plot No. described therein are all false
declarations;
(b) The Respondent has declared about the
non-agriculture land of his spouse in district
Cuttack, mouza-Patpur, khata no.16-D1, plot
no.111/1048. There is no mouza known as
Patpur in district Cuttack so the Khata No. and
627
Plot No. described therein are all false
declarations deliberately made by the
Respondent to mislead the voters;
(c) The Respondent has further declared about
the mouza Unit-13, Chandini Chowk, khata
no.799, plot nos.220 and 221 but there is no
plot no.221 in khata no.799 as per the R.O.R
downloaded from the official website i.e.
bhulekh;
The Respondent, in his written statement, has dealt
with such stand taken under Paragraph-7(E) of the election
petition which are as follows:-
"The above allegations made by the Election
Petitioner in his election petition are completely
based on surmises, out and out false, fabricated,
concocted and hence stoutly denied."
"It is submitted by the sole Respondent that the
above allegations are bereft of material facts,
wholly unnecessary, scandalous, frivolous,
vexatious and tend to prejudice the fair trial of
the case, which are nothing but otherwise an
abuse of the process of the Court and as such
the pleadings/allegations made under
paragraph-7(E) of the election petition are liable
to be struck down being hit by Order-VI Rule-16
628
of the C.P.C. on the grounds as described herein
below:
(a) The allegation/pleading as enumerated
under (a) and (b) are bereft of following
material facts:-
(i) Under column 7(B)(ii) of the affidavit filed
in Form 26, though the Respondent has given
the details of land particulars such as area i.e.
total measurement in sq. ft., whether inherited
property or not, date of purchase, cost of land at
the time of purchase and investment made
therein by way of development, construction
etc., approximate current market value with
respect to such land, the same have not been
disclosed/pleaded in the election petition except
pointing out the typographical error occurs in
the name of the mouza typed as "Patpur" in
place of "Patapur";
(ii) Though there is absolutely no confusion
likely to arise to understand that the mouza
"Patpur" and mouza "Patapur" is one and the
same mouza in Cuttack district, the same
material fact has been suppressed by the
Election Petitioner deliberately;
(iii) There is no pleading that on account of
mentioning the name of the mouza "Patpur" in
629
place of "Patapur", as to why and how the result
of the election, in so far as it concerns the
returned candidate, has been materially
affected;
(b) The allegation/pleading as enumerated
under (c) above is bereft of following material
facts:-
(i) Though the Election Petitioner has pleaded
that the R.O.R downloaded from the official
website i.e. bhulekh in respect of the Khata
No.799 of Mouza Unit-13, Chandini Chowk, he
has not filed the said downloaded R.O.R. along
with the election petition in utter violation of the
provisions contained in sub-section (2) of
Section 83 of the R.P. Act, 1951 read with
Order-VII Rule-14 of C.P.C., as such the
allegation with respect to Khata No.799 cannot
be entertained and is liable to be struck out;
(ii) Though the Respondent in his affidavit filed
in Form 26 has given the details of the land
particulars such as area i.e. measurement in sq.
ft.; whether inherited property or not; date of
purchase; cost of the land at the time of
purchase; investment made therein by way of
development, construction etc.; approximate
current market value, the same have not been
disclosed/pleaded in the election petition. In
630
absence of above material facts in the pleadings,
though the same are very much available on
record i.e. the affidavit in Form 26, the
allegation does not disclose any complete cause
of action and as such the same is liable to be
struck out;
(iii) Though the Election Petitioner has alleged
that there is no plot no.221 in khata no.799 at
mouza Unit-13, Chandini Chowk, he has not
mentioned/disclosed the correct khata no. under
which plot no.221 comes inasmuch as the name
of the district under which the above said
mouza, khata, plot comes has not been
disclosed;
(iv) There absolutely no pleading made by the
election petitioner to the effect that on account
of such absence of plot no.221 in khata no.799
as alleged, as to why and how the result of the
election, in so far as it concerns the returned
candidate, has been materially affected."
Mr. Mishra, learned counsel for the Respondent
argued that on account of absence of above material facts in the
pleadings of the election petition, the same does not disclose a
complete cause of action.
In order to substantiate and establish the allegations
made under Paragraph-7(E) of the election petition as well as
631
above four issues, the Election Petitioner has adduced following
documentary evidence:-
Ext.5 i.e. the certified copy of ROR of khata
no.799 mouza Unit No.13 Chandini Chowk.
The following documents have been marked as
exhibits on behalf of the Respondent:-
Ext.M i.e. the downloaded copy of R.O.R.
relating to district Cuttack, mouza Patapur,
khata no.16-D1, plot no.111/1048 recorded in
the name of Firdousia Bano, wife of the
Respondent.
Ext.N i.e. the downloaded copy of R.O.R.
relating to district Cuttack, mouza Patapur,
khata no.15-D1, plot nos.114, 116, 112, 113
recorded in the name of the Respondent.
Ext.P i.e. the downloaded copy of google map
downloaded on 09.02.2023 showing approach
road to village Sandhapur and village
Bidyadharpur via mouza Patapur from Trisulia
square.
Ext.EF i.e. the certified copy of the ROR with
respect to 'Dist: Cuttack Mouza: Patpur, khata
no.15-D1, plot nos.114, 116, 112, 113' which
stands recorded in the name of the Respondent.
632
Ext.EG i.e.the certified copy of the ROR with
respect to 'Dist: Cuttack Mouza: Patpur, khata
no.16-D1, plot no.111/1048' which stands
recorded in the name of Firdousia Bano, the
spouse of the Respondent.
Ext.K i.e. downloaded copy of the R.O.R.
relating to khata no.799, mouza Unit No.13,
Chandini Chowk, downloaded on 28.06.2022,
filed by the Election Petitioner on 29.06.2022.
The Election Petitioner has adduced following oral
evidence with respect to averments made in Paragraph-7(E) of
the election petition as well as above four issues:-
Evidence on affidavit of P.W.1 (Ext.36):-
"That in column (7)(B)(ii), the Respondent has
declared that he is the owner of the non-
agriculture land in Dist. Cuttack, Mouza-Patpur,
khata no.15-DI, plot nos.114, 116, 112, 113. I
state here that at present there is no Mouza
known as Patpur in District of Cuttack so also
the Khata No. and Plot No. described therein are
all false declarations. Further, the area of each
plot has not been declared separately in the
affidavit filed in Form 26. Hence, the
declarations made are all incorrect and false."
"Similarly, the declaration made by the
Respondent that his spouse has a non-
633
agriculture land in Dist.-Cuttack, Mouza: Patpur,
khata no.16-D1, plot no.111/1048 are also
incorrect and false. There is no Mouza known as
Patpur in District of Cuttack, so also the area of
the said Plot No. described therein has not been
disclosed. Hence, the declarations made in the
affidavit are all false and deliberately made by
the Respondent to mislead the voters. The
Respondent has not filed any document to show
that the above Khata No. and Plots belongs to
him and his spouse."
"That the Respondent has further declared that
he is the owner of the mouza Unit-13, Chandini
Chowk, khata no.799, plot no.220 and 221 but
plot no.221 has not been recorded in khata
no.799 as per the certified copy of the R.O.R
filed and marked as Exhibit 5. Further, one Ezad
Ali, S/o- Sayed Irfan Ali is the recorded owner of
the said khata no.799, plot no.220 only.
Similarly, the area of plot no.220 and 221 has
not been declared or described separately by the
Respondent in his affidavit filed in Form 26."
"Similarly, the declaration that the Respondent
is the owner of the property situated in District
Cuttack, Mouza: Unit no.13, Chandini Chowk,
khata no.519, plot no.221/3704 is false. One
Seema Nafees, W/o- Mohammad Atiqur Raub is
the recorded owner of the said Khata no. and
Plot no. I have filed the certified copy of the said
634
ROR marked as Exhibit 6 which discloses that
the Respondent is not the owner of the above
said property."
"This is the certified copy of R.O.R. of khata
no.799 of mouza Unit no.13, Chandni Chowk in
one sheet which is already marked as Ext.5
(with objection). This is the certified copy of
R.O.R. of khata no.519 of mouza Unit no.13,
Chandni Chowk in one sheet which is already
marked as Ext.6 (with objection)."
Cross-examination of P.W.1:-
"According to me, there is no mouza Patapur in
Cuttack district. I am active in politics since
2000 and a member of Treasury Bench from 90-
Barabati-Cuttack Constituency since 2009 to
2019. I know village Bidyadharpur comes under
Cuttack Municipality in Ward No.3, which is part
of 90-Barabati-Cuttack Constituency. In order to
approach the said village Bidyadharpur from
Cuttack town, one has to cross Odisha Judicial
Academy square, Netaji Subash Chandra Bose
Setu and Trisulia square. I cannot say whether
mouza Patapur falls at a distance of 1.5 kms.
away from Trisulia square if one has to go to
village Bidyadharpur."
635
Q. Whether from Google map shown to you, you
are finding mouza Patapur in between Trisulia
square and village Bidyadharpur or not?
Ans. Though it is there in the Google map, but I
have never gone to mouza Patapur nor aware
that there is any such mouza.
"On referring to the affidavit of the Respondent
in Form 26 filed in connection with the
nomination papers marked as Exts.1 to 4 and
Exts.32 to 35, I find that the Respondent has
mentioned under the heading of 'non-
agricultural land' in col. no.7(B)(ii) regarding the
details of the land, its location, area, date of
purchase, cost of land at the time of purchase,
investment made on the land by way of
development, construction etc. and approximate
current market value of his own so also of his
wife Firdousia Bano, but according to me, he has
not given the correct details in this particular
column. According to me, neither in the name of
the Respondent nor in the name of his wife
Firdousia Bano, there is any R.O.R. in respect of
the lands shown under the heading of 'non-
agricultural land' in col. no.7(B)(ii) in mouza
Patpur in the district of Cuttack."
"The copy of the R.O.R. which has been
downloaded by me on 28.06.2022 at 3.44.28
p.m. relating to mozua Unit no.13, Chandini
636
Chowk, khata no.799 indicates that there is only
one plot i.e. 220 under the said khata number.
The downloaded copy of the R.O.R. is marked as
Ext.K. There is no plot number 221 in it. The
certified copy of the R.O.R. in respect of the
aforesaid mozua Unit no.13, Chandini Chowk,
khata no.799 which has been marked as Ext.5
was obtained by me on 07.07.2022. The election
petition was filed by me on 03.07.2019."
Q. Neither the certified copy of the R.O.R.
marked as Ext.5 nor the downloaded copy of the
said R.O.R. marked as Ext.K was available with
you on 03.07.2019 when you filed the election
petition?
Ans. It is correct that neither the certified copy
of the R.O.R. marked as Ext.5 nor the
downloaded copy of the said R.O.R. marked as
Ext.K was available with me on 03.07.2019
when I filed the election petition.
"I have not verified the encumbrance certificate
relating to the R.O.R. in khata no.799 under
mozua Unit no.13, Chandini Chowk (Ext.5 and
Ext.K) before filing of the evidence affidavit."
"This is the downloaded copy of the R.O.R. of
khata no.519, plot no.221/3704, mouza Unit
no.13, Chandini Chowk filed by me, marked as
637
Ext.L, which indicates that it was downloaded on
28.06.2022 at 3.45.26 p.m."
"I have not verified the encumbrance certificate
relating to the R.O.R. in khata no.519, plot
no.221/3704, mouza Unit no.13, Chandini
Chowk (Ext.6 and Ext.L) before filing of the
evidence affidavit."
"The downloaded copy of record of right which is
shown to me today in Court relates to district
Cuttack, Mouza: Patapur, khata no.16-D1, plot
no.111/1048 recorded in the name of Firdousia
Bano, wife of the Respondent and it finds place
in the column no.7(B)(ii) under the heading of
"non-agricultural land" in the affidavit filed by
the Respondent in Form 26 under Exts.1 to 4
and Exts.32 to 35. The downloaded copy of
R.O.R. of khata no.16-D1 is marked as Ext.M
(with objection). The total area of the said land
though mentioned in Ext.M as Ac.0.7300
decimals but the Respondent has shown in his
affidavit in column no.7(B)(ii) as Ac.0.730
decimals."
"The downloaded copy of record of right which is
shown to me today in Court relates to district
Cuttack, Mouza: Patapur, khata no.15-D1, plot
nos.114, 116, 112, 113 to be situated in mouza
Patpur recorded in the name of the Respondent
and it finds place in the column no.7(B)(ii) under
638
the heading of "non-agricultural land" in the
affidavit filed by the Respondent in Form 26
under Exts.1 to 4 and Exts.32 to 35. The
downloaded copy of R.O.R. of khata no.15-D1 is
marked as Ext.N (with objection). The total area
of the said land though mentioned in Ext.N as
Ac.2.1800 decimals but the Respondent has
shown in his affidavit in column no.7(B)(ii) as
Ac.2.180 decimals."
Mr. Mishra, learned counsel argued that the
Respondent was never the Managing Director and/or Director of
M/s. Metro Builders Pvt. Ltd. and there was no connection and/or
relation of the Respondent with M/s. Metro Builders Pvt. Ltd.
Such a submission cannot be accepted inasmuch as the
Respondent has himself admitted that in the capacity as
Managing Director, Metro Builders (Orissa) Pvt. Ltd., he executed
sale deed vide Ext.EZ in his favour so also in favour Peeyush
Dhari Mohanty.
Mr. Mishra, learned counsel argued that as per the
format of the Form 26 affidavit under column 7(B), every
nominated candidate has to furnish "Details of Immovable
assets". Under column 7(B)(iv) as per the format of Form 26
affidavit, the candidate has to furnish information about
"Residential Buildings (including apartment) Locations(s), Survey
639
Number(s)". According to Mr. Mishra, the Respondent has
furnished required information in column 7(B)(iv) such as
location, plot nos., name of the apartment i.e. "City Shelter", flat
nos. owned by him in City Shelter apartment on the ground
floor, 1st floor, 2nd floor and 3rd floor, area i.e. total measurement
in sq.ft., whether inherited property or not, date of purchase,
cost of property at the time of purchase, investment on the land
by way of development, construction, approximate current
market value with respect to his immovable property situated in
the apartment "City Shelter" and these material facts have not
been disclosed by the Election Petitioner in his pleadings. He
further argued that a bare reference to the information furnished
by the respondent with respect to the apartment "City Shelter"
situated at Cuttack Town, Unit No.15 along with its flat nos. and
floor nos. owned by the Respondent and by his spouse will make
it abundantly clear that the required information i.e. "Residential
buildings (including apartment) location; survey number(s)"
have been furnished and there is no concealment of the required
information. There is no pleading in the election petition as to for
which period, the Respondent was the Managing Director of M/s
Metro Builders Pvt. Ltd, when the loan was taken by M/s Metro
Builders Pvt. Ltd. from Odisha Rural Housing Development
640
Corporation, what is the loan account number(s) sanctioning
such huge amounts of loans, what was the amount of loan
outstanding as on the date on M/s Metro Builders Pvt. Ltd.,
whether the Respondent had any personal liability/accountability
with respect to such loans, whether M/s. Metro Builders Pvt. Ltd.
is a separate entity in the eyes of law or not, whether at present
the Respondent has any share and position in M/s. Metro
Builders Pvt. Ltd. or not, whether loans taken by M/s Metro
Builders Pvt. Ltd. have been repaid or not.
Adverting to the contentions raised by the learned
counsel for the parties and after minutely going through the oral
as well as documentary evidence on record, I find that
Respondent has suppressed to disclose the correct khata number
of plot no.221 and falsely disclosed that plot no.221 has been
recorded in khata no.799 in his affidavit in Form 26 (Ext.43).
Similarly, in column 7(B) of the affidavit in Form 26,
every candidate is required to furnish information about 'Details
of immovable assets' of his own, his spouse, his HUF and his
dependents. Under col.7(B)(iv) of the affidavit in Form 26, every
candidate is required to furnish information in a tabular form
about 'Residential Buildings (including apartment), its
locations(s) and survey number(s), area (total measurement in
641
sq. ft.), built-up area (total measurement in sq. ft.), whether
inherited property (Yes or No), date of purchase in case of self-
acquired property, cost of property (in case of purchase at the
time of purchase), any investment on the land by way of
development, construction etc. and approximate current market
value' of his own, his spouse, his HUF and his dependents. While
mentioning the property in col.7(B)(iv) under the heading of
'Residential buildings' (including apartment), the Respondent has
mentioned the flat number to be 'F/5' under 'City Shelter' so far
as his column is concerned and in the column of his spouse, the
said flat number has been mentioned to be '05', on the other
hand, in the sale deed vide Ext.EM/2 under schedule 'B', the flat
number has been reflected to be 'Flat No.05/E' situated in the
ground floor of the multi-storeyed building of the complex in the
name and style of 'City Shelter'. Thus, it is a confusing and
misleading statement given by the Respondent in the affidavit in
Form 26.
In column (11) of Part B of the affidavit, the
Respondent is required to declare the abstract of the details
given in (1) to (10) of Part A and in column (8)(i), he is to
declare the purchase price of self-acquired immovable properties
of himself and his spouse. The Respondent while declaring the
642
purchase price of self-acquired immovable property of his spouse
has declared "NOT APPLICABLE". He has not declared the
purchase price of the self-acquired properties by his spouse. He
has also not declared the development/construction cost of
immovable property after purchase by his spouse. The
Respondent has also not declared in Part B column (8)(iii) about
the approximate current price and the total value of self-acquired
assets by his spouse. The Respondent has also admitted the
same in his examination-in-chief.
The statement of the Respondent that mentioning of
'Not Applicable' inadvertently under the name of my spouse
against the column nos.(8)(B)(I), (8)(B)(II) and (8)(B)(III) of
Part-B of his affidavit in Form 26, does not create any serious
confusion in the minds of the electorate of the Constituency and
the same cannot be said to be suppression of information, is not
acceptable.
In Para 7(B)(ii) sl. no.2 of the affidavit in Form 26
(Ext.43), though the Respondent has declared that his spouse is
the owner of non-agricultural land in the District of Cuttack,
Mouza- Oriya Bazar, Unit no.11, Khata no.41, Plot no.231, but
the certified copy of the R.O.R. of Mouza- Cuttack Town, Unit
no.11, Oriya Bazar, Khata no.41 marked as Ext.12 discloses that
643
the said Khata has been recorded in the name of one Jayanta
Kumar Pattnaik, s/o- Goura Chandra Pattnaik, having Plot
no.444 only and Plot no.231 has not been recorded in the said
Khata no.41.
Declaration has been made in column 7(B)(iii), in the
spouse column, regarding commercial building known as Metro
Plaza-1, Dist: Cuttack, Mouza: Unit no.11, Khata no.126, 155,
Plot nos.1278, 1280 and 1278/1460 and 1280/1461 whereas the
certified copy of the R.O.R. of said Khata no.126 marked as
Ext.13 discloses that Khata no.126, Plot no.1278, 1280 has been
recorded in the name of Iswar Das Agarwal, s/o- Tarachand
Agarwal, Maladevi Agarwal, w/o- Iswar Das Agarwal and not in
the name of spouse of the Respondent.
The statement of the Respondent that he did not feel
it necessary to mention Hal Khata No.180/3, Hal Plot
No.1464/1604, 1460/1605 and Khata No.180/4 in his affidavit in
Form 26 (Ext.43) under the heading of 'commercial building' in
col. no.7(B)(iii) is not at all acceptable.
Though the Respondent in Para 7(B)(iv)(2) of his
affidavit in Form 26 has declared about his ownership at Metro
Satellite City, Mouza-Rudrapur, Khata no.345, Plot no.414, but
the certified copy of R.O.R. of Mouza- Rudrapur, Khata no.345
644
marked as Ext.16 discloses that Plot no.414 has not been
recorded in the said Khata.
Even though according to the Respondent, the
property i.e. Flat No.A108 in the 1st floor of 'Metro Satellite City'
was allotted to him by the Company in lieu of his land given to
the Company for development on sharing basis, in his affidavit
in Form 26 (Ext.43), the Respondent has mentioned that this
property was purchased and the date of purchase was
31.07.2017 and that the cost of the property at the time of
purchase to be Rs.30,69,768/-, which is a false declaration.
The Respondent admits that his company, namely,
M/s. Metro Builders (Orissa) Pvt. Ltd. had taken loans from
ORHDC. It is the case of the Election Petitioner that the
Respondent's company had taken huge amount of loans from
ORHDC when the Respondent himself was the Managing
Director of M/s. Metro Builders (Orissa) Pvt. Ltd. The
Respondent has suppressed to disclose the above facts in the
affidavit filed in Form 26. The finding of the learned trial Court
in the judgment dated 29.09.2022, in which the Respondent
was found guilty, is that the loan in question has been
sanctioned upon the security of the personal guarantee,
indemnity and assurance of the Respondent, of course the same
645
is now the subject matter of Criminal Appeal filed by the
Respondent before this Court and therefore, it would not be
proper on my part to give any finding in that respect.
Though in column (7)(B)(ii), the Respondent has
declared that he is the owner of the non-agricultural land in
Dist.-Cuttack, Mouza- Patpur, Khata No. 15-DI, Plot Nos.114,
116, 112, 113 and further declared that his spouse had a non-
agricultural land in Dist.-Cuttack, Mouza- Patpur, Khata No.16-
D1, Plot No.111/1048, but according to the Election Petitioner,
there is no Mouza known as 'Patpur' in the district of Cuttack so
also the Khata No. and Plot No. described therein. The
downloaded copy of record of right which was shown to the
Election Petitioner by the learned counsel for the Respondent in
Court relates to District Cuttack, Mouza: Patapur, Khata No.16-
D1, Plot no.111/1048 recorded in the name of Firdousia Bano,
wife of the Respondent and it finds place in the column
no.7(B)(ii) under the heading of "non-agricultural land" in the
affidavit filed by the Respondent in Form 26. Similarly, the
downloaded copy of R.O.R. which was shown to the Election
Petitioner by the learned counsel for the Respondent in Court
relates to District Cuttack, Mouza: Patapur, Khata No.15-D1,
Plot Nos.114, 116, 112, 113 to be situated in mouza Patapur
646
recorded in the name of the Respondent and it finds place in the
column no.7(B)(ii) under the heading of "non-agricultural land"
in the affidavit filed by the Respondent in Form 26. Therefore,
on this aspect, the mere typographical error occurred in the
name of the mouza typed as 'Patpur' in place of 'Patapur' cannot
be a ground to hold that either the Respondent has suppressed
anything in his affidavit or mentioned anything falsely or it has
created any confusion.
In view of the foregoing discussions, I am of the
humble view that the Respondent has not disclosed true and
correct details of the properties held by him, his spouse and
dependents in the affidavit filed in Form 26. He has not correctly
disclosed all the movable and immovable assets held by himself
and his spouse in his affidavit in Form 26 dated 03.04.2019. The
Respondent has not declared the purchase price and
development/construction cost of immovable properties of his
spouse in the affidavit filed in Form 26. Of course, mentioning
the name of mouza as 'Patpur' instead of 'Patapur' in Cuttack
district in the affidavit filed by the Respondent in Form 26, in my
humble opinion does not create any confusion at all. Thus, the
issue nos.28, 30 and 32 are answered in favour of the Election
Petitioner and against the Respondent. Issue no.29 is answered
647
in favour of the Respondent and against the Election Petitioner.
In view of the pendency of Criminal Appeal filed by the
Respondent against his conviction before this Court which relates
to loans taken by his company from OHRDC, the issue no.31 is
left unanswered.
14. Issue Nos.18, 33, 34, 35, 36:-
As issue nos.18, 33, 34, 35 and 36 are interlinked
with each other, the same are being discussed and answered
together. The issues are extracted herein below for ready
reference:-
18. Whether the Respondent has filed the
affidavit in the prescribed Form 26 as required
under section 33A of the R.P. Act, 1951 read
with Rule 4A of the Conduct of Election Rules,
1961?
33. Whether the result of the election has been
materially affected insofar as it concerns the
returned candidate/sole Respondent on account
of the allegations made in the Election Petition
or not?
34. Whether the Returning Officer has rightly
and lawfully accepted the nomination of the sole
Respondent or not?
648
35. Whether the sole Respondent has been
declared duly elected as MLA from 90-Barabati
Cuttack Assembly Constituency by securing
lawful valid votes or not?
36. Whether the election of the Respondent
from the 90-Barabati Cuttack Assembly
Constituency is to be declared as void?
In view of my findings in respect of issue nos.1 to 3,
4 to 14, 17 and 21, 22 to 27 and 28, 30 and 32 in favour of the
Election Petitioner, I hold the election petition to be maintainable
in the eyes of law; the Election Petitioner has disclosed sufficient
cause of action to file the election petition; the election petition
is not liable to be dismissed under section 86(1) of the R.P. Act,
1951; the nomination papers filed by the Respondent were not in
the prescribed Form 2B; the Returning Officer has illegally and
improperly accepted the nomination papers of the Respondent
violating the mandate of section 33 of the R.P. Act, 1951 read
with Rule 4 of the 1961 Rules and the instructions issued by the
Election Commission of India in exercise of power under Article
324 of the Constitution of India; the striking/deletion of PART-II
of the nomination in Form 2B by the Respondent in pursuance to
the instruction given in the prescribed nomination Form 2B
renders his nomination liable for rejection; the Respondent has
649
not furnished all the required information in PART-III and PART-
IIIA of nomination Form 2B; the defects as pointed out by the
Election Petitioner regarding deletion of PART-II of nomination
Form 2B as well as with respect to PART-III and PART-IIIA of
nomination Form 2B are substantial defects; PART-III of Form 2B
of the nomination papers filed by the Respondent was not in the
prescribed Form; the column nos.(3) to (9) of PART-IIIA were
not in the prescribed Form 2B; the nomination filed by the
Respondent was not rightly accepted by the Returning Officer as
prescribed under section 36(4) of the R.P. Act, 1951; the
Returning Officer should have rejected the nomination of
Respondent in exercise of power under section 36 of the R.P.
Act, 1951 at the time of scrutiny of the nomination papers; the
Respondent has not made proper and full declaration about the
thirteen criminal cases pending against him in the affidavit filed
in Form 26 and on account of the defects as pointed out by the
Election Petitioner, the result of the election in so far as it
concerns the returned candidate/Respondent has been materially
affected and it cannot be said that the Respondent was duly
elected. Accordingly, issue nos.18, 33, 34, 35 and 36 are also
answered in favour of the Election Petitioner and against the
Respondent.
650
15. Issue nos.37 and 38:-
As issue nos.37 and 38 are interlinked with each
other, the same are being answered together. The issues are
extracted herein below for ready reference:-
37. To what relief the Election Petitioner is
entitled to?
38. Whether the Election Petitioner has made
out a case and is entitled for any reliefs as
sought for in his election petition or not?
In view of my findings in the previous paragraphs,
ELPET No.06 of 2019 is allowed and it is declared that the
election of the Respondent as M.L.A. from the 90-Barabati
Cuttack Assembly Constituency held in April 2019 is void and the
same is hereby set aside. Resultantly, in view of section 151A of
R.P. Act, 1951, a casual vacancy to the said constituency has
occurred.
Before parting, I deem it proper to place on record
my deepest sense of appreciation for the able assistance
rendered by Mr. Milan Kanungo, learned Senior Advocate being
ably assisted by Mr. Gopal Agarwal, learned counsel and Mr.
Bidyadhar Mishra, learned Senior Advocate being ably assisted
by Mr. Tarini Kanta Biswal, all of them whole heartedly devoted
their time and energy in the preparation of the case. The
651
proceeding got delayed on account of COVID-19 pandemic and
then for the disposal of interim application filed by the
Respondent for striking out the pleadings in some paragraphs of
the election petition, with a further prayer to reject the election
petition at the threshold, which was dismissed by me as per
order dated 20.06.2022 which was later confirmed by the
Hon'ble Supreme Court vide order dated 29.07.2022. The issues
were framed on 14.10.2022 and the learned counsel fully
cooperated for early disposal of the case. I express my
gratefulness and indebtedness to the learned counsel from the
bottom of my heart.
Pronounced in the open Court on this 4th Day of
March, 2024.
Place: Cuttack ..............................
Date: 04.03.2024 S. K. Sahoo, J.
List of witnesses examined on behalf of the Election Petitioner P.W.1 Debashish Samantaray P.W.2 Dipankar Acharya P.W.3 Sukanta Kumar Pradhan 652 List of witnesses examined on behalf of the Respondent R.W.1 Mohammed Moquim R.W.2 Santosh Kumar Lenka R.W.3 Prashanta Kumar Mohanty R.W.4 Sourjya Prakash Mohapatra R.W.5 Sofia Firdous List of Exhibits marked on behalf of the Election Petitioner Ext.1 Downloaded copy of nomination paper No.05/LA/2019 dt.02.04.2019 along with the affidavit in Form No.26 dated 03.04.2019, downloaded on 28.06.2022 at 5.11 p.m. Ext.2 Downloaded copy of nomination paper No.02/LA/2019 dt.02.04.2019 along with the affidavit in Form No.26 dated 03.04.2019, downloaded on 28.06.2022 at 5.32 p.m. Ext.3 Downloaded copy of nomination paper No.03/LA/2019 dt.02.04.2019 along with the affidavit in Form No.26 dated 03.04.2019, downloaded on 28.06.2022 at 5.25 p.m. Ext.4 Downloaded copy of nomination paper No.04/LA/2019 dt.02.04.2019 along with the affidavit in Form No.26 dated 03.04.2019, downloaded on 28.06.2022 at 5.19 p.m. Ext.5 Certified copy of R.O.R. of Khata No.799 Mouza Unit No.13 Chandni Chowk 653 Ext.6 Certified copy of R.O.R. of Khata No.519 Mouza Unit No.13 Chandni Chowk Ext.7 Certified copy of R.O.R. of Khata No.04-79 Mouza Cuttack Town Unit No.15 Choudhary Bazar Ext.8 Certified copy of R.O.R. of Khata No.04-80 Mouza Cuttack Town Unit No.15 Choudhary Bazar Ext.9 Certified copy of R.O.R. of Khata No.992 Mouza Cuttack Town Unit No.15 Choudhary Bazar Ext.10 Certified copy of R.O.R. of Khata No.03 Mouza Cuttack Town Unit No.15 Choudhary Bazar Ext.11 Certified copy of R.O.R. of Khata No.01 Mouza Cuttack Town Unit No.15 Choudhary Bazar Ext.12 Certified copy of R.O.R. of Khata No.41 Mouza Cuttack Town Unit No.11 Oriya Bazar Ext.13 Certified copy of R.O.R. of Khata No.126 Mouza Cuttack Town Unit No.11 Oriya Bazar Ext.14 Certified copy of R.O.R. of Khata No.179/193 Mouza Cuttack Town Unit No.12 Sutahat Ext.15 Certified copy of R.O.R. of Khata No.179/232 Mouza Cuttack Town Unit No.12 Sutahat Ext.16 Certified copy of R.O.R. of Khata No.345 of Mouza Rudrapur, District- Khurda Ext.17 Certified copy of F.I.R. No.149 dt.15.09.2018 of Purighat P.S., Cuttack corresponding to G.R. Case No.1722/2018 and the order sheet of G.R. Case No.1722/2018 pending in the Court of S.D.J.M.(S), Cuttack Ext.18 Certified copy of F.I.R. No.150 dt.11.09.2018 of Purighat P.S., Cuttack corresponding to G.R. Case No.1723/2018 along with the final form of G.R. Case 654 No.1723/2018 pending in the Court of S.D.J.M.(S), Cuttack Ext.19 Certified copy of F.I.R. No.75 dt.13.08.2012 of Markat Nagar P.S., Cuttack corresponding to G.R. Case No.1137/2012 and the order sheet of G.R. Case No.1137/2012 pending in the Court of S.D.J.M.(S), Cuttack Ext.20 Certified copy of F.I.R. No.69 dt.17.07.2012 of Markat Nagar P.S., Cuttack corresponding to G.R. Case No.1020/2012 and the order sheet of G.R. Case No.1020/2012 pending in the Court of S.D.J.M.(S), Cuttack Ext.21 Certified copy of F.I.R. No.113/2011 dt.22.09.2011 of Purighat P.S., Cuttack corresponding to G.R. Case No.1168/2011 along with the final form of G.R. Case No.1168/2011 of the Court of S.D.J.M.(S), Cuttack Ext.22 Certified copy of F.I.R. No.231/2010 dt.27.12.2010 of Madhupatna P.S., Cuttack corresponding to G.R. Case No.1568/2010 and the order sheet of G.R. Case No.1568/2010 pending in the Court of S.D.J.M.(S), Cuttack Ext.23 Certified copy of F.I.R. and the order sheet of VGR No.85/2012 pending before Special Judge, Vigilance, Cuttack Ext.24 Certified copy of F.I.R. and the order sheet of VGR No.83/2012 pending before Special Judge, Vigilance, Cuttack Ext.25 Certified copy of F.I.R. and the order sheet of VGR No.84/2012 pending before Special Judge, Vigilance, Cuttack 655 Ext.26 Certified copy of F.I.R. and entire order sheet of VGR No.34/2007 corresponding to T.R. No.16/2010 pending before Special Judge, Vigilance, Cuttack Ext.27 Certified copy of F.I.R. and entire order sheet of G.R. Case No.680/2012 (Balianta P.S. Case No.136 dated 24.09.2012) pending in the Court of J.M.F.C.(O), Bhubaneswar Ext.28 Certified copy of F.I.R. and entire order sheet of F.I.R./V.G.R. Case No.15 of 2011 pending in the Court of Special Judge (Vig.), Bhubaneswar Ext.29 Certified copy of F.I.R. and entire order sheet of F.I.R./V.G.R. Case No.07 of 2005 corresponding to T.R. Case No.01 of 2009 pending in the Court of Special Judge (Vig.), Bhubaneswar Ext.30 Certified copy of F.I.R. and entire order sheet of F.I.R./V.G.R. Case No.34 of 2007 corresponding to T.R. Case No.41 of 2013 pending in the Court of Special Judge (Vig.), Bhubaneswar and charge sheet no.08 dated 03.04.2013 Ext.31 Certified copy of R.O.R. of Khata No.155-D1, Mouza-
Cuttack Town, Unit No.11, Oriya Bazar Ext.32 Downloaded copy of the candidate detail along with the Nomination paper no.02 dated 02.04.2019 filed in Form 2B and the Affidavit in Form 26 of the Respondent along with the Certificate under section 65B of the Indian Evidence Act Ext.33 Downloaded copy of the candidate detail along with the Nomination paper no.03 dated 02.04.2019 filed in Form 2B and the Affidavit in Form 26 of the 656 Respondent along with the Certificate under section 65B of the Indian Evidence Act Ext.34 Downloaded copy of the candidate detail along with the Nomination paper no.04 dated 02.04.2019 filed in Form 2B and the Affidavit in Form 26 of the Respondent along with the Certificate under section 65B of the Indian Evidence Act Ext.35 Downloaded copy of the candidate detail along with the Nomination paper no.05 dated 02.04.2019 filed in Form 2B and the Affidavit in Form 26 of the Respondent along with the Certificate under section 65B of the Indian Evidence Act Ext.32/1 Signatures of P.W.2 on Ext.32 to 32/3 Ext.32/4 Certificate given by P.W.2 under section 65-B of the Indian Evidence Act on Ext.32 Ext.32/5 The relevant document on Ext.32 showing the date of uploading of the affidavit Ext.32/6 Relevant portion showing the date of uploading of the affidavit in Ext.32 Ext.33/1 Signatures of P.W.2 on Ext.33 to 33/3 Ext.33/4 Certificate given by P.W.2 under section 65-B of the Indian Evidence Act on Ext.33 Ext.33/5 The relevant document in Ext.33 showing the date of uploading of the affidavit Ext.33/6 Relevant portion showing the date of uploading of the affidavit in Ext.33 Ext.34/1 Signatures of P.W.2 on Ext.34 657 to 34/3 Ext.34/4 Certificate given by P.W.2 under section 65-B of the Indian Evidence Act on Ext.34 Ext.34/5 The relevant document in Ext.34 showing the date of uploading of the affidavit Ext.34/6 Relevant portion showing the date of uploading of the affidavit in Ext.34 Ext.35/1 Signatures of P.W.2 on Ext.35 to 35/3 Ext.35/4 Certificate given by P.W.2 under section 65-B of the Indian Evidence Act on Ext.35 Ext.35/5 The relevant document in Ext.35 showing the date of uploading of the affidavit Ext.35/6 Relevant portion showing the date of uploading of the affidavit in Ext.35 Ext.36 Evidence affidavit of the Election Petitioner Ext.36/1 Signatures of P.W.1 on Ext.36 To Ext.36/26 Ext.37 Affidavit evidence of Mr. Dipankar Acharya (P.W.2) Ext.37/1 Signatures of P.W.2 on Ext.37 to 37/5 Ext.38 The guidelines by the way of handbook for the Returning Officer issued by the Election Commission of India Ext.38/1 Chapter-5 under the heading of 'Nomination' of the hand book from page nos.69 to 97 Ext.38/2 Clause 5.5 at page 70 of Ext.38 Ext.38/3 Form 2B in Annexure-11 of Ext.38 at page 357 prescribed by the Election Commission of India 658 Ext.39 The original nomination paper bearing No.02/LA/2019 dated 02.04.2019 filed by the Respondent in Form 2B Ext.40 The original nomination paper bearing No.03/LA/2019 dated 02.04.2019 filed by the Respondent in Form 2B Ext.41 The original nomination paper bearing No.04/LA/2019 dated 02.04.2019 filed by the Respondent in Form 2B Ext.42 The original nomination paper bearing No.05/LA/2019 dated 02.04.2019 filed by the Respondent in Form 2B Ext.38/4 Annexure-12 at pages 363 to 378 of Ext.38 Ext.38/5 Clause 5.20.3 of Chapter-5 'Nomination' of Handbook of Returning Officer Ext.43 Affidavit dated 03.04.2019 filed by the Respondent in Form 26 (earlier marked as Y/1) Ext.44 Affidavit dated 03.04.2019 filed by the Respondent in Form 26 (earlier marked as Y/4) Ext.45 Affidavit dated 03.04.2019 filed by the Respondent in Form 26 (earlier marked as Y/7) Ext.46 Affidavit dated 03.04.2019 filed by the Respondent in Form 26 (earlier marked as Y/10) Ext.38/6 Paragraph 5.16.1 of Chapter-5 of Ext.38 Ext.39/1 Plain paper affidavit dated 02.04.2019 filed by the Respondent along with Ext.39 Ext.39/2 Checklist dated 02.04.2019 available along with Ext.39 Ext.39/3 Xerox copy of the checklist dated 02.04.2019 available along with Ext.39 659 Ext.39/4 The portion 'date, time and place', which is available below the 'signature of candidate' in Ext.39/2 Ext.40/1 The plain paper affidavit dated 02.04.2019 of the Respondent filed along with Ext.40 Ext.41/1 The plain paper affidavit dated 02.04.2019 of the Respondent filed along with Ext.41 Ext.41/2 Checklist dated 02.04.2019 available along with Ext.41 Ext.42/1 The plain paper affidavit dated 02.04.2019 of the Respondent filed along with Ext.42 Ext.42/2 Checklist dated 02.04.2019 available along with Ext.42 Ext.32/7 Downloaded and printed copy of Ext.32/5 Ext.32/8 Relevant portion where it is mentioned 'Affidavit Uploaded: 2nd April 2019' Ext.33/7 Downloaded and printed copy of Ext.33/5 Ext.33/8 Relevant portion where it is mentioned 'Affidavit Uploaded: 2nd April 2019' Ext.34/7 Downloaded and printed copy of Ext.34/5 Ext.34/8 Relevant portion where it is mentioned 'Affidavit Uploaded: 2nd April 2019' Ext.35/7 Downloaded and printed copy of Ext.35/5 Ext.35/8 Relevant portion where it is mentioned 'Affidavit Uploaded: 2nd April 2019' Ext.39/5 Downloaded and printed copy of nomination paper Ext.39 Ext.40/3 Date and time and place which are appearing below the signature of candidate in Ext.40/2 Ext.40/4 Downloaded and printed copy of nomination paper Ext.40 660 Ext.41/3 The portion 'date and time and place' are appearing below the signature of candidate in Ext.41/2 Ext.41/4 Downloaded and printed copy of nomination paper Ext.41 Ext.42/3 The portion 'date and time and place' are appearing below the signature of candidate in Ext.42/2 Ext.42/4 Downloaded and printed copy of nomination paper Ext.42 Ext.43/1 Downloaded and printed copy of the affidavit Ext.43 Ext.44/1 Downloaded and printed copy of the affidavit Ext.44 Ext.45/1 Downloaded and printed copy of nomination paper Ext.45 Ext.46/1 Downloaded and printed copy of the affidavit Ext.46 Ext.47 The checklist dated 04.04.2019 Ext.47/1 The relevant portion appearing below 'the signature of candidate' in Ext.47 Ext.48 Certificate of encumbrances of mouza Rudrapur, khata no.345, plot no.414 Ext.49 Certified copy of the judgment dated 29.09.2022 passed in T.R. Case No.1 of 2009 by the learned Special Judge (Vigilance), Bhubaneswar List of Exhibits marked on behalf of the Respondent Ext.A The intimation given to the Respondent Mohammed Moquim in Format C-3 dated 02.04.2019 produced by the District Election Officer, Cuttack dated 21.10.2022.
Ext.B 'Matrubhasa' dated 17.04.2019 produced by the District Election Officer, Cuttack dated 21.10.2022. Ext.B/1 The relevant declaration of Ext.B at page 8 661 Ext.C 'Matrubhasa' dated 18.04.2019 produced by the District Election Officer, Cuttack dated 21.10.2022. Ext.C/1 The relevant declaration of Ext.C at page 3 Ext.D 'The Prajatantra' dated 17.04.2019 produced by the District Election Officer, Cuttack dated 21.10.2022. Ext.D/1 The relevant declaration of Ext.D at page 8 Ext.E Nomination paper of the Election Petitioner vide Sl.
No.06/LA/2019 dated 02.04.2019 produced by the District Election Officer, Cuttack dated 21.10.2022. Ext.E/1 The affidavit in Form 26 dated 02.04.2019 Ext.F Nomination paper of the Election Petitioner vide Sl.
No.07/LA/2019 dated 02.04.2019 produced by the District Election Officer, Cuttack dated 21.10.2022. Ext.F/1 The affidavit in Form 26 dated 02.04.2019 Ext.G Nomination paper of the Election Petitioner vide Sl.
No.08/LA/2019 dated 02.04.2019 produced by the District Election Officer, Cuttack dated 21.10.2022. Ext.G/1 The affidavit in Form 26 dated 02.04.2019 Ext.H Nomination paper of the Election Petitioner vide Sl.
No.09/LA/2019 dated 02.04.2019 produced by the District Election Officer, Cuttack dated 21.10.2022. Ext.H/1 The affidavit in Form 26 dated 02.04.2019 Ext.J The affidavit in Form 26 of the Election Petitioner dated 24.03.2014 Ext.K Downloaded copy of the R.O.R. relating to Khata No.799, mouza Unit No.13- Chandini Chowk filed by the Election Petitioner on 29.06.2022. Ext.L Downloaded copy of the R.O.R. of Khata No.519, Plot No.221/3704, mouza Unit No.13, Chandini Chowk filed by the Election Petitioner on 29.06.2022.
662Ext.M Downloaded copy of R.O.R. relating to district Cuttack, mouza Patapur, Khata No.16-D1, plot no.111/1048 recorded in the name of Firdousia Bano, wife of the Respondent Ext.N Downloaded copy of R.O.R. relating to district Cuttack, mouza Patapur, Khata No.15-D1, Plot Nos.114, 116, 112, 113 recorded in the name of the Respondent Ext.P Downloaded copy of google map downloaded on 09.02.2023 showing the approached road to village Sandhapur and village Bidyadharpur via mouza Patapur from Trisulia square Ext.Q Downloaded copy of R.O.R. pertaining to Khata No.04-79 of Mouza- Cuttack Sahar, Unit No.15, Choudhury Bazar Ext.R Downloaded copy of the R.O.R. pertaining to Khata No.04-80 of Mouza- Cuttack Sahar, Unit No.15, Choudhury Bazar Ext.S Downloaded copy of the R.O.R. pertaining to Khata No.992 of Mouza- Cuttack Sahar, Unit No.15, Choudhury Bazar Ext.E/(1) The certificate of oath of the Election Petitioner Ext.T The certificate for receipt of oath issued by the Returning Officer to the Respondent relating to his taking of oath on 02.04.2019 Ext.U The checklist of documents in connection with filing of nomination with respect to the nomination of the Election Petitioner vide Sl. No.06/LA/2019 (Ext.E) 663 Ext.V The checklist of documents in connection with filing of nomination with respect to the nomination of the Election Petitioner vide Sl. No.07/LA/2019 (Ext.F) Ext.G/2 The checklist of documents in connection with filing of nomination with respect to the nomination of the Election Petitioner vide Sl. No.08/LA/2019 (Ext.G) Ext.H/2 The checklist of documents in connection with filing of nomination with respect to the nomination of the Election Petitioner vide Sl. No.09/LA/2019 (Ext.H) Ext.W Copy of I.A. No.24 of 2020 filed by the Election Petitioner under Rule 10 of Chapter XXXIII of the Rules to regulate proceedings under R.P. Act and Rule 27(a) of Chapter VI of the Orissa High Court Rules Ext.W/1 First page of the first document appended to Ext.W is the 'candidate details' of the Website of the Election Commission of India is downloaded by me on 27.01.2020, which contains the heading 'Candidate details' having photograph of the Respondent Ext.W/2 The third page of the first document which is the downloaded copy of the first page of the affidavit in Form 26 dated 03.04.2019 filed by the Respondent Ext.W/3 First page of the first document appended to Ext.W is the 'candidate details' of the Website of the Election Commission of India is downloaded by me on 27.01.2020, which contains the heading 'Candidate details' having photograph of the Respondent Ext.W/4 The third page of the second document which is the downloaded copy of the first page of the affidavit in Form 26 dated 03.04.2019 filed by the Respondent 664 Ext.W/5 First page of the first document appended to Ext.W is the 'candidate details' of the Website of the Election Commission of India is downloaded by me on 27.01.2020, which contains the heading 'Candidate details' having photograph of the Respondent Ext.W/6 The third page of the third document which is the downloaded copy of the first page of the affidavit in Form 26 dated 03.04.2019 filed by the Respondent Ext.W/7 First page of the first document appended to Ext.W is the 'candidate details' of the Website of the Election Commission of India is downloaded by me on 27.01.2020, which contains the heading 'Candidate details' having photograph of the Respondent Ext.W/8 The third page of the fourth document which is the downloaded copy of the first page of the affidavit in Form 26 dated 03.04.2019 filed by the Respondent Ext.Z I.A. No.23/2022 filed on behalf of the Election Petitioner Ext.W/9 The disclaimer certificate in Ext.W/1 Ext.W/10 The disclaimer certificate in Ext.W/3 Ext.W/11 The disclaimer certificate in Ext.W/5 Ext.W/12 The disclaimer certificate in Ext.W/7 Ext.E/2 Nomination paper of the Election Petitioner in Form 2B under Ext.E Ext.F/2 Nomination paper of the Election Petitioner in Form 2B under Ext.F Ext.G/3 Nomination paper of the Election Petitioner in Form 2B under Ext.G Ext.H/3 Nomination paper of the Election Petitioner in Form 2B under Ext.H 665 Ext.AA Form 4 i.e. list of validly nominated candidates in the election in question prepared and published by the Returning Officer Ext.AB The copy of the election petition served through process of Court by special messenger upon the Respondent along with Court summon and copy of the deposit challan Ext.AB/1 The Court common appended to Ext.AB Ext.AB/2 The copy of deposit challan appended to Ext.AB Ext.AC The copy of the election petition sent by speed post to the Respondent along with Court summon and copy of the deposit challan Ext.AC/1 The Court summon appended to Ext.AC Ext.AC/2 The copy of deposit challan appended to Ext.AC Ext.AD The original election petition available in the Court record Ext.AD/1 The original challan appended to the original election petition in Court record Ext.Y The document submitted on behalf of the Returning Officer of 90-Barabati Cuttack Assembly Constituency by the District Election Officer in Form 2B i.e. the nomination paper of the Respondent bearing No.02/LA/2019 dated 02.04.2019 Ext.Y/1 The affidavit of the Respondent in Form 26 dated 03.04.2019 along with the nomination paper of the Respondent bearing No.02/LA/2019 dated 02.04.2019 Ext.Y/2 The affidavit of the Respondent dated 02.04.2019 Ext.Y/3 The document submitted on behalf of the Returning Officer of 90-Barabati Cuttack Assembly Constituency 666 by the District Election Officer in Form 2B i.e. the nomination paper of the Respondent bearing No.03/LA/2019 dated 02.04.2019 Ext.Y/4 The affidavit of the Respondent in Form 26 dated 03.04.2019 Ext.Y/5 The affidavit of the Respondent dated 02.04.2019 Ext.Y/6 The document submitted on behalf of the Returning Officer of 90-Barabati Cuttack Assembly Constituency by the District Election Officer in Form 2B i.e. the nomination paper of the Respondent bearing No.04/LA/2019 dated 02.04.2019 Ext.Y/7 The affidavit of the Respondent in Form 26 dated 03.04.2019 Ext.Y/8 The affidavit of the Respondent dated 02.04.2019 Ext.Y/9 The document submitted on behalf of the Returning Officer of 90-Barabati Cuttack Assembly Constituency by the District Election Officer in Form 2B i.e. the nomination paper of the Respondent bearing No.05/LA/2019 dated 02.04.2019 Ext.Y/10 The affidavit of the Respondent in Form 26 dated 03.04.2019 Ext.Y/11 The affidavit of the Respondent dated 02.04.2019 Ext.AE Notification dated 28.03.2019 of the Chief Electoral Officer and Ex-officio Principal Secretary to Government, Home (Elections) Department published in Extraordinary Odisha Gazette in Form 1 Ext.AF Public Notice dated 28.03.2019 inviting nominations from the candidates for 90-Barabati Cuttack Assembly Constituency Ext.AF/1 Seal and signature of P.W.3 on Ext.AF 667 Ext.AG Certified copy of Form 3A dated 28.03.2019 Ext.AG/1 Seal and signature of P.W.3 on Ext.AG Ext.AH Certified copy of Form 3A dated 29.03.2019 Ext.AH/1 Seal and signature of P.W.3 on Ext.AH Ext.AJ Certified copy of Form 3A dated 30.03.2019 Ext.AJ/1 Seal and signature of P.W.3 Ext.AK Certified copy of Form 3A dated 02.04.2019 Ext.AK/1 to Ext.AK/4 Seals and signatures of P.W.3 on Ext.AK Ext.AL Certified copy of Form 3A dated 03.04.2019 Ext.AL/1 To Ext.AL/6 Seals and signatures of P.W.3 on Ext.AL Ext.AM Certified copy of Form 3A dated 04.04.2019 Ext.AM/1 To Ext.AM/7 Seals and signatures of P.W.3 on Ext.AM Ext.AN Nomination paper of Jaya Sankar Acharya vide nomination paper Serial No.21/LA/2019 Ext.AN/1 The portion under Part-II of Form 2B where Jaya Sankar Acharya has been proposed by three electors Ext.AN/2 The portion of Part-V of Form 2B in which the nomination paper of Jaya Sankar Acharya vide Serial No.21/LA/2019 has been rejected Ext.AP Nomination paper of Jaya Sankar Acharya vide Serial No.22/LA/2019 Ext.AP/1 The portion under Part-II of Form 2B where Jaya Sankar Acharya has not been proposed by any elector 668 Ext.AP/2 The portion under Part-V of Form 2B in which the nomination paper of Jaya Sankar Acharya vide Serial No.22/LA/2019 has been rejected Ext.AQ Nomination paper of Jaya Sankar Acharya vide Serial No.23/LA/2019 Ext.AQ/1 The portion under Part-II of Form 2B where Jaya Sankar Acharya has not been proposed by any elector Ext.AQ/2 The portion under Part-V of Form 2B in which the nomination paper of Jaya Sankar Acharya vide Serial No.23/LA/2019 has been rejected Ext.AR Nomination paper of Jaya Sankar Acharya vide Serial No.27/LA/2019 Ext.AR/1 The portion under Part-II of Form 2B where Jaya Sankar Acharya has been proposed by ten electors Ext.AR/2 The portion under Part-V of Form 2B where the nomination paper of Jaya Sankar Acharya vide Serial No.27/LA/2019 has been accepted Ext.AS Nomination papers of Mr. Sriram Pandey vide nomination Serial No.24/LA/2019 Ext.AS/1 The portion under Part-II of Form 2B where Mr. Sriram Pandey has been proposed by ten electors Ext.AS/2 The portion under Part-V of Form 2B in which the nomination paper of Mr. Sriram Pandey has been accepted as valid Ext.AS/3 Form 5 in which Mr. Sriram Pandey withdraw his nomination on 08.04.2019 Ext.AT The nomination paper of Mr. Sriram Pandey vide Sl.
No.25/LA/2019 669Ext.AT/1 The portion under Part-II of Form 2B where Mr. Sriram Pandey has been proposed by ten proposers Ext.AT/2 The portion under Part-V in which the nomination paper of Mr. Sriram Pandey has been accepted as valid Ext.AU The nomination paper of Mr. Deepak Kumar Mahanta vide Sl. No.26/LA/2019 Ext.AU/1 The portion under Part-II of Form 2B where Mr. Deepak Kumar Mahanta has been proposed by four proposers Ext.AU/2 The portion under Part-V of Form 2B in which the nomination paper of Mr. Deepak Kumar Mahanta has been rejected Ext.AV Certified copy of Form 7A i.e. "list of contesting candidates" prepared by P.W.3 on 08.04.2019 Ext.AV/1 Signature of P.W.3 in Form 7A Ext.AV/2 Signature of P.W.3 in Form 7A Ext.AV/3 Signature of P.W.3 in Form 7A Ext.AW Decision of the Returning Officer accepting the nomination paper of the Respondent in Part-V of Form 2B vide nomination Sl.No.02/LA/2019 Ext.AW/1 Endorsement, seal, signature and date of P.W.3 on Ext.AW Ext.AX Original money receipt of Rs.10,000/- dated 29.03.2019 granted in favour of the Respondent Mohammed Moquim showing deposit by the Respondent for 90-Barabati-Cuttack Assembly Constituency.
Ext.AY Photo copy of title page of Bank pass book of Federal Bank Ltd. bearing A/c. No.13770100085359 standing 670 in the name of Respondent Mohammed Moquim and Sk. Intekhab Alam.
Ext.AZ Photo-copy of final voter list for the year 2019 of 90- Barabati-Cuttack Assembly Constituency (Part-70) showing the name and photograph of the Respondent at Sl.No.1112 Ext.AZ/1 Relevant portion i.e. Sl. No.1112 in Ext.AZ Ext.BA Original Form 'B' issued by the President, Pradesh Congress Committee, Odisha to P.W.3 intimating the name of the Respondent as approved candidate of the Indian National Congress for 90-Barabati-Cuttack Assembly Constituency Ext.BB Original Form 'A' issued by Mukul Wasnik, General Secretary, Indian National Congress addressed to the Chief Electoral Officer, Odisha and P.W.3 Ext.BC Photocopy of voter identify card of the Respondent Ext.BD Photocopy of the PAN card of the Respondent Ext.BE Photocopy of the Aadhar card of the Respondent Ext.BF Photocopy of the provisional educational certificate of B.E. (Electrical) of the Respondent issued by Utkal University Ext.BG Photocopy of the mark sheet of B.E. (Electrical) of the Respondent issued by Utkal University Ext.BH Photocopy of the certificate of High School Certificate Examination issued by the Board of Secondary Education, Odisha of the Respondent Ext.BJ Original 'form of oath or affirmation' of the Respondent taken on 02.04.2019 at 11.28 a.m. Ext.BJ/1 The signature of the Respondent on Ext.BJ Ext.BJ/2 The seal and signature of P.W.3 on Ext.BJ 671 Ext.T/1 Seal and signature of P.W.3 on Ext.T Ext.BK The original declaration dated 02.04.2019 made by the Respondent while submitting his photograph Ext.BK/1 The portion containing the signature, address, telephone number and date of the Respondent on Ext.BK Ext.BL The duplicate copy of the checklist dated 02.04.2019 handed over to the Respondent, which was received by him on 02.04.2019 at 11.45 a.m. Ext.BL/1 The portion containing the signature, date and seal of P.W.3 on Ext.BL Ext.BL/2 The portion containing the signature, date, time and place of the Respondent on Ext.BL Ext.BM Part VI of Form 2B i.e. the 'receipt of nomination and the notice of scrutiny' granted by P.W.3 on 02.04.2019 in favour of the Respondent with respect to nomination paper Sl.No.02/LA/19 Ext.BM/1 The portion containing the signature, date and seal of P.W.3 appearing on Ext.BM Ext.BN Part VI similar to Ext.BM handed over to the Respondent on 02.04.2019 by P.W.3 Ext.BN/1 The portion containing the signature, date and seal of P.W.3 appearing on Ext.BN Ext.BP Duplicate 'checklist of documents in connection with filing of nominations' dated 04.04.2019 granted by P.W.3 to the Respondent with respect to nomination papers Sl.Nos.02, 03, 04, 05/LA/2019/RO. Ext.BP/1 The signature of the Respondent in Ext.BP 672 Ext.BQ Copy of letter of the Respondent dated 03.04.2019 enclosing therein the revised affidavit dated 03.04.2019 Ext.BQ/1 The portion containing the signature of the Respondent on Ext.BQ Ext.BR Part-V of Form 2B in the 2nd set of nomination papers of the Respondent bearing Sl. No.03/LA/2019 i.e. the decision of the returning officer (P.W.3) accepting the nomination paper of the Respondent. Ext.BR/1 The signature, date and seal along with the endorsement of P.W.3 on Ext.BR.
Ext.BS The photocopy of money receipt for Rs.10,000/-
which is received in cash granted in favour of the Respondent Mohammed Moquim which is dated 29.03.2019 showing that it was issued from Book No.88 of 2019 bearing sl. no.0079343 towards security deposit by the Respondent for 90-Barabati Cuttack Assembly Constituency.
Ext.BT The photocopy of title page of Bank pass book of Federal Bank Ltd. bearing A/c. No.13770100085359 standing in the name of Respondent Mohammed Moquim and Sk. Intekhab Alam.
Ext.BU The photocopy of final voter list for the year 2019 of 90-Barabati-Cuttack Assembly Constituency (Part-
70) wherein at sl.no.1112, the name and photograph of the Respondent appears.
Ext.BU/1 Relevant portion i.e. sl.no.1112 on Ext.BU Ext.BV The Photocopy of Form 'A', which is the 'communication with regard to the authorized persons to intimate name of candidates set up by 673 recognized National party' dated 18.03.2019 of Indian National Congress Ext.BW The photocopy of Form 'B', which is the 'notice as to the name of the candidate set up by the political party' of the Indian National Congress for 90- Barabati-Cuttack Assembly Constituency Ext.BX The photocopy of voter identity card of the Respondent Ext.BY The photocopy of the PAN card of the Respondent bearing PAN No.ACZPM7427Q Ext.BZ The photocopy of the Aadhar card of the Respondent bearing No.455117173167 Ext.CA The photocopy of the provisional educational certificate of the Respondent issued by Utkal University showing that the Respondent has passed B.E. (Electrical) Ext.CB The photocopy of the mark-sheet of B.E. (Electrical) issued by Utkal University issued in favour of the Respondent.
Ext.CC The photo-opy of the certificate of High School Certificate Examination issued by the Board of Secondary Education, Odisha showing that the date of birth of the Respondent is 3rd July 1965 Ext.CD The duplicate of the checklist handed over to the Respondent with respect to his 2nd set of nomination papers bearing sl.no.03/LA/2019.
Ext.CD/1 The portion containing signature, date and seal of P.W.3 on Ext.CD Ext.CD/2 Portion containing the signature of the Respondent on Ext.CD 674 Ext.CE Part-VI of Form 2B i.e 'Receipt for nomination paper and notice of scrutiny' granted by P.W.3 on 02.04.2019 in favour of the Respondent with respect to his nomination sl. no.03/LA/2019. Ext.CE/1 Signature, date and seal of P.W.3 on Ext.CE Ext.CF Original authorization of the Respondent authorizing his daughter Ms. Sofia Firdous to attend the scrutiny of nominations on his behalf on 05.04.2019 at 11.00 a.m. Ext.CG Part-V of Form 2B in the 3rd set of nomination papers of the Respondent bearing sl. no.04/LA/2019 i.e. the decision of the returning officer (P.W.3) accepting the nomination paper of the Respondent. Ext.CG/1 The signature, date and seal along with the endorsement of P.W.3 on Ext.CG.
Ext.CH The photocopy of money receipt for Rs.10,000/-
which is received in cash granted in favour of the Respondent Mohammed Moquim which is dated 29.03.2019 showing that it was issued from Book No.88 of 2019 bearing sl. no.0079343 towards security deposit by the Respondent for 90-Barabati Cuttack Assembly Constituency.
Ext.CJ The photocopy of title page of Bank pass book of Federal Bank Ltd. bearing A/c. No.13770100085359 standing in the name of Respondent Mohammed Moquim and Sk. Intekhab Alam.
Ext.CK The photocopy of final voter list for the year 2019 of 90-Barabati-Cuttack Assembly Constituency (Part-
70) wherein at sl.no.1112, the name and photograph of the Respondent appears.
675Ext.CK/1 Relevant portion i.e. sl.no.1112 on Ext.CK. Ext.CL The photocopy of Form 'A', which is the 'communication with regard to the authorized persons to intimate name of candidates set up by recognized National party' dated 18.03.2019 of Indian National Congress Ext.CM The photocopy of Form 'B', which is the 'notice as to the name of the candidate set up by the political party' of the Indian National Congress for 90- Barabati-Cuttack Assembly Constituency Ext.CN The photocopy of voter identity card of the Respondent Ext.CP The photo-copy of the PAN card of the Respondent bearing PAN No.ACZPM7427Q Ext.CQ The photocopy of the Aadhar card of the Respondent bearing No.455117173167 Ext.CR The photocopy of the provisional educational certificate of the Respondent issued by Utkal University showing that the Respondent has passed B.E. (Electrical) Ext.CS The photocopy of the mark-sheet of B.E. (Electrical) issued by Utkal University issued in favour of the Respondent.
Ext.CT The photocopy of the certificate of High School Certificate Examination issued by the Board of Secondary Education, Odisha showing that the date of birth of the Respondent is 3rd July 1965 Ext.CU The duplicate of the checklist handed over to the Respondent with respect to his 3rd set of nomination papers bearing sl.no.04/LA/2019.
676Ext.CU/1 The portion containing signature, date and seal of P.W.3 on Ext.CU.
Ext.CU/2 Portion containing the signature of the Respondent with date, time and place on Ext.CU.
Ext.CV Part-VI of Form 2B i.e 'Receipt for nomination paper and notice of scrutiny' granted by P.W.3 on 02.04.2019 in favour of the Respondent with respect to his nomination sl. no.04/LA/2019. Ext.CV/1 Signature, date and seal of P.W.3 on Ext.CV Ext.CW Part-VI of Form 2B i.e 'Receipt for nomination paper and notice of scrutiny' granted by P.W.3 on 02.04.2019 handed over to the Respondent with respect to his nomination sl. no.04/LA/2019. Ext.CW/1 The portion containing the signature, date and seal of P.W.3 on Ext.CW Ext.CX Part-V of Form 2B in the 4th set of nomination papers of the Respondent bearing sl. no.05/LA/2019 i.e. the decision of the returning officer (P.W.3) accepting the nomination paper of the Respondent. Ext.CX/1 The signature, date and seal along with the endorsement of P.W.3 on Ext.CX.
Ext.CY Part-VI of Form 2B i.e 'Receipt for nomination paper and notice of scrutiny' granted by P.W.3 on 02.04.2019 in favour of the Respondent with respect to his nomination sl. no.05/LA/2019. Ext.CY/1 The signature, date and seal along with the endorsement of P.W.3 on Ext.CY.
Ext.CZ The photocopy of money receipt for Rs.10,000/-
which is received in cash granted in favour of the Respondent Mohammed Moquim which is dated 677 29.03.2019 showing that it was issued from Book No.88 of 2019 bearing sl. no.0079343 towards security deposit by the Respondent for 90-Barabati Cuttack Assembly Constituency.
Ext.DA The photocopy of title page of Bank pass book of Federal Bank Ltd. bearing A/c. No.13770100085359 standing in the name of Respondent Mohammed Moquim and Sk. Intekhab Alam.
Ext.DB The photocopy of final voter list for the year 2019 of 90-Barabati-Cuttack Assembly Constituency (Part-
70) wherein at Sl.No.1112, the name and photograph of the Respondent appears.
Ext.DB/1 Relevant portion i.e. sl.no.1112 on Ext.CK. Ext.DC The photocopy of Form 'A', which is the 'communication with regard to the authorized persons to intimate name of candidates set up by recognized National party' dated 18.03.2019 of Indian National Congress Ext.DD The Photocopy of Form 'B', which is the 'notice as to the name of the candidate set up by the political party' of the Indian National Congress for 90- Barabati-Cuttack Assembly Constituency Ext.DE The photocopy of voter identity card of the Respondent Ext.DF The photocopy of the PAN card of the Respondent bearing PAN No.ACZPM7427Q Ext.DG The photocopy of the Aadhar card of the Respondent bearing No.455117173167 Ext.DH The photocopy of the provisional educational certificate of the Respondent issued by Utkal 678 University showing that the Respondent has passed B.E. (Electrical) Ext.DJ The photo-copy of the mark-sheet of B.E. (Electrical) issued by Utkal University issued in favour of the Respondent.
Ext.DK The photo-copy of the certificate of High School Certificate Examination issued by the Board of Secondary Education, Odisha showing that the date of birth of the Respondent is 3rd July 1965 Ext.DL The duplicate of the checklist handed over to the Respondent with respect to his 4th set of nomination papers bearing Sl.No.05/LA/2019.
Ext.DL/1 The portion containing signature, date and seal of P.W.3 on Ext.DL.
Ext.DL/2 Portion containing the signature of the Respondent with date, time and place on Ext.DL.
Ext.DM Carbon copy of Part VI of Form 2B i.e. 'the receipt for nomination paper and notice of scrutiny' with respect to nomination Sl.No.05/LA/19 of the Respondent Ext.DM/1 Portion containing the signature, date and seal of P.W.3 on Ext.DM Ext.DN Part-VI of Form 2B i.e 'Receipt for nomination paper and notice of scrutiny' granted by P.W.3 on 02.04.2019 handed over to the Respondent with respect to his nomination sl. no.05/LA/2019. Ext.DN/1 Portion containing the signature, date and seal of the P.W.3 on Ext.DN Ext.E/3 Decision of P.W.3 dated 05/04/2019 in Part-V of Form 2B accepting the nomination papers of the Election Petitioner bearing Sl.No.06/LA/2019 679 Ext.E/4 Photocopy of final voter list for the year 2019 of 90- Barabati-Cuttack Assembly Constituency (Part No.180) Ext.E/5 Photocopy of final voter list for the year 2019 of 90- Barabati-Cuttack Assembly Constituency (Part No.107) Ext.E/6 Original Form 'A' dated 30.03.2019 issued by the President, Biju Janata Dal, Odisha to P.W.3 Ext.E/7 Original Form 'B' issued by the President, Biju Janata Dal, Odisha to P.W.3 Ext.E/8 Original money receipt for Rs.10,000/- granted in favour of the Election Petitioner dated 30.03.2019 Ext.E/9 Photocopy of title page of Bank pass book of State Bank of India bearing A/c. No.38362395438 standing in the name of the Election Petitioner Ext.E/10 Letter dated 7th March 2006 issued by Manoj Das Gupta, Registrar, Sri Aurobindo International Centre of Education, Pondicherry Ext.E/11 Photocopies of Income Tax returns of the Election series Petitioner for the Assessment Years 2018-19, 2017- 18, 2016-17, 2015-16 and 2014-15 Ext.E/12 Photocopy of the PAN card of the Election Petitioner Ext.E/13 Photocopy of voter identity card of the Election Petitioner Ext.E/14 Original declaration dated 02.04.2019 made by the Election Petitioner while submitting his photograph Ext.F/3 Decision of P.W.3 dated 05/04/2019 in Part-V of Form 2B accepting the nomination papers of the Election Petitioner bearing Sl. No.07/LA/2019.
680Ext.F/4 Photocopy of final voter list for the year 2019 of 90- Barabati-Cuttack Assembly Constituency (Part No.180) Ext.F/5 Photocopy of final voter list for the year 2019 of 90- Barabati-Cuttack Assembly Constituency (Part No.126) Ext.F/6 Photocopy of Form 'A' dated 30.03.2019 issued by the President, Biju Janata Dal, Odisha to P.W.3. Ext.F/7 Photocopy of Form 'B' issued by the President, Biju Janata Dal, Odisha to P.W.3 Ext.F/8 Photocopy of money receipt for Rs.10,000/- granted in favour of the Election Petitioner dated 30.03.2019 Ext.F/9 Photocopy of title page of Bank pass book of State Bank of India bearing A/c. No.38362395438 standing in the name of the Election Petitioner Ext.F/10 Letter dated 7th March 2006 issued by Manoj Das Gupta, Registrar, Sri Aurobindo International Centre of Education, Pondicherry Ext.F/11 Photocopies of Income Tax returns of the Election series Petitioner for the Assessment Years 2018-19, 2017- 18, 2016-17, 2015-16 and 2014-15 Ext.F/12 Photocopy of the PAN card of the Election Petitioner Ext.F/13 Photocopy of voter identity card of the Election Petitioner Ext.G/4 Decision of P.W.3 dated 05/04/2019 in Part-V of Form 2B accepting the nomination papers of the Election Petitioner bearing Sl.No.08/LA/2019. Ext.G/5 Photocopy of final voter list for the year 2019 of 90- Barabati-Cuttack Assembly Constituency (Part No.180) 681 Ext.G/6 Photocopy of final voter list for the year 2019 of 90- Barabati-Cuttack Assembly Constituency (Part No.107) Ext.G/7 Photocopy of Form 'A' the intimation dated 30.03.2019 issued by the President, Biju Janata Dal, Odisha to P.W.3 Ext.G/8 Photocopy of Form 'B' issued by the President, Biju Janata Dal, Odisha to P.W.3 Ext.G/9 Photocopy of money receipt for Rs.10,000/- granted in favour of the Election Petitioner dated 30.03.2019 Ext.G/10 Form of oath or affirmation of the Election Petitioner without subscribing oath.
Ext.G/11 Photocopy of title page of Bank pass book of State Bank of India bearing A/c. No. 38362395438 standing in the name of the Election Petitioner Ext.G/12 Letter dated 7th March 2006 issued by Manoj Das Gupta, Registrar, Sri Aurobindo International Centre of Education, Pondicherry Ext.G/13 Photocopies of Income Tax returns of the Election series Petitioner for the Assessment Years 2018-19, 2017- 18, 2016-17, 2015-16 and 2014-15 Ext.G/14 Photocopy of the PAN card of the Election Petitioner Ext.G/15 Photocopy of voter identity card of the Election Petitioner Ext.H/4 Decision of P.W.3 dated 05/04/2019 in Part-V of Form 2B accepting the nomination papers of the Election Petitioner bearing Sl.No.09/LA/2019. Ext.H/5 Photocopy of final voter list for the year 2019 of 90- Barabati-Cuttack Assembly Constituency (Part No.180).
682Ext.H/6 Photocopy of final voter list for the year 2019 of 90- Barabati-Cuttack Assembly Constituency (Part No.44) Ext.H/7 Photocopy of Form 'A' the intimation dated 30.03.2019 issued by the President, Biju Janata Dal, Odisha to P.W.3 Ext.H/8 Photocopy of Form 'B' issued by the President, Biju Janata Dal, Odisha to P.W.3 Ext.H/9 Photocopy of money receipt for Rs.10,000/- granted in favour of the Election Petitioner dated 30.03.2019 Ext.H/10 Photocopy of title page of Bank pass book of State Bank of India bearing A/c. No.38362395438 standing in the name of the Election Petitioner Ext.H/11 Letter dated 7th March 2006 issued by Manoj Das Gupta, Registrar, Sri Aurobindo International Centre of Education, Pondicherry Ext.H/12 Photocopies of Income Tax returns of the Election series Petitioner for the Assessment Years 2018-19, 2017- 18, 2016-17, 2015-16 and 2014-15 Ext.H/13 Photocopy of the PAN card of the Election Petitioner Ext.H/14 Photocopy of voter identity card of the Election Petitioner Ext.DP Nomination paper of the candidate, namely, Priyadarshan Pavel Ext.DP/1 Affidavit in Form 26 dated 29.03.2019 of Priyadarshan Pavel Ext.DP/2 Checklist dated 29.03.2019 Ext.DP/3 Revised affidavit dated 30.03.2019 of Priyadarshan Pavel Ext.DP/4 Checklist dated 04.04.2019 showing receipt of the revised affidavit of Priyadarshan Pavel 683 Ext.DP/5 Decision of the Returning Officer in part V of Form 2B accepting the nomination of Priyadarshan Pavel Ext.DQ Nomination papers of the candidate, namely, Seetal Kinnar Ext.DQ/1 Nomination paper in Form 2B of the candidate, namely, Seetal Kinnar Ext.DR Nomination papers of the candidate, namely, Hemanta Behera Ext.DR/1 Nomination paper in Form 2B of the candidate, namely, Hemanta Behera Ext.DS Nomination papers of the candidate, namely, Biswanath Rout Ext.DS/1 Nomination paper in Form 2B of the candidate, namely, Biswanath Rout Ext.DT Nomination papers of the candidate, namely, Shaikh Muntaqeem Buksh Ext.DT/1 Nomination paper in Form 2B of Shaikh Muntaqeem Buksh Ext.DT/2 Decision of the Returning Officer appearing under Part V of Form 2B in Ext.DT accepting the nomination of Shaikh Muntaqeem Buksh Ext.AR/(i) Nomination paper in Form 2B of the candidate, namely, Jaya Sankar Acharya available in Ext.AR Ext.AS/(i) Nomination paper in Form 2B of Sriram Pandey available in Ext.AS Ext.AT/(i) Nomination papers in Form 2B of Sriram Pandey in Form 2B available in Ext.AT Ext.DU Downloaded and printed copy of the cover page of the Election Commission of India along with the 684 nomination in Form 2B and affidavit in Form 26 of the candidate Priyadarshan Pavel Ext.DU/1 The cover pages of Ext.DU Ext.DU/2 The portion showing the affidavit uploaded on 29th March 2019 in Ext.DU Ext.DU/3 The nomination Form 2B in Ext.DU Ext.DU/4 The revised affidavit in Form 26 dated 30.03.2019 appearing under Ext.DU Ext.DV The final result sheet in Form 20 Ext.DW Affidavit evidence of the Respondent Ext.DW/1 to DW/128 Signatures of the Respondent on the evidence affidavit marked as Ext.AU/3 Checklist available in Ext.AU Ext.DX Register for maintenance for day to day accounts of the election expenditure of the Respondent. Ext.DX/1 Page no.24 of Ext.DX showing entry of advertisement bill of daily newspaper 'Prajatantra' bearing No.2930 dated 17.04.2019 and bill of the newspaper 'Matrubhasa' bearing no.1189 dated 18.04.2019 Ext.DX/2 Page no.26 of Ext.DX showing entry of advertisement bill of daily newspaper 'Matrubhasa' bearing no.1189 dated 18.04.2019.
Ext.DX/3 Page no.32 of Ext.DX showing entry of the advertisement bill of MBC TV bearing bill No.MHV/039/2019-20 dated 23.04.2019 Ext.DY Voucher no.173 i.e. the bill of the news paper The Prajatantra' amounting to Rs.34,951/-
685Ext.DY/1 Voucher no.174 i.e. the bill of the news paper 'Matrubhasa' amounting to Rs.16,544/-. Ext.DY/2 Voucher no.219 i.e. the tax invoice of the channel MBC TV bearing invoice no.MHV/039/2019-20 dated 23.04.2019 amounting to Rs.10,620/- Ext.DY/3 Voucher no.220 i.e. the telecast certificate issued by MBC TV towards declaration of criminal cases pending against the Respondent on 19.04.2019, 20.04.2019 and 21.04.2019 on TV channel Ext.DY/4 Voucher no.221 i.e. part of the telecast certificate issued by MBC TV towards declaration of criminal cases pending against the Respondent on 19.04.2019, 20.04.2019 and 21.04.2019 Ext.DZ Original Form 21E 'return of election' under Rule 64 published on 24.05.2019 by the Returning Officer declaring the Respondent as elected to fill the seat to the Odisha Legislative Assembly from 90-Barabati Cuttack Assembly Constituency.
Ext.EA Form 8 'appointment of election agent' in which the Respondent appointed Mr. Shakil Khan as his election agent Ext.EB Form 8 'appointment of election agent' in which the Respondent appointed Shaikh Intekhab Alam as his additional election agent Ext.EC Certified copy of the intimation given by the Special Judge, Vigilance, Cuttack dated 14.02.2023 regarding transmission of the case records of VGR No.18 of 1991 to the Court of Sonali Zavita, BBSR vide DB No.380 dt.24.04.2019 of the Court of ACJM, Cuttack.
686Ext.ED First Original Bank Passbook of Federal Bank Ltd., Bajrakabati Road Branch, Cuttack bearing Savings Account No.13770100031593 Ext.ED/1 Second Original Bank Passbook of Federal Bank Ltd., Bajrakabati Road Branch, Cuttack bearing Savings Account No.13770100031593 Ext.EE First Original Bank Passbook of State Bank of India, Main Branch, Collectorate Compond, Chandinichowk, Cuttack bearing Savings Account No.10861745745 Ext.EE/1 Second Original Bank Passbook of State Bank of India, Main Branch, Collectorate Compond, Chandinichowk, Cuttack bearing Savings Account No.10861745745 Ext.EF Certified copy of the ROR with respect to 'Dist:
Cuttack Mouza: Patpur, Khata No.15-D1 Plot No.114, 116, 112, 113' which stands recorded in name of the Respondent Ext.EG Certified copy of the ROR with respect to 'Dist:
Cuttack Mouza: Patpur Khata No.16-D1 Plot No.111/1048' which stands recorded in the name of Firdousia Bano, the spouse of the Respondent Ext.EH Certified copy of the registered sale deed bearing No.3458 dated 11.04.2011 with respect to Plot No.220 under Khata No.799 for an area of Ac.0.013 dec out of its total area Ac.0.130 dec and Ac.0.004 dec from Plot No.221 under Khata No.48 out of its total area Ac.0.014 dec, total area purchased Ac.0.017 dec. of Unit-13, Chandinichowk, Cuttack purchased from one Sayed Ijad Ali on 11.04,2011 for a consideration of Rs.6,00,000/- by the Respondent 687 Ext.EJ Certified copy of the registered sale deed No.794/1998 executed by Benudhar Sahoo, Nibarana Sahoo, S/o- Ramachandra Sahoo in favour of Sri Purna Chandra Dutta Ext.EK Certified copy of the registered sale deed No.795/1998 executed, by Benudhar Sahoo, Nibarana Sahoo, S/o- Ramachandra Sahoo in favour of Smt. Basanti Mallick Ext.EL Certified copy of the registered power of attorney bearing No.503/1999 executed by Sri Purna Chandra Dutta and Smt. Basanti Mallick in favour of M/s City Trade Arcade Pvt. Ltd. represented through the Respondent as its Managing Director Ext.EM Certified copy of registered sale deed bearing No.6038 dated 19.06.2007 Ext.EM/1 Certified copy of registered sale deed bearing No.5104 dated 19.06.2007 Ext.EM/2 Certified copy of registered sale deed bearing No.6039 dated 19.06.2007 Ext.EM/3 Certified copy of registered sale deed bearing No.6041 dated 19.06.2007 Ext.EM/4 Certified copy of registered sale deed bearing No.5102 dated 19.06.2007 Ext.EM/5 Certified copy of registered sale deed bearing No.5110 dated 19.06.2007 Ext.EM/6 Certified copy of registered sale deed bearing No.3427 dated 19.06.2007 Ext.EM/7 Certified copy of registered sale deed bearing No.5111 dated 19.06.2007 688 Ext.EM/8 Certified copy of registered sale deed bearing No.6040 dated 19.06.2007 Ext.EM/9 Certified copy of registered sale deed bearing No.5103 dated 19.06.2007 Ext.EM/10 Certified copy of registered sale deed bearing No.3426 dated 19.06.2007 Ext.EM/11 Certified copy of registered sale deed bearing No.5101 dated 19.06.2007 Ext.EN Certified copy of the registered sale deed No.170/2007 executed by the Respondent on 10/01/2007 on behalf of M/s City Trade Arcade Pvt. Ltd., Sri Purna Chandra Dutta and Smt. Basanti Mallick in favour of Sk. Safiur Rahman Ext.EP Certified copy of the registered sale deed No.1663/2012 executed by Sk. Safiur Rahman on 12/03/2012 in favour of Mrs. Firdousia Bano, the spouse of the Respondent Ext.EQ Certified copy of the registered sale deed bearing No.3405/2015 executed by Sima Nafis on 29/08/2015 in favour of the Respondent with respect to 'Dist: Cuttack, Mouza: Unit-13, Chandinichowk, Khata No.519, Plot No.221/3704' area Ac.0.040 dec. for consideration of Rs.20,00,000/- Ext.ER Certified copy of the registered sale deed bearing No.5083/2006 dated 28/09/2006 executed by Smt. Snigdha Mohapatra and Smt. Jayalaxmi Mohapatra through the Respondent being their power of attorney holder vide registered general power of attorney bearing No.192 dated 19.04.1997, in favour of the Respondent and in favour of Sri Peeyush Dhari 689 Mohanty with respect to 'Metro Riverview Complex, Mouza: Cuttack Town Unit-15, Khata No.3 & 1 Plot No.4 & 47 Unit No.OS-01 Ground & 1st Floor' situated in the Commercial Building for consideration of Rs.24,13,650/-
Ext.ES Certified copy of the registered sale deed bearing No.2087/2007 dated 02/05/2007 executed by Smt. Snigdha Mohapatra and Smt. Jayalaxmi Mohapatra through the Respondent being their power of attorney holder vide registered general power of attorney bearing No.192 dated 19.04.1997, in favour of the spouse of the Respondent Mrs. Firdousia Bano, with respect to 'Metro Riverview (Pent House No.l, 6th Floor), Dist: Cuttack Mouza: Unit-15 Cuttack Town, Khata No.3, 1 Plot No.4, 47' situated in the Residential Building for consideration of Rs.11,11,360/-
Ext.ET Certified copy of the registered power of attorney bearing No.192 dated 19.04.1997 executed by Smt. Snigdha Mohapatra and Smt. Jayalaxmi Mohapatra in the favour of the Respondent being the Managing Director of M/s. Metro Builders (Orissa) Pvt. Ltd. Ext.EU Certified copy of the registered Hibanama bearing No.3833 executed by S. Khalilullah on 19/07/1983 in favour of the spouse of the Respondent Mrs. Firdousia Bano, with respect to 'Dist: Cuttack, Mouza: Odia Bazar Unit 11, Khata No.41, Plot No. 231' valued at Rs.10,000/-
Ext.EV Certified copy of the registered power of attorney bearing No.67/1996 executed on 16/02/1996 by 690 Iswar Das Agrawal S/o- Tarachand Agrawal, Mala Debi Agrawal W/o- Iswar Das Agrawal, Bikas Kumar Bharalawala S/o- Ratan Kumar Bharalawala and Suresh Kumar Bharalawala S/o- Rameswarlal Bharalawala with respect to Khata No.155 Plot Nos.1278/1480 and Plot No.1280/1461 total area Ac.0.232 dec and Khata No.126 P|ot Nos.1278 and 1280 total area Ac.0.210 dec situated at Cuttack Town Unit No.11, Odia Bazar, Town/Dist.: Cuttack in favour of the Respondent Ext.EW Certified copy of the second registered power of attorney bearing No.476/2007 executed on 04/05/2007 by Suresh Kumar Bharalawala S/o Rameswarlal Bharalawala for rectification of Plot No.1278/1480 of Khata No.155 (corresponding to new Khata No.180/4) as Plot No.1278/1460 of Khata No.155 (corresponding to new Khata No.180/4) situated at Cuttack Town Unit No.11, Odiabazar, Town/Dist.: Cuttack in favour of the Respondent Ext.EX Certified copy of the registered sale deed bearing No.388/2007 dated 22/01/2007 executed by Iswar Das Agrawal S/o- Tarachand Agrawal, Mala Debi Agrawal W/o- Iswar Das Agrawal, Bikas Kumar Bharalawala S/o- Ratan Kumar Bharalawala and Suresh Kumar Bharalawala S/o- Rameswarlal Bharalawala through the Respondent being their power of attorney holder in favour of the spouse of the Respondent Mrs. Firdousia Bano, with respect to 'Metro Plaza-I, Dist: Cuttack Mouza: Unit-11, Khata No.126, 155 Plot No.1278, 1280 & 1278/1460 & 691 1280/1461 (Shop No. Gd. Floor: 13, 14, 15, 1st Floor: 13, 14, 15 & 16 & 13A, 14A & 15A)' situated in the Commercial Building namely Metro Plaza-I for consideration of Rs.22,51,844/-
Ext.EY Certified copy of the registered power of attorney bearing No.1014/2001 dated 04/12/2001 executed by the legal heirs of Ramachandra Prusty, Laxmidhar Prusty namely Santilata Prusty W/o- Late Laxmidhar Prusty, Srikanta Prusty S/o- Late Laxmidhar Prusty, Sabitri Prusty W/o- Late Rama Chandra Prusty, Mayadhar Prusty S/o Late Rama Chandra Prusty and Bansidhar Prusty S/o- Late Rama Chandra Prusty in favour of the Respondent with respect to the property situated at Mouza Rudrapur in Khordha district Khata No.345 Plot No.414 area Ac.3.13 dec. Ext.EZ Certified copy of the registered sale deed bearing No.11053/2006 dated 31/10/2006 executed by Santilata Prusty W/o- Late Laxmidhar Prusty, Srikanta Prusty S/o- Late Laxmidhar Prusty, Sabitri Prusty W/o- Late Rama Chandra Prusty, Mayadhar Prusty S/o Late Rama Chandra Prusty and Bansidhar Prusty S/o- Late Rama Chandra Prusty through the Respondent being their power of attorney holder in favour of the Respondent and one Peeyush Dhari Mohanty with respect to the property situated at Mouza Rudrapur in Khordha district Khata No.345 Plot No.414 area Ac.3.13 dec. Ext.FA Affidavit evidence of Santosh Kumar Lenka (R.W.2) Exts.FA/1 692 to FA/25 Signatures of Santosh Kumar Lenka appearing at every pages of the evidence affidavit Ext.FB Affidavit evidence of Prashanta Kumar Mohanty (R.W.3) Exts.FB/1 to FB/40 Signatures Prashanta Kumar Mohanty appearing at every pages of the evidence affidavit Ext.FC Affidavit evidence of Sourjya Prakash Mohapatra (R.W.4) Exts.FC/1 to FC/6 Signatures Sourjya Prakash Mohapatra appearing at every pages of the evidence affidavit Ext.FD Evidence on affidavit filed by R.W.5 Sofia Eirdous Exts.FD/1 to FD/16 Signatures of R.W.5 Sofia Eirdous appearing at every pages of the evidence affidavit Ext.FE Certified copy of the order dated 19.10.2022 passed by this Court in I.A. No.1657 of 2022 arising out of CRLA No.880 of 2022 Ext.FF Downloaded copy of the order dated 22.09.2023 passed by the Hon'ble Supreme Court in Special Leave Petition (Criminal) Diary No.(S).35931 of 2023 Ext.FG Certified copy of the order dated 02.08.2023 in W.P.(C) (PIL) No.24052 of 2023 Ext.FG/1 Certified copy of the order dated 18.08.2023 in W.P.(C) (PIL) No.24052 of 2023 Ext.FH News paper publications made in 'Matrubhasha' on 16.04.2019 Ext.FH/1 News paper publications made in 'Matrubhasha' on 17.04.2019 693 Ext.FH/2 News paper publications made in 'Matrubhasha' on 18.04.2019 ..............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 4th March 2024/RKMishra Signature Not Verified Digitally Signed Signed by: RABINDRA KUMAR MISHRA Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Mar-2024 13:15:46