Safiya Malik

The High Court of Orissa Single Bench of Justice Sashikanta Mishra has dismissed an election petition challenging the election of Biju Janata Dal’s (BJD) Sarada Prasad Nayak as MLA from the Rourkela Assembly constituency in the 2024 Assembly Election, while allowing an interim application filed by the returned candidate. The challenge included allegations that an election-duty official posted a Facebook selfie showing an open EVM/VVPAT and was later seen in a closed-room meeting with the returned candidate. The Court held that the allegation could not be sustained in the absence of the relied-upon photographs being annexed to, and served with, the petition, and found the pleadings lacked essential particulars connecting the acts to any legally actionable corrupt practice.

The matter arose from an application filed by the sole respondent in an election petition seeking rejection of the petition at the threshold under Section 86 of the Representation of the People Act, 1951 read with Order VI Rule 16, Order VII Rule 11 and Section 151 of the Code of Civil Procedure. The election petitioner had sought declaration of the respondent’s election from the 12-Rourkela Assembly Constituency as void and for a direction for re-election.

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The challenge was based on two grounds: alleged improper acceptance of nomination due to non-disclosure of pending criminal cases and joint properties in Form-26 affidavit, and alleged corrupt practice by a government official who purportedly posted photographs of an open EVM and VVPAT machine on Facebook and was later seen in a closed-room meeting with the returned candidate. The respondent contended that the petition lacked material facts and particulars, that mandatory affidavit requirements were not complied with, and that copies served were defective and incomplete, violating Section 81(3) of the Act.

The Court examined whether the photographs relied upon formed an integral part of the election petition and whether non-service of such documents rendered the petition defective. It recorded: “When a document forms an integral part of an election petition containing material facts or particulars of corrupt practice, then a copy of the election petition without such a document is not complete and cannot be said to be a true copy of the election petition. Copy of such document must be served on the respondents.”

Upon scrutinizing the pleadings, the Court observed: “the Election Petitioner has not pleaded the complete contents, context, or particulars of the alleged photographs in the body of the Election Petition.” It further stated that “failure to annex and serve the said photographs at the time of presentation of the petition is fatal and cannot be cured by subsequent filing.”

Regarding the pleadings on corrupt practice, the Court recorded that “the election petition does not disclose the official position or capacity in which Ajaya Kumar Pradhan was allegedly deployed on election duty, the authority who authorized such deployment if at all, or the nexus between him and the returned candidate.” It also noted that “the pleadings are conspicuously silent as to the date, time and place where the alleged photographs were taken.”

On the requirement of material facts, the Court quoted: “Failure to plead ‘material facts’ is fatal to the election petition and no amendment of the pleadings is permissible to introduce such material facts after the time-limit prescribed for filing the election petition.” It also recorded: “No amount of evidence can cure basic defect in the pleadings.”

Referring to statutory compliance, the Court observed: “What Section 81(3) enjoins is that a true copy of the election petition has to be served on the respondents including the elected candidate.” It concluded that “Non-furnishing of the photographs amounts to non-compliance with Section 81(3) of the Act, which is fatal as per Section 86(1).”

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The Court directed that “In the result, the IA is allowed. The Election Petition is dismissed. There shall be no order as to costs. Office is directed to communicate the substance of this order to the Election Commission and the Speaker of the State Legislative Assembly at the earliest, so also an authenticated copy of this order to the Election Commission, in terms of Section 103 of the R.P. Act, read with Rule 16 under Chapter-XXXIII of the High Court of Orissa Rules, 1948.”

Advocates Representing the Parties

For the Petitioners: Mr. K.K Mohapatra, S.R. Swain, D. Nayak, M. Deo, B. Das, S. Das, & U.K. Mohapatra, Advocate

For the Respondents: M/s. U K Samal, M.R. Mohapatra, S.P. Patra, N. Samal & A.B. Tarini, Advocates

Case Title: Radheshyam Yadav v. Sarada Prasad Nayak

Case Number: I.A. No. 26 of 2025 (Arising out of ELPET No.14 of 2024)

Bench: Justice Sashikanta Mishra