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IN THE HIGH COURT OF ORISSA AT CUTTACK

ELPET No. 5 of 2024

(An application under Sections 80 to 84, 100 and 117 of the

Representation of the People Act, 1951 read with the Rules

of the High Court of Orissa, 1948)

AFR Brajamohan Pradhan …. Election Petitioner

-Versus-

Aswini Kumar Patra ….. Respondent

Advocate(s) appeared in this case through hybrid mode:

For Election Petitioner : Mr. Manas Mohapatra, Sr. Adv.

with Mr. A.P Bose, S.K.

Mohapatra, S. Swain, S.K.

Routray, D. Sahoo, D.K. Sethy &

S. Satpathy, Advocates

For Respondent : Mr. Bidyadhar Mishra, Sr. Adv.

with Mr. T. Biswal, R.P. Panda,

P. Bharadwaj & B.S. Panigrahi,

Advocates

__________________________________________________________

CORAM:

JUSTICE SASHIKANTA MISHRA

JUDGMENT

22

nd

May, 2026

SASHIKANTA MISHRA, J

This Election Petition is filed by Brajamohan

Pradhan under Sections 80 to 84, 100 and 117 of the

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Representation of the People Act, 1951 (for short, ‘the Act’)

assailing the election of the sole respondent, Aswini Kumar

Patra as Member of the Odisha Legislative Assembly from

35–Jaleswar Assembly Constituency, the result which was

declared on 04.06.2024.

2. The election petitioner seeks a declaration that the

election of the respondent is void and liable to be set aside

and further prays for consequential directions for holding

fresh election/re-poll in respect of the constituency. The

exact relief claimed is reproduced below:

“It is prayed therefore, that this Hon’ble Court may

graciously be pleased to pass the following order:

a) Let the election of Respondent Aswini Kumar Patra

elected Member of Legislative Assembly of 35 Jaleswar

Assembly Constituency of Odisha Legislative Assembly

be declared void and be set aside.

b) Let a declaration be made that casual vacancy has

been caused so far as it relates to 35 Jaleswar

Assembly Constituency.

c) Let direction be issued to the appropriate authority to

conduct the election with respect to the vacancy caused

in respect of 35 Jaleswar Assembly Constituency.

d) Let the nomination paper along with the affidavit in

form 26 and other accompanying documents including

Form no.8 and 18 filed by the Respondent in respect of

35 Jaleswar Assembly Constituency in 2024 General

Election be called from the possession of the Returning

Officer.

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e) For cost.

f) For grant of any other relief/reliefs to which the

election petitioner is entitled to under the provisions of

law.

And for this Act of kindness the petitioners as in duty

bound shall ever pray.”

PLEADINGS

Election Petition

3. The case of the election petitioner, in brief, is that

pursuant to the notification issued by the Election

Commission of India for conduct of General Elections to the

Odisha Legislative Assembly, 2024, election was held in

respect of 35–Jaleswar Assembly Constituency on

01.06.2024. In the election, eight candidates, including the

election petitioner and the respondent, contested. After

completion of the polling process through EVM and postal

ballots, counting of votes was done and the result was

declared on 04.06.2024, whereby the respondent was

declared elected having secured 83,105 votes, whereas the

election petitioner secured 82,786 votes, the margin of

difference being 319 votes.

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It is the case of the election petitioner that the

respondent appointed one Manas Jena as his election agent

and also counting agent. Said Manas Jena, at the relevant

point of time was functioning as the Chairman of Jaleswar

Panchayat Samiti having been elected as such in the

Panchayat Samiti elections held in the year 2022. It is

stated that a person holding the office of Chairman of

Panchayat Samiti is not permitted to act as an election

agent, polling agent or counting agent of a candidate in view

of the instructions, guidelines and handbooks issued by the

Election Commission of India governing the conduct of

elections. Despite such bar, the respondent deliberately

appointed Manas Jena as his election agent and counting

agent and such appointment was illegally accepted by the

Returning Officer.

The election petitioner has further stated that the

appointment of a person holding a public office as election

agent is in violation of law as it amounts to non-compliance

with the provisions of the Act, the Conduct of Election

Rules, 1961 (for short ‘the Rules’) and the guidelines,

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instructions and circulars issued by the Election

Commission of India. It is stated that by reason of such

appointment, the election process stood vitiated and the

result of the election, in so far as it concerns the returned

candidate has been materially affected.

Written Statement

4. The sole respondent, Aswini Kumar Patra on the

other hand, filed written statement stating that the election

petition is devoid of merit and does not disclose any valid

cause of action. It is stated that appointment of Manas Jena

as election agent and counting agent was made in

accordance with the provisions of the Act and there is no

statutory bar under the Act or the Rules prohibiting a

person holding the office of Chairman of a Panchayat Samiti

from being appointed as an election agent or counting

agent. The respondent has denied that the instructions

contained in the Handbooks issued by the Election

Commission of India have any binding force. It is also stated

that Manas Jena was appointed in his individual and

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personal capacity and not in his official capacity as

Chairman of the Panchayat Samiti. The said appointment

was notified to the Returning Officer in the prescribed form

and was accepted without any objection at any stage of the

election process. The election petitioner had full knowledge

of such appointment but did not raise any objection before

the Returning Officer or any competent authority during the

course of the election and is hence, estopped from

challenging the same subsequently

Interlocutory Applications

5. Be it noted that during pendency of the election

petition, the respondent filed two interlocutory applications

being I.A. No. 132 of 2024 and I.A. No. 133 of 2024.

I.A. No. 132 of 2024 was filed under Section 83(1)

of the Act read with Rule 94-A of the Rules and Order VII

Rule 11(d) of CPC seeking dismissal of the election petition

at the threshold on the ground of non-compliance of the

provisions of law. I.A. No. 133 of 2024 was filed under Order

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VI Rule 16 of the CPC for striking out certain pleadings of

the election petition.

Both applications were heard together and

disposed of by this Court by order dated 11.03.2025. This

Court, upon consideration rejected I.A. No. 132 of 2024

holding that the election petition cannot be dismissed at the

threshold as it discloses a cause of action warranting trial.

However, I.A. No. 133 of 2024 was allowed in part, whereby

the pleadings contained in paragraphs 9(D) and 9(F) of the

election petition were struck out on the ground that the

same were vague, lacking in material particulars and did

not satisfy the requirements of Section 83 of the Act. Said

order has since been upheld by the Supreme Court by order

dated 16.07.2025 passed in SLP(C) Nos. 17838-17839 of

2025.

Issues

6. In view of the pleadings of the parties, the

following issues have been framed for consideration.

(I) Whether the Election Petition is maintainable?

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(II) Whether the appointment of sitting chairman of

Jaleswar Panchayat Samiti as Election Agent and

counting agent of the respondent is barred under

Section 40 and 41 of the Representation of the People

Act, 1951?

(III) Whether appointment of Manas Jena Chairman

of Jaleswar block as election agent is permissible or

violates the Handbook supplied to candidate as well

as the Handbook for Returning Officer and therefore

otherwise vitiates the election of the respondent?

(IV) To what other relief (s) the election petitioner is

entitled to?

(V) Whether Manas Jena was appointed as the

Election Agent of the sole respondent in his personal

capacity or in the capacity and/or position of the

Chairman of Jaleswar Panchayat Samiti?

(VI) Whether at the relevant point of time such

appointment of Manas Jena as the Election Agent of

the sole respondent was within the knowledge of the

Election Petitioner and whether despite such specific

knowledge either the Election Petitioner himself or

any of his proposer/authorized agent has/have not

raised any objection to that effect before the

Returning Officer/Election Commission of India during

the entire process of election?

(VII) Whether on account of appointment of Manas

Jena as the Election Agent of sole respondent, the

result of the election insofar as it concerned the

returned candidate (sole Respondent), has been

materially affected and whether the election of the

sole respondent is liable to be declared as void?

Evidence

7. The Election Petitioner examined himself as the

sole witness from his side (PW-1). Four documents, marked

Exhibits-1 to 4 were proved by him. On the other hand, the

respondent examined two witnesses- Manas Jena as RW-1

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and respondent himself as RW-2. Besides, twelve

documents being Exhibits-A to L were proved from his side.

8. Heard Mr. Manas Mohapatra, learned Senior

Counsel with Mr. A.P. Bose, learned counsel appearing for

the election petitioner and Mr. Bidyadhar Mishra, learned

Senior Counsel with Mr. T.K. Biswal, learned counsel for the

respondent.

FINDINGS (ISSUE-WISE)

Issue No.I

“Whether the Election Petition is maintainable?”

9. It is contended by Mr. Bidyadhar Mishra, learned

Senior Counsel appearing for the respondent that the

election petition as laid, is not maintainable for non-

compliance with the mandatory requirement of filing an

affidavit in Form-25 as prescribed under Proviso to Section

83(1) of the Act read with Rule 94-A of the Rules, despite

making allegations of corrupt practice against the

respondent. This, according to Mr. Mishra is an incurable

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defect. He draws attention of this Court to Paragraph

Nos.9(C) and 9(E) of the election petition to submit that the

allegations contained therein fall squarely within the

meaning of ‘undue influence’ as per sub-Section 2 of Section

123 of the Act.

10. He further submits that while hearing I.A.

Nos.132 of 2024 and 133 of 2024, this Court has held that

the pleadings under paragraphs 9(D) and 9(F) of the election

petition relate to allegations of corrupt practice but being

vague, were struck out exercising power under Order VI

Rule 16 of CPC.

11. Per contra, Mr. Manas Mohapatra, learned Senior

Counsel submits that the election petitioner has not alleged

any corrupt practice whatsoever as his entire case is based

on grounds provided under Section 100(1)(d)(i). Since no

corrupt practice has been alleged, the requirement of

specific pleading and filing of affidavit in Form No.25 does

not arise. Mr. Mohapatra further argues that by order dated

11.03.2025 passed in I.A. Nos. 132 of 2024 and 133 of

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2024, this Court held that the pleadings under paragraphs

9(D) and 9(F) of the election petition contain allegations of

corrupt practice within the ambit of Section 123 of the Act.

Though not designated as such but they do not satisfy the

requirement of Section 83. On the above ground, as also on

the ground of non-pleading of material facts, this Court

directed striking out of the pleadings under the aforesaid

two paragraphs. Said order being challenged before the

Supreme Court in SLP(C) Nos.17838-17839 of 2025 was not

interfered with. Therefore, according to Mr. Mohapatra, the

paragraphs containing the allegations of corrupt practice

having been struck out, there is no further requirement of

filing affidavit in Form-25.

12. As already stated, the respondent sought rejection

of the plaint under Order VII Rule 11 of CPC and other

relevant provisions of the Act in I.A. No.132 of 2024 as also

for striking out of the pleadings under Order VI Rule 16 of

CPC in I.A. No.133 of 2024. Rejection of the plaint was inter

alia, sought for on the ground that the election petition does

not disclose a valid cause of action and despite alleging

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corrupt practice, is not accompanied by the required

affidavit in Form-25. As already stated, this Court, in its

detailed common order passed in both the above I.As. held

that the pleadings under paragraphs 9(D) and 9(F)

constitute corrupt practice and are otherwise vague and do

not state the material facts necessary to constitute a valid

cause of action. It is now contended by the respondent that

paragraphs 9(C) and 9(E) also contain allegations of corrupt

practice and therefore, non-filing of Form-25 renders the

election petition non-maintainable. For immediate reference

paragraphs 9(C) and 9 (E) of the election petition are

reproduced below:

“9 (C) That the provisions under Section 40 and 41 of

the Representation of the People Act, 1951 deals with

the appointment of election agent and disqualification

of election agent. For better appreciation of the fact,

the provisions under Section 40 and 41 of the

Representation of the People Act, 1951 are quoted

hereunder:

“40. Election agents - A candidate at an election

may appoint in the prescribed manner any one person

other than himself to be his election agent and when

any such appointment is made, notice of the

appointment shall be given in the prescribed manner

to the returning officer.

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41. Disqualification for being an election agent -

Any person who is for the time being disqualified

under the Constitution or under this Act for being a

member of either House of parliament or the House or

either House of the Legislature of a State or for voting

at elections, shall, so long as the disqualification

subsists, also be disqualified for being an election

agent at any election.

In exercise of the power conferred under Article 324 of

the Constitution of India and several judgments

passed by the Hon’ble High Courts and Hon’ble

Supreme Court of India the Election Commission of

India has issued the guidelines and circulars and the

same has got the effect of law. As per the circulars

the Chairman of the Panchayat will not be allowed to

act as Election Agent, Polling Agent or Counting

Agent.

Chapter -6 of the Hand Book for candidate 2023

issued by the Election Commission of India

elaborately stated about appointment of election

agents. The relevant provisions are contained in

clauses 6.1.1 and 6.1.2 of the Chapter 6 and the

same are quoted here under:

6.1.1. A candidate may appoint any person to be

his/her election agent. Note that under the law, it is

not necessary or incumbent on a candidate to appoint

an election agent at the time of filing of his nomination

paper. Such appointment may, if the candidate so

desires, be made at any time after the nomination as

a candidate or not at all. Every such appointment has

to be made by a formal communication by the

candidate in Form 8 (under Rule 12 of the Conduct of

Election Rules, 1961) (Annexure -7) in duplicate,

which has to be submitted to Returning Officer. The

Returning Officer will retain one copy thereof and

return the second copy to the candidate/ election

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agent after affixing thereon his seal and signature in

token of his approval of the appointment.

6.1.2 Important points to note:

> Any person who currently stands disqualified under

the Constitution or under the Representation of the

People Act, 1951, for being a member of either House

of Parliament or either House of the Legislature of a

State or for voting at elections is disqualified for being

election agent so long as the disqualification subsists.

> No person with security cover can be allowed to

surrender the security cover to enable him to become

an election agent.

> No sitting Minister either of Union Government or of

a State Government, sitting Member of Parliament,

sitting Member of Legislative Assembly/Legislative

Council, Chief/ Head/ Chairperson of Urban Local

Bodies, viz. Mayor of a Corporation or Chairperson of

Municipality/ Zila Parishad/ Panchayat Union,

Chairperson/ Vice Chairperson of District Level/

Block Level/Mandal Parishad, Panchayat Samiti etc.,

shall be allowed to act as Election agent. Polling

Agent, or counting agent of any candidate during an

election (latest instruction to be referred)

> Chairpersons and members of Central PSUs / State

PSUs, Govt. Bodies / Corporation, Cooperatives.

> Persons receiving any honorarium or aid from

Government or Persons working on part time in any

Govt./Govt. Aided Institutions shall not act as

Election agent.

> Para Medical/Healthcare staff working in Govt./

Govt. Aided institutions, Fair Price shop dealers,

Anganwadi Employees.

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> No person in the service of the Government can act

as an Election agent. This is an offence and under

Section 134-A of the R.P. Act 1951, such appointees

are punishable with imprisonment for a term which

may extend to 3 (three) months, or with fine, or with

both”

In view of the aforesaid provisions of law and the

other provisions contained in the Constitution of India,

the Representation of the People Act, 1951, the

Conduct of Election Rules, 1961 and the guidelines,

instructions and circulars issued by the Election

Commission of India, the appointment of Manas Jena

who is holding the post of Chairman of Jaleswar

Panchayat Samiti from 2022 till date and during the

time of the General Election of 35-Jaleswar Assembly

Constituency is unconstitutional, illegal and in clear

violation of law. A person having disqualification has

been appointed as election agent by the Respondent.

The Respondent in conscious violation of the

mandatory requirement of law has appointed the

Chairman of the Panchayat Samiti as election agent

in order to obtain/ procure the assistance for the

furtherance of the prospects of his election and

therefore the election of the Respondent is liable to be

declared as void.

9(E) That the Election Commission is a constitutional

entity entrusted under Article 324 of the Constitution

of India with Superintendence and control over

conduct of the elections. In order to ensure free and

fair elections and integrity of the electoral process the

Election Commission of India has issued the

guidelines/ circulars / instructions. It is well settled

that the instructions / circulars / guidelines issued by

the Election Commission of India has the effect of law

and the same are to strictly adhered to and any

violation of the same has got dire consequence. When

the Election Commission of India issued the

instructions / circulars / guidelines that no sitting

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Chairperson of the Block shall be allowed to act

Election Agent and counting agent, the appointment of

Manas Jena, the Chairman of Jaleswar Block

(Panchayat Samiti) as Election Agent and Counting

Agent by the Respondent for the general election 2024

in respect of 35-Jaleswar Assembly Constituency

being clear violation of applicable law amounts to

interference with a free, fair and transparent election.

Hence the entire election process has been vitiated

and as such the result of election of the Respondent

be declared as void.”

13. A perusal of the quoted pleadings makes it clear

that, firstly, the contention now raised is hit by the

principles of constructive res-judicata as well as res-judicata

inasmuch as the respondent never raised such contention

specifically referring to these paragraphs in his application

seeking rejection of the plaint. Even otherwise, if such

application seeking rejection of the plaint is considered as

an objection to the pleadings as a whole, then also, this

Court having already rendered its decision on the point, re-

agitation of the matter would be hit by the principle of res-

judicata.

14. This Court, after careful examination of the

pleadings held that only the pleadings contained in

paragraphs 9(D) and 9(F) contained allegations of corrupt

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practice and were struck out. Said order has since become

final with the Supreme Court refusing to interfere with it.

15. This Court therefore, holds that the election

petition having raised a valid cause of action and triable

issues that have been framed, is maintainable in the eye of

law.

16. Issue No.I is answered accordingly in favour of

the election petitioner.

17. Before deciding into the pivotal issues, namely

Issue Nos. II, III and VII, it would be proper to decide Issue

Nos.V and VI at this stage.

Issue Nos. V & VI

“(V) Whether Manas Jena was appointed as the

Election Agent of the sole respondent in his personal

capacity or in the capacity and/or position of the

Chairman of Jaleswar Panchayat Samiti?

(VI) Whether at the relevant point of time such

appointment of Manas Jena as the Election Agent of

the sole respondent was within the knowledge of the

Election Petitioner and whether despite such specific

knowledge either the Election Petitioner himself or

any of his proposer/authorized agent has/have not

raised any objection to that effect before the

Returning Officer/Election Commission of India during

the entire process of election?”

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18. Mr. Mohapatra, learned Senior Counsel contends

that the respondent has admitted that Manas Jena (RW-1)

was appointed as Election Agent when he was Chairman of

Jaleswar Panchayat Samiti. He refers to the admission of

RW-1 in his cross-examination under paragraphs 50 and 51

in this regard. He also refers to the admission of the

respondent (RW-2) in paragraphs 61 and 63 of his cross-

examination. As regards the question of knowledge of the

election petitioner regarding appointment of Manas Jena as

election agent of the respondent and raising of objection to

that effect before the authorities, Mr. Mohapatra submits

that the fact of such appointment came to the knowledge of

the election petitioner for the first time only on 1

st June,

2024, which was after acceptance of the nomination papers.

As such, the petitioner had no occasion to submit any

objection regarding appointment of Manas Jena before any

higher authority.

19. Per contra, Mr. Bidyadhar Mishra would submit

that it is not disputed that Manas Jena (RW-1) was serving

as Chairman of Jaleswar Panchayat Samiti at the relevant

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time but he was appointed as election agent of the

respondent purely in his personal capacity. Mr. Mishra has

referred to the document marked Exhibit-2 to substantiate

his contention. Exhibit-2 does not contain any endorsement

whatsoever to the effect that Manas Jena had been

appointed as election agent of the respondent in his

capacity as Chairman of Jaleswar Panchayat Samiti. On the

contrary, the election petitioner has not been able to prove

that such appointment of Manas Jena was in the capacity of

Chairman of Panchayat Samiti.

20. As regards the knowledge of election petitioner

regarding the status of Manas Jena, Mr. Mishra refers to the

pleading in paragraph 9-B of the election petition which

states that according to the petitioner, he came to know

about the position of Manas Jena through information

obtained from the A.B.D.O., Jaleswar Block under the RTI

Act on 28.06.2024, which is after declaration of the result of

the election i.e., on 04.06.2024. Further, the election

petitioner has admitted in his cross-examination in

paragraph-80 that he had not lodged any complaint against

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the appointment of Manas Jena as election agent before any

authority.

21. The first question that arises for consideration is,

whether Manas Jena was appointed as election agent of the

respondent in his individual capacity or as Chairman of

Jaleswar Panchayat Samiti.

22. Appointment of election agent by a candidate in

an election is provided under Section 40 of the Act, which is

reproduced below:

“40. Election agents —A candidate at an election

may appoint in the prescribed manner any one person

other than himself to be his election agent and when

any such appointment is made, notice of the

appointment shall be given in the prescribed manner

to the returning officer.”

23. Thus, the statute provides that the candidate can

appoint any one person other than himself to be his election

agent and notice of such appointment is to be given to the

Returning Officer in the prescribed manner. Rule 12 of the

Rules, which is reproduced below provides that notice of

such appointment is to be made in Form-8.

“12. Appointment of election agent —(1) Any

appointment of an election agent under section 40

shall be made in Form 8 and the notice of such

appointment shall be given by forwarding the same in

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duplicate to the returning officer who shall return one

copy thereof to the election agent after affixing

thereon his seal and signature in token of his

approval of the appointment.

(2) The revocation of the appointment of an election

agent under sub-section (1) of section 42 shall be

made in Form 9.”

24. The respondent has exhibited Form-8 submitted

on 10.05.2024 marked Exhibit-2, which shows that he

appointed Manas Jena as his election agent on that day and

Manas Jena has endorsed his acceptance of such

appointment by signing at the appropriate place. The

Returning Officer has signed and affixed his seal on the

form. There is no mention whatsoever of the status of

Manas Jena as being the Chairman of Jaleswar Panchayat

Samiti in Exhibit-2. No other evidence has been adduced to

show that such appointment of Manas Jena was in his

capacity of Chairman of Jaleswar Panchayat Samiti.

Admittedly, Manas Jena was functioning as the Chairman of

Jaleswar Panchayat Samiti at the time of his appointment

as election agent but merely because he was so functioning,

in the absence of any evidence, it cannot be said that he

was appointed as election agent of the respondent in such

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capacity. Only because a person is functioning in a

particular capacity does not and cannot mean that he is to

be identified in such capacity in all his dealings. Acting as

election agent has absolutely no nexus with the work of the

Chairman of Panchayat Samiti. It is obvious that the

individuality of a person does not get lost, if he functions in

different capacities in his life.

25. Even otherwise, it would lead to an absurd

position of identifying the person only in his official capacity

and not in his individual capacity in all his dealings and

activities in life. Of course, this Court is not required at this

stage to consider whether Manas Jena being the Chairman

of Jaleswar Panchayat Samiti could have been appointed as

election agent in the first place, which is a question to be

decided under Issue No.2, but for the present analysis, it

would suffice to say that his appointment was in his

individual capacity and not in the capacity of the Chairman

of Panchayat Samiti.

26. As regards the knowledge of the election

petitioner regarding appointment of Manas Jena, it is borne

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out from the evidence on record that on 1

st June, 2024, he

came to know about it for the first time. The election

petitioner (PW-1) has stated the following in his cross-

examination under paragraph 54:

“54. I do not remember the date on which Aswini

Kumar Patra appointed Manas Jena as his election

agent. I came to know on 1st June, 2024 for the first

time that Manas Jena had been appointed as election

agent of Aswini Kumar Patra. I came to know about

the above appointment from the polling officer when I

found Manas Jena entering into the polling booth. I do

not remember the number of the said polling booth. I

cannot say if I have mentioned the above fact in the

election petition as well as the evidence affidavit.”

27. He however, admits under para-80 as follows: -

“80. I came to know about the appointment of Manas

Jena as election agent of the respondent for the first

time on the day of polling. I have not lodged any

complaint against the appointment of Manas Jena as

election agent before any authority.”

28. It is therefore, clear that the appointment of

Manas Jena was within the knowledge of the petitioner at

least on 01.06.2024 which was the date of poll. Obviously

by such time, the nominations had already been filed and

accepted.

29. In view of the admission of the election petitioner

as referred above, there is no doubt that he had not raised

any objection before any authority, which was obviously

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because of the fact that there was no scope at that stage to

do so.

30. Thus, Issue Nos.V and VI are answered

accordingly.

Issue Nos. II & III

“II. Whether the appointment of sitting Chairman of

Jaleswar Panchayat Samiti as Election Agent, and

counting agent of the respondent is barred under

Section 40 and 41 of the Representation of the People

Act, 1951?

III. Whether appointment of Manas Jena, Chairman of

Jaleswar Block as election agent is permissible or

violates the Handbook supplied to candidates as well

as the Handbook for Returning Officer and therefore

otherwise vitiates the election of the respondent?

31. This Court, while deciding issue Nos.V and VI has

held that Manas Jena (RW-1) was appointed as Election

agent and Counting agent of the respondent in his

individual capacity leaving open the question to decide as to

whether, being the Chairman of Jaleswar Panchayat Samiti,

he was eligible to be appointed as such.

32. Mr. Manas Mohapatra, learned Senior Counsel

submits that Manas Jena was admittedly appointed as

Election agent and Counting Agent during his incumbency

as Chairman of Panchayat Samiti. Such appointment,

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according to him is, dehors the provisions of the Act making

him disqualified to be so appointed. He cites the provisions

under Sections 40, 41 and 50 of the Act to contend that as

per the language employed in Section 40, it is not

mandatory for a candidate to appoint an election agent. But

if he does, then such appointment has to meet the

requirements of the statute. Referring to Section 41 of the

Act, Mr. Mohapatra submits that a person disqualified by

the existence of one or the other conditions mentioned in

the provision is disqualified for being an election agent.

Since Manas Jena was holding the post of Chairman of

Panchayat Samiti, he is automatically disqualified. To

further justify his contention, Mr. Mohapatra refers to

various provisions of the Odisha Panchayat Samiti Act,

1959, particularly Sections 19 and 52. He also refers to

Rules 3, 4, 5 and 7 of the Odisha Panchayat Samiti

(Administration of Affairs) Rules, 1987. On such basis, he

submits that the Executive Authority of the Samiti vests in

the Chairman and that he is deemed to be a public servant

within the meaning of Section 21 of IPC. Mr. Mohapatra

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draws attention of the Court to Sub-Section (7) of Section

123 of the Act to submit that the Chairman of the Samiti

must be held to be a person in the service of the

Government and therefore, disqualified. He has referred to

the evidence of RW-1 in this regard which shall be adverted

to at the relevant place. Mr. Mohapatra then refers to the

‘Handbook for Candidate- 2023 ’ issued by the Election

Commission of India, particularly to paragraph 6.1.2

thereof, which according to him, specifically bars a

Chairman of Panchayat Samiti from being appointed as

election agent of a candidate. To buttress his contention,

Mr. Mohapatra has cited the following judgments.

• Indira Nehru Gandhi v. Raj Narain

1

,

• Dr. Y.S. Parmar vs. Sh. Hira Singh Paul and

Anr

2

.

33. Per contra Mr. B. Mishra, learned Senior Counsel

submits that the election petitioner has notably failed to

plead and prove as to under which provision was Manas

Jena disqualified to be appointed as election agent. He

refers to Section 41 of the Act to submit that disqualification

1

1975 Supp SCC 1

2

[1959] Supp. 1 SCR 213

Page 27 of 66

relates either to the Constitution of India or for being elected

as a Member of either House of the Parliament or the

Legislature of State. No provision of the Constitution debars

the Chairman of Panchayat Samiti to be appointed as

election agent. In this context, Mr. Mishra has referred to

Articles 84, 101, 102, 103, 173, 190, 191 and 192 of the

Constitution of India. Similarly, there are provisions in the

Act, in this context. He has referred to the provisions under

Sections 3, 4, 5, 6, 7, 8, 8A, 9, 9A, 10, 10A and 11A. On

such basis, Mr. Mishra reiterates that Section 41 of the RP

Act does not apply to Manas Jena.

34. In seeking to refute the arguments of Mr.

Mohapatra with reference to different provisions of Odisha

Panchayat Samiti Act and Rules, Mr. Mishra submits that

Manas Jena is a public representative and not a public

servant. Further, Panchayat Samiti is a local body and does

not come within the definition of Government. Therefore,

Chairman of Panchayat Samiti cannot be treated as a

Government Servant. He does not hold an office of profit nor

comes within the persons named under Sub-Section 7 of

Page 28 of 66

Section 123 of the Act. In response to the arguments made

by Mr. Mohapatra with reference to Handbook for

Candidate, 2023, Mr. Mishra submits that the said

Handbook for Candidate does not have the force of law as

the Supreme Court has held that only the Handbook for

Returning Officers has the force of law. In any case, the

relevant provision under Paragraph 6.1.2. in the Handbook

for Candidate cannot override the law laid down by

Constitution Bench of the Supreme Court. To buttress his

arguments, Mr. Mishra has relied upon the following

judgments.

• Raja Krushna Bose Vs. Binod Kanungo and

Ors.

3

• Satya Dev Bushahri Vs. Padam Dev and Ors.

4

• S. Umrao Singh Vs. Darbara Singh and Ors

5

• S. Umrao Singh Vs. Darbara Singh and Ors

6

.

• Ramlal Vs Vishveshwar Nat

7

• C.M. Stephen Vs Atal Behari Vajpayee

8

• Anokh Singh Vs Punjab State Election

Commission

9

• Kishore Chandra Deo Bhanj Vs Raghunath

Mishra

10

3

AIR 1954 SC 202

4

AIR 1954 SC 587

5

AIR 1968 P&H 450

6

AIR 1969 SC 262

7

AIR 1968 RAJ 249

8

MANU/DE/0304/1980: 18 (1980) DLT 337:

9

(2011) SCC 181

10

AIR 1959 SC 589

Page 29 of 66

35. Before delving into the merits of the rival

contentions it would be apt to mention at the outset that it

is an admitted fact that Manas Jena was the incumbent

Chairman of Jaleswar Panchayat Samiti.

36. In paragraph-4 of his cross-examination, Manas

Jena has himself stated that he was the election agent of

the respondent in the last assembly election (2024). In para-

51 (RW-1) he says as follows:

“51. It is a fact that in Ext -2 it has not been

mentioned that I was the Chairman of Jaleswar

Panchayat Samiti. It is a fact that I was Chairman

on the date Ext-2 was issued. Witness volunteers- I

was appointed as election agent in my personal

capacity.”

37. In paragraph-69 and 84 of the cross

examination, the Election petitioner (PW-1) has stated as

follows:

“69. I cannot say if Manas Jena is disqualified from

contesting in any election. To my knowledge Manas

Jena was a valid voter of 35-Jaleswar Assembly

Constituency and he was not disqualified for voting.

84. It is a fact that to my knowledge Manas Jena was

not disqualified to be elected as member of Legislative

Assembly or either house of the parliament. I cannot

say if Manas Jena was qualified to vote at elections.”

Page 30 of 66

38. We may now refer to some statutory provisions,

namely, Sections- 40 and 41 of the Act.

“40. Election agents —A candidate at an election

may appoint in the prescribed manner any one person

other than himself to be his election agent and when

any such appointment is made, notice of the

appointment shall be given in the prescribed manner

to the returning officer.”

41. Disqualification for being an election agent.

—Any person who is for the time being disqualified

under the Constitution or under this Act for being a

member of either House of Parliament or the House or

either House of the Legislature of a State or for voting

at elections, shall, so long as the disqualification

subsists, also be disqualified for being an election

agent at any election.”

39. Plain reading of the aforesaid provisions makes it

clear that a person who is disqualified either under the

Constitution or under any of the provisions of the Act to be

elected as a Member of Parliament of both houses or the

State Legislature is disqualified to be appointed as election

agent.

40. The election petitioner has not specifically

referred to any provision of the Constitution or the Act in

this context. The respondent has referred to Articles 84,

101, 102, 103, 173, 190, 191 and 192 of the Constitution. It

Page 31 of 66

would be useful to reproduce these provisions for immediate

reference.

“84. Qualification for membership of

Parliament. — A person shall not be qualified to be

chosen to fill a seat in Parliament unless he—

[(a) is a citizen of India, and makes and subscribes

before some person authorised in that behalf by the

Election Commission an oath or affirmation according

to the form set out for the purpose in the Third

Schedule;]

(b) is, in the case of a seat in the Council of States, not

less than thirty years of age and, in the case of a seat

in the House of the People, not less than twenty-five

years of age; and

(c) possesses such other qualifications as may be

prescribed in that behalf by or under any law made

by Parliament.

101. Vacation of seats — (1) No person shall be a

member of both Houses of Parliament and provision

shall be made by Parliament by law for the vacation

by a person who is chosen a member of both Houses

of his seat in one House or the other.

(2) No person shall be a member both of Parliament

and of a House of the Legislature of a State 1 ***, and

if a person is chosen a member both of Parliament

and of a House of the Legislature of 2 expiration of

such period as may be specified in rules [a State],

then, at the made by the President, that person’s seat

in Parliament shall become vacant, unless he has

previously resigned his seat in the Legislature of the

State.

(3) If a member of either House of Parliament—

(a) becomes subject to any of the disqualifications

mentioned in clause (1) or clause (2) of article 102; or

(b) resigns his seat by writing under his hand

addressed to the Chairman or the Speaker, as the

case may be, and his resignation is accepted by the

Chairman or the Speaker, as the case may be, his

seat shall thereupon become vacant:

Page 32 of 66

Provided that in the case of any resignation referred

to in sub-clause (b), if from information received or

otherwise and after making such inquiry as he thinks

fit, the Chairman or the Speaker, as the case may be,

is satisfied that such resignation is not voluntary or

genuine, he shall not accept such resignation.

(4) If for a period of sixty days a member of either

House of Parliament is without permission of the

House absent from all meetings thereof, the House

may declare his seat vacant:

Provided that in computing the said period of

sixty days no account shall be taken of any period

during which the House is prorogued or is adjourned

for more than four consecutive days.

102. Disqualifications for membership —(1) A

person shall be disqualified for being chosen as, and

for being, a member of either House of Parliament—

(a) if he holds any office of profit under the

Government of India or the Government of any State,

other than an office declared by Parliament by law

not to disqualify its holder;]

(b) if he is of unsound mind and stands so declared

by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily

acquired the citizenship of a foreign State, or is under

any acknowledgment of allegiance or adherence to a

foreign State;

(e) if he is so disqualified by or under any law made

by Parliament.

[Explanation.—For the purposes of this clause] a

person shall not be deemed to hold an office of profit

under the Government of India or the Government of

any State by reason only that he is a Minister either

for the Union or for such State.

(2) A person shall be disqualified for being a member

of either House of Parliament if he is so disqualified

under the Tenth Schedule.]

103. Decision on questions as to

disqualifications of members.— (1) If any question

Page 33 of 66

arises as to whether a member of either House of

Parliament has become subject to any of the

disqualifications mentioned in clause (1) of article

102, the question shall be referred for the decision of

the President and his decision shall be final.

(2) Before giving any decision on any such question,

the President shall obtain the opinion of the Election

Commission and shall act according to such opinion.

173. Qualification for membership of the State

Legislature.—A person shall not be qualified to be

chosen to fill a seat in the Legislature of a State

unless he— 2 [(a) is a citizen of India, and makes and

subscribes before some person authorised in that

behalf by the Election Commission an oath or

affirmation according to the form set out for the

purpose in the Third Schedule;

(b) is, in the case of a seat in the Legislative

Assembly, not less than twenty-five years of age and,

in the case of a seat in the Legislative Council, not

less than thirty years of age; and

(c) possesses such other qualifications as may be

prescribed in that behalf by or under any law made

by Parliament.

190. Vacation of seats.—(1) No person shall be a

member of both Houses of the Legislature of a State

and provision shall be made by the Legislature of the

State by law for the vacation by a person who is

chosen a member of both Houses of his seat in one

house or the other.

(2) No person shall be a member of the Legislatures of

two or more States specified in the First Schedule and

if a person is chosen a member of the Legislatures of

two or more such States, then, at the expiration of

such period as may be specified in rules 1 made by

the President, that person's seat in the Legislatures of

all such States shall become vacant, unless he has

previously resigned his seat in the Legislatures of all

but one of the States.

(3) If a member of a House of the Legislature of a

State—

Page 34 of 66

(a) becomes subject to any of the disqualifications

mentioned in 2 [clause (1) or clause (2) of article 191];

or

(b) resigns his seat by writing under his hand

addressed to the speaker or the Chairman, as the

case may be, and his resignation is accepted by the

Speaker or the Chairman, as the case may be,] his

seat shall thereupon become vacant:

[Provided that in the case of any resignation referred

to in sub-clause (b), if from information received or

otherwise and after making such inquiry as he thinks

fit, the Speaker or the Chairman, as the case may be,

is satisfied that such resignation is not voluntary or

genuine, he shall not accept such resignation.

(4) If for a period of sixty days a member of a House

of the Legislature of a State is without permission of

the House absent from all meetings thereof, the

House may declare his seat vacant:

Provided that in computing the said period of sixty

days no account shall be taken of any period during

which the House is prorogued or is adjourned for

more than four consecutive days.

191. Disqualifications for membership . —(1) A

person shall be disqualified for being chosen as, and

for being, a member of the Legislative Assembly or

Legislative Council of a State—

(a) if he holds any office of profit under the

Government of India or the Government of any State

specified in the First Schedule, other than an office

declared by the Legislature of the State by law not to

disqualify its holder;

(b) if he is of unsound mind and stands so declared

by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily

acquired the citizenship of a foreign State, or is under

any acknowledgment of allegiance or adherence to a

foreign State;

(e) if he is so disqualified by or under any law made

by Parliament.

Page 35 of 66

[Explanation.—For the purposes of this clause], a

person shall not be deemed to hold an office of profit

under the Government of India or the Government of

any State specified in the First Schedule by reason

only that he is a Minister either for the Union or for

such State.

(2) A person shall be disqualified for being a member

of the Legislative Assembly or Legislative Council of a

State if he is so disqualified under the Tenth

Schedule.]

192. Decision on questions as to

disqualifications of members. — (1) If any

question arises as to whether a member of a House of

the Legislature of a State has become subject to any

of the disqualifications mentioned in clause (1) of

article 191, the question shall be referred for the

decision of the Governor and his decision shall be

final.

(2) Before giving any decision on any such question,

the Governor shall obtain the opinion of the Election

Commission and shall act according to such opinion.”

41. After perusing the provisions under Articles 101,

102 and 103, this Court finds nothing therein to show that

Manas Jena was disqualified to be a member of either house

of the Parliament. Same conclusion is also drawn after

perusing the provisions under Article 190 and 192 to the

effect that there is nothing to show that Manas Jena was

disqualified for being a member of the State Legislature.

Page 36 of 66

42. The Constitutional Provision being taken care of,

we may now refer to the relevant provisions of the Act,

which are reproduced below.

“3. Qualifications for membership of the Council

of States.—A person shall not be qualified to be

chosen as a representative of any State or Union

territory in the Council of States unless he is an

elector for a Parliamentary constituency in India.

4. Qualifications for membership of the House of

the People.—A person shall not be qualified to be

chosen to fill a seat in the House of the People

unless—

(a) in the case of a seal reserved for the Scheduled

Castes in any State, he is a member of any of the

Scheduled Castes, whether of that State or of any

other State, and is an elector for any Parliamentary

constituency;

(b) in the case of a seat reserved for the Scheduled

Tribes in any State (other than those in the

autonomous districts of Assam), he is a member of

any of the Scheduled Tribes, whether of the State or

of any other State (excluding the tribal areas of

Assam), and is an elector for any Parliamentary

constituency;

(c) in the case of a seat reserved for the Scheduled

Tribes in the autonomous districts of Assam, he is a

member of any of those Scheduled Tribes and is an

elector for the Parliamentary constituency in which

such seat is reserved or for any other Parliamentary

constituency comprising any such autonomous

district;

(cc) in the case of the seat reserved for the Scheduled

Tribes in the Union territory of Lakshadweep, he is a

member of any of those Scheduled Tribes and is an

elector for the Parliamentary constituency of that

Union territory;

(ccc) in the case of the seat allotted to the State of

Sikkim, he is an elector for the Parliamentary

constituency for Sikkim;]

(d) in the case of any other seat, he is an elector for

any Parliamentary constituency.

Page 37 of 66

5. Qualifications for membership of a Legislative

Assembly.—A person shall not be qualified to be

chosen to fill a seat in the Legislative Assembly of a

State unless—

(a) in the case of a seat reserved for the Scheduled

Castes or for the Scheduled Tribes of that State, he is

a member of any of those castes or of those tribes, as

the case may be, and is an elector for any Assembly

constituency in that State;

(b) in the case of a seat reserved for an autonomous

district of Assam, he is a member of a 7 [Scheduled

Tribe of any autonomous district] and is an elector for

the Assembly constituency in which such seat or any

other seat is reserved for that district; and

(c) in the case of any other seat, he is an elector for

any Assembly constituency in that State:

Provided that for the period referred to in clause (2) of

article 371 A, a person shall not be qualified to be

chosen to fill any seat allocated to the Tuensang

district in the Legislative Assembly of Nagaland

unless he is a member of the regional council referred

to in that article.

6.Qualifications for membership of a Legislative

Council.—(1) A person shall not be qualified to be

chosen to fill a seat in the Legislative Council of a

State to be filled by election unless he is an elector for

any Assembly constituency in that State.

(2) A person shall not be qualified to be chosen to fill a

seat in the Legislative Council of a State to be filled by

nomination by the Governor unless he is ordinarily

resident in the State.

7. Definitions—In this Chapter, —

(a) “appropriate Government” means in relation to any

disqualification for being chosen as or for being a

member of either House of Parliament, the Central

Government, and in relation to any disqualification for

being chosen as or for being a member of the

Legislative Assembly or Legislative Council of a State,

the State Government;

(b) “disqualified” means disqualified for being chosen

as, and for being, a member of either House of

Parliament or of the Legislative Assembly or

Page 38 of 66

Legislative Council of a State 4 [under the provisions

of this Chapter, and on no other ground.

8. Disqualification on conviction for certain

offences.—A person convicted of an offence

punishable under— (a) section 153A (offence of

promoting enmity between different groups on ground

of religion, race, place of birth, residence, language,

etc., and doing acts prejudicial to maintenance of

harmony) or section 171E (offence of bribery) or

section 171F (offence of undue influence or

personation at an election) or sub-section (1) or sub-

section (2) of section 376 or section 376A or section

376B or section 376C or section 376D (offences

relating to rape) or section 498A (offence of cruelty

towards a woman by husband or relative of a

husband) or sub-section (2) or sub-section (3) of

section 505 (offence of making statement creating or

promoting enmity, hatred or ill-will between classes or

offence relating to such statement in any place of

worship or in any assembly engaged in the

performance of religious worship or religious

ceremonies) or the Indian Penal Code (45 of 1860); or

(b) the Protection of Civil Rights Act, 1955 (22 of

1955), which provides for punishment for the

preaching and practice of “untouchability”, and for

the enforcement of any disability arising therefrom; or

(c) section 11 (offence of importing or exporting

prohibited goods) of the Customs Act, 1962 (52 of

1962); or

(d) sections 10 to 12 (offence of being a member of an

association declared unlawful, offence relating to

dealing with funds of an unlawful association or

offence relating to contravention of an order made in

respect of a notified place) of the Unlawful Activities

(Prevention) Act, 1967 (37 of 1967); or

(e) the Foreign Exchange (Regulation) Act, 1973 (46 of

1973); or

(f) the Narcotic Drugs and Psychotropic Substances

Act, 1985 (61 of 1985); or

(g) section 3 (offence of committing terrorist acts) or

section 4 (offence of committing disruptive activities)

of the Terrorist and Disruptive Activities (Prevention)

Act, 1987 (28 of 1987); or

Page 39 of 66

(h) section 7 (offence of contravention of the provisions

of section 3 to 6) of the Religious Institutions

(Prevention of Misuse) Act, 1988 (41 of 1988); or

(i) section 125 (offence of promoting enmity between

classes in connection with the election) or section 135

(offence of removal of ballot papers from polling

stations) or section 135A (offence of booth capturing)

or clause (a) of sub-section (2) of section 136 (offence

of Fraudulently defacing or fraudulently destroying

any nomination paper) of this Act; or

(j) section 6 (offence of conversion of a place or

worship) of the Places of Worship (Special Provisions)

Act 1991; or

(k) section 2 (offence of insulting the Indian National

Flag or the Constitution of India) or section 3 (offence

of preventing singing of National Anthem) of the

Prevention of Insults to National Honour Act, 1971 (69

of 1971);or (l) the Commission of Sati (Prevention) Act,

1987 (3 of 1988); or (m) the Prevention of Corruption

Act, 1988 (49 of 1988); or

(n) the Prevention of Terrorism Act, 2002 (15 of 2002),

shall be disqualified, where the convicted person is

sentenced to—

(i) only fine, for a period of six years from the date of

such conviction;

(ii) imprisonment, from the date of such conviction and

shall continue to be disqualified for a further period of

six years since his release.

(2) A person convicted for the contravention of—

(a) any law providing for the prevention of hoarding or

profiteering; or

(b) any law relating to the adulteration of food or

drugs; or

(c) any provisions of the Dowry Prohibition Act, 6

[1961 (28 of 1961);],

and sentenced to imprisonment for not less than six

months, shall be disqualified from the date of such

conviction and shall continue to be disqualified for a

further period of six years since his release.

(3) A person convicted of any offence and sentenced

to imprisonment for not less than two years [other

than any offence referred to in sub-section (1) or sub-

section (2)] shall be disqualified from the date of such

conviction and shall continue to be disqualified for a

further period of six years since his release.

Page 40 of 66

(4) Notwithstanding anything 2 [in sub-section (1),

sub-section 2 and sub-section (3)] a disqualification

under either sub-section shall not, in the case of a

person who on the date of the conviction is a member

of Parliament or the Legislature of a State, take effect

until three months have elapsed from that date or, if

within that period an appeal or application for

revision is brought in respect of the conviction or the

sentence, until that appeal or application is disposed

of by the court. Explanation.—In this section—

(a) “law providing for the prevention of hoarding or

profiteering” means any law, or any order, rule or

notification having the force of law, providing for—

(i) the regulation of production or manufacture of any

essential commodity;

(ii) the control of price at which any essential

commodity may be brought or sold;

(iii) the regulation of acquisition, possession, storage,

transport, distribution, disposal, use or consumption

of any essential commodity; (iv) the prohibition of the

withholding from sale of any essential commodity

ordinarily kept for sale;

(b) “drug” has the meaning assigned to it in the Drugs

and Cosmetics Act, 1940 (23 of 1940);

(c) “essential commodity” has the meaning assigned

to it in the Essential Commodities Act, 1955 (10 of

1955);

(d) “food” has the meaning assigned to it in the

Prevention of Food Adulteration Act, 1954 (37 of

1954).

8A. Disqualification on ground of corrupt

practices.—(1) The case of every person found guilty

of a corrupt practice by an order under section 99

shall be submitted, 4 [as soon as may be within a

period of three months from the date such order takes

effect], by such authority as the Central Government

may specify in this behalf, to the President for

determination of the question as to whether such

person shall be disqualified and if so, for what period:

Provided that the period for which any person may be

disqualified under this sub-section shall in no case

exceed six years from the date on which the order

made in relation to him under section 99 takes effect.

(2) Any person who stands disqualified under section

8A of this Act as it stood immediately before the

Page 41 of 66

commencement of the Election Laws (Amendment)

Act, 1975 (40 of 1975), may, if the period of such

disqualification has not expired, submit a petition to

the President for the removal of such disqualification

for the unexpired portion of the said period. (3) Before

giving his decision on any question mentioned in sub-

section (1) or on any petition submitted under sub-

section (2), the President shall obtain the opinion of

the Election Commission on such question or petition

and shall act according to such opinion.

9. Disqualification for dismissal for corruption

or disloyalty. — (1) A person who having held an

office under the Government of India or under the

Government of any State has been dismissed for

corruption or for disloyalty to the State shall be

disqualified for a period of five years from the date of

such dismissal. (2) For the purposes of sub-section (1),

a certificate issued by the Election Commission to the

effect that a person having held office under the

Government of India or under the Government of a

State, has or has not been dismissed for corruption or

for disloyalty to the State shall be conclusive proof of

that fact:

Provided that no certificate to the effect that a person

has been dismissed for corruption or for disloyalty to

the State shall be issued unless an opportunity of

being heard has been given to the said person.

9A. Disqualification for Government contracts,

etc.—A person shall be disqualified if, and for so long

as, there subsists a contract entered into by him in

the course of his trade or business with the

appropriate Government for the supply of goods to, or

for the execution of any works undertaken by that

Government.

Explanation. —For the purposes of this section, where

a contract has been fully performed by the person by

whom it has been entered into with the appropriate

Government, the contract shall be deemed not to

subsist by reason only of the fact that the

Government has not performed its part of the contract

either wholly or in part.

10. Disqualification for office under Government

company. —A person shall be disqualified if, and for

Page 42 of 66

so long as, he is a managing agent, manager or

secretary of any company or corporation (other than a

co-operative society) in the capital of which the

appropriate Government has not less than twenty-five

per cent. share.

10A. Disqualification for failure to lodge

account of election expenses . —If the Election

Commission is satisfied that a person—

(a) has failed to lodge an account of election

expenses, within the time and in the manner required

by or under this Act; and

(b) has no good reason or justification for the failure,

the Election Commission shall, by order published in

the Official Gazette, declare him to be disqualified

and any such person shall be disqualified for a period

of three years from the date of the order.

11A. Disqualification arising out of conviction

and corrupt practices.—(1) If any person, after the

commencement of this Act,— is convicted of an

offence punishable under section 171E or section

171F of the Indian Penal Code (45 of 1860), or under

section 125 or section 135 or clause (a) of sub-section

(2) of section 136 of this Act, he shall, for a period of

six years from the date of the conviction or from the

date on which the order takes effect, be disqualified

for voting at any election.

(2) Any person disqualified by a decision of the

President under sub-section (1) of section 8A for any

period shall be disqualified for the same period for

voting at any election.

(3) The decision of the President on a petition

submitted by any person under sub-section (2) of

section 8A in respect of any disqualification for being

chosen as, and for being, a member of either House of

Parliament or of the Legislative Assembly or

Legislative Council of a State shall, so for as may be,

apply in respect of the disqualification for voting at

any election incurred by him under clause (b) of sub-

section (1) of section 11A of this Act as it stood

immediately before the commencement of the Election

Laws (Amendment) Act, 1975 (40 of 1975), as if such

decision were a decision in respect of the said

disqualification for voting also.”

Page 43 of 66

43. All these provisions are to be found in Chapters-

III and IV of Part-II of the Act. Section 7(b) provides that the

term ‘disqualified’ means disqualified under the provisions

of this Chapter and on no other ground. The grounds for

disqualification have been provided under Section 8, 8A, 9,

9A, 10, 10A and 11A of chapters- III & IV. It has not been

demonstrated in the least as to under which provision

Manas Jena must be held to be disqualified to be a member

of either House of Parliament or State legislature.

44. It has been argued that notwithstanding the

provision under Section 41 of the RP Act, Manas Jena being

a public servant within the meaning of Section 21 of IPC

must be held to be in the service of Government and

therefore, is governed by the provision under Sub-Section 7

of Section 123 of the Act. Before proceeding to determine the

applicability of the provision under Section 123(7) of the Act

it would be profitable to first refer to different provisions of

Odisha Panchayat Samiti Act, 1959 forming the basis for

raising such contention. It has been argued that Section 19

of the Act provides that the executive authority of the Samiti

Page 44 of 66

shall vest in the Chairman. Section 20 lays down the power

and functions of Samiti and Section 20A lays down the

powers and functions of the Chairman of the Samiti. These

provisions are reproduced below:

“19. (1) The executive authority of the Samiti shall

vest in the Chairman and it shall be his duty to have

the resolution of the Samiti implemented through the

Executive Officer of the Samiti.

(2) The Block Development Officer shall be the

Executive Officer of the Samiti and subject to such

rules as may be prescribed in this behalf, shall

function under the control of the Chairman of the

Samiti.

(3) The Executive Officer of the Samiti shall exercise

such other powers and perform such other functions

as may be prescribed].

20. (1) A Samiti shall, subject to such terms and

conditions, as Government may, from time to time by

order specify, exercise the powers and perform the

functions hereinafter provided-

(a) planning, execution and supervision of

development programmes, scheme and works in the

Block relating to Community Development including

those pertaining to "Tribal Development Blocks" for

the time being recognised by Government as such and

of such other programmes, schemes and works as

Government may from time to time by general or

special order, direct in respect of any Samiti; [(a-1)

preparation of plans for economic development and

social justice; (a-ii) implementation of schemes for

economic development and social justice and

execution of any other scheme, performance of any

act or management of any institution or organisation,

as the Government may entrust to it including those

in relation to matters listed in the Eleventh Schedule

to the Constitution of India;.

(b) management, control and spread of primary

education in the Block;

Page 45 of 66

(c) management of such trusts and endowments and

other institutions as may be entrusted to them under

any law for the time being in force or under orders of

Government;

(d) supervision of enforcement of laws relating to

vaccination and registration of births and deaths;

(e) borrowing of money and granting of loans subject

to such terms and conditions as may be prescribed

for carrying out the purposes of this Act with the

previous approval of Government;

(f) supervisory powers over the Grama Panchayats

within the Block to be exercised in such manner and

to such extent as may be prescribed; and

(g) such other functions as may be assigned to it by

the Government from time to time:

Provided that the powers and functions of the Samiti

in relations to Primary Education as specified in

clause (b) shall not include the powers and functions

in respect of appointment, removal and transfer of

and in respect of sanction of leave to the teacher and

other members of the staff engaged in Primary

Education.

(2) The Chairman and every other non-official member

of a Samiti shall, subject to such restrictions as may

be prescribed, have power to supervise all works

undertaken by the Samiti and all institutions under

the control of the Samiti.

(3) The Samiti may entrust the execution of any work

in any Municipal Area within the Block to the

concerned Municipality [*] and may exercise such

control and supervision over such Municipality [**] as

may be necessary for the proper execution thereof.

(4) For the efficient discharge of its functions the

Samiti shall constitute Standing Committees whose

numbers, composition, powers and functions shall be

as may be prescribed:

Provided that the Samiti shall have power to co-opt

such number of persons from outside as may be

specified in rules made in that behalf.]

(5) Notwithstanding anything to the contrary in this

Act, in the Scheduled Area, the Samiti shall, in

consultation with the Grama Sasan, be competent-

Page 46 of 66

(i) to exercise control and supervision, the nature and

extent of which shall be such as may be prescribed,

over institutions and functionaries of various sectors

in relation to the programmes and measures, as the

Government may, by Notification, specify; and

(ii) to prepare the local plans including tribal sub-

plans for the area and to exercise control over the

resources for such plans.]

20-A (1) The Chairman of the Samiti shall-

(a) convene and conduct the meetings of the Samiti;

and

(b) have power to inspect and supervise all works

undertaken by the Samiti.

(2) The Vice-Chairman of the Samiti shall exercise

such powers and perform such functions of the

Chairman as the Chairman may, from time to time,

delegate to him in writing and the Chairman may in

like manner withdraw all or any of the powers and

functions so delegated.

(3) When the Office of the Chairman is vacant the

Vice-Chairman of the Samiti shall, for all the purposes

of this Act exercise the powers and perform the

functions of the Chairman until a new Chairman is

elected.

(4) The Chairman and in his absence the Vice-

Chairman shall preside over the meetings of the

Samiti and in the absence of both at the meeting any

other non-official member of the Samiti present may

be elected to preside over the meeting.

(5) When the Office of the Chairman is vacant or the

Chairman has been continuously absent from the

Block for more than fifteen days or is incapacitated

for more than fifteen days and there is either a

vacancy in the Office of the Vice-Chairman or the Vice-

Chairman has been continuously absent from the

Block for more than fifteen days or is incapacitated

for more than fifteen days, the powers and functions

of the Chairman shall devolve on a member of the

Samiti from out of a panel of three such members in

order of priority nominated by the Chairman in that

behalf who shall be the Officiating Chairman and

shall exercise the powers and perform the functions of

Page 47 of 66

the Chairman, subject to such restrictions and

conditions as may be prescribed, until a Chairman or

Vice-chairman assumed office on being duly elected

or, as the case may be, taken charge of his office.

(6) The Chairman shall nominate the panel as

referred to in sub-section (5) within a period of one

month from the date of the first meeting of the Samiti,

failing which the Samiti shall nominate the panel in

its first meeting held after the expiry of this aforesaid

period of one month.

(7) Where the Chairman of a Samiti existing

immediately before the commencement of the Orissa

Panchayat Samiti (Amendment) Act, 1986, has not

nominated the panel, he shall nominate it within a

period of one month from the date of commencement

of the said amendment Act, failing which the Samiti

shall nominate the panel in its first meeting held after

the expiry of the aforesaid period of one month.

45. In this context, it would also be worthwhile to

refer to the evidence of RW-1. He has stated the following

under paragraphs- 36 and 54 of the cross-examination.

“36. It is not a fact that as Chairman of

Panchayat Samiti all recommendations regarding

disbursement of benefits under different Government

Schemes, such as, old age pension, PM Awas Yojana,

Ration Cards, Widow Pensions etc. are passed by me.

54. It is a fact that I was supervising all

developmental works of the Panchayat Samiti prior to

coming into force of model code of conduct for election

and after expiry thereof. I used to attend office

sometimes during that period. It is not a fact that the

post of Chairman of the Panchayat Samiti had been

suspended during that period.”

Page 48 of 66

46. As already stated, Section 52 provides that the

Chairman and other shall be deemed to be public servants

within the meaning of Section 21 of the IPC.

47. In the case of Umrao Singh (supra) the Supreme

Court held that the allowances paid to the Chairman of

Panchayat Samiti is not salary, remuneration or

honorarium. Therefore, the same does not convert the office

of the Chairman into an office of profit.

48. A similar matter engaged the attention of the

Supreme Court in the case of Raja Bahadur K.C. Deo

Bhanj v. V. Raghunath Misra and others

11. In the said

case, the question was, whether Sarpanch of a Gram

Panchayat could be treated as a person in the service of the

Government so as to come within the provisions of Section

123(7)(f) of the Act. Analysing the different provisions of the

Odisha Gram Panchayat Act (prior to its amendment in

1964), the Supreme Court held as follows:

11. In our opinion, there is a distinction between

'serving under the Government' and 'in the service of

the Government', because while one may serve under

a Government, one may not necessarily be in the

service of the Government; under the latter expression

11

AIR 1959 SC 589

Page 49 of 66

one not only serves under the Government but is in

the service of the Government and it imports the

relationship of master and servant. There are,

according to Batt (On the Law of Master and Servant),

two essentials to this relationship: (1) The servant

must be under the duty of rendering personal services

to the master or to others in his behalf and (2) the

master must have the right to control the servant's

work either personally or by another servant or agent

and, according to him,

"It is this right of control or interference, of being

entitled to tell the servant when to work (within the

hours of service) or when not to work, and what work

to do and how to do it (within the terms of such

service), which is the dominant characteristic in this

relation and marks off the servant from an

independent contractor, or from one employed merely

to give to his employer the fruits or results of his

labour. In the latter case, the contractor or performer

is not under his employer's control in doing the work

or effecting the service; he has to shape and manage

his work so as to give the result he has contracted to

effect. Consequently, a jobbing gardener is no more

the servant of the person employing him than the

doctor employed by a local authority to act as visiting

physician to its fever hospital." None of the provisions

of the Orissa Act suggest that as between the State

Government and the Grama Panchayat and its

Sarpanch any such relationship exists. It is true that

the State Government, the District Magistrate and the

Sub-divisional Magistrate have been given certain

powers of control and supervision over the Grama

Panchayat but those powers of control and

supervision are in relation to the administrative

functions of the Grama Panchayat and the Sarpanch.

The Grama Panchayat is an autonomous body

exercising functions conferred under the statute. It

can hardly be said that the Grama Panchayat in so

functioning is in the service of the Government. Its

administrative functions are akin to the functions

generally performed by Municipalities and District

Boards. It would be a conception hitherto unknown to

suppose that any Municipality or District Board was

in the service of the Government merely because it

exercised administrative functions and to some extent

Page 50 of 66

was under the control of the Government. Co-

operative societies generally are very much under the

control and supervision by the State Government or

one of its offices authorized in that behalf. It would be

difficult to accept the suggestion that because of that

a Co-operative society and its members must be

regarded as in the service of the Government. Even

with respect to companies, progressively, legislation

has been giving power to the Government to control

and supervise them. Under S. 259 of the Indian

Companies Act, 1956, in certain circumstances, any

increase in the number of its directors must be

approved by the Central Government and shall

become void it is disapproved. Under S. 269, in the

case of a public company or a private company which

is a subsidiary of a public company, the appointment

of a managing or whole-time director for the first time

after the commencement of this Act in the case of an

existing company, and after the expiry of three

months from the date of its incorporation in the case

of any other company, shall not have any effect

unless approved by the Central Government; and

shall become void if, and in so far as, it is

disapproved by the Central Government. Under S.

408 the Government has the power to prevent

mismanagement in the affairs of the company and

under the proviso in lieu of passing any, order under

sub-s. (1) the Central Government may, if the

company has not availed itself of the option given to it

under S. 265, direct the company to amend its

Articles in the manner provided in that section and

make fresh appointments of directors in pursuance of

the Articles as so amended, within such time as may

be specified in that behalf by the Central Government.

Section 409 empowers the Central Government to

prevent change in the number of directors likely to

affect the company prejudicially. It could not be said,

because of these provisions, that a company was in

the service of the Government. It seems to us,

therefore, that the mere power of control and

supervision of a Grama Panchayat exercising

administrative functions would not make the Grama

Panchayat or any of its members a person in the

service of the Government. Even if it could be said

that the Grama Panchayat in the exercise of its

administrative functions exercised duties in the

Page 51 of 66

nature of governmental duties it could not thereby be

said that its Sarpanch was in the service of the

Government. So far as the Sarpanch is concerned, he

is merely the executive head of the Grama Panchayat

which carries out its functions through him. He is not

appointed by the Government. He is not paid by the

Government. He does not exercise his functions as

one in the service of the Government and he can only

be removed on the ground of negligence, inefficiency

or misbehaviour. We have been unable to find a

single provision of the Orissa Act from which we could

say that a Sarpanch is a person in the service of the

Government. Reference had been made on behalf of

the respondent No. 1 to S. 31 of the Orissa Act which

authorizes the Grama Panchayat to enter into a

contract with the State Government to collect all or

any class of taxes or dues payable to the Government

at a prescribed percentage as collection charges. As

the Grama Sasan is a body corporate and the Grama

Panchayat is its executive authority, the statute

enabled the Grama Panchayat by provisions of S. 31

to enter into a contract with the State Government to

collect its taxes and its dues. It cast no obligatory

duty upon the Grama Panchayat to collect such taxes

or dues of the Government. No provision of the Orissa

Act has been placed before us by which the State

Government could order a Grama Panchayat to collect

its taxes or its dues. Furthermore, under cl. (b) to S.

31, a Grama Panchayat is authorized to enter into

similar contracts with proprietors or land holders to

collect their rents. The provisions of S. 31 militate

against the theory that the Grama Panchayat is in the

service of the Government. There would be no

occasion for such a provision if the Grama Panchayat

was in the service of the Government in which case it

would have to carry out the orders of the Government

to collect its taxes or its dues.

12. Even if on a reasonable construction of the

provisions of the Orissa Act it could be held that a

Sarpanch of the Grama Panchayat was a person in

the service of the Government, it would have to be

further held that he was of the class of officers

mentioned in S. 123(7)(f). Clause (f), in the first

instance, speaks of a person in the service of the

Government who is a revenue officer and then further

Page 52 of 66

extends the class to village accountants. The words

"such as patwaris, lekhpals, talatis, karnams and the

like" are merely descriptive of the words "Revenue

officers including village accountants". Under cl. (f) it

is essential that a person in the service of the

Government must be a revenue officer or a village

accountant, by whatever name such officer or village

accountant may be described. The exclusion of every

other village officer from the provisions of cl. (f)

compels the conclusion that before this clause can

apply to a Sarpanch of the Grama Panchayat under

the Orissa Act it must be proved that he is either a

revenue officer or a village accountant. The mere fact

that under S. 31 of the Orissa Act a Grama Panchayat

is enabled to enter into a contract with the State

Government to collect its taxes or its dues cannot

convert a Sarpanch into a revenue officer. No doubt a

Grama Panchayat would have to supervise and

maintain village and field boundary marks and

village records if required to do so by the State

Government under S. 21(r) of the Orissa Act. In the

present case there is no proof that the Grama

Panchayats in question were required to do any such

thing by the Government. It is significant that under

S. 54(1)(xiv) of the Orissa Act it is a choukidar

appointed under that Act by the District Magistrate on

whom a statutory duty is cast to keep watch over

boundary marks and report to the Grama Panchayat

any loss or damage caused to the boundary marks

defining villages. The Grama Panchayat, however,

has not been assigned positively any functions under

the Orissa Act which are discharged by a revenue

officer. The provision of S. 21(r) would not by itself

convert a Sarpanch of a Grama Panchayat into a

revenue officer. Similarly, there is no provision of the

Orissa Act which shows that a Sarpanch is a village

accountant. It had been suggested on behalf of

respondent No.1 that if it could be established that a

Sarpanch was a revenue officer or a village

accountant, then the very fact that he was such a

person made him a person in the service of the

Government. It is doubtful whether any such

necessary conclusion arises, but there is no need to

make further reference to this submission as, in our

opinion, a Sarpanch of the Grama Panchayat under

Page 53 of 66

the Orissa Act is neither a revenue officer nor a village

accountant.

13. It follows, therefore, that in the present case the

two essential elements that a Sarpanch must be a

person in the service of the Government and that he

belongs to the class mentioned in cl. (f) of sub-s. (7) of

S. 123 have not been established. Even if one of them

had been established and not the other the provisions

of S. 123(7) would not apply to such a person. In our

opinion, the High Court erred in supposing that

because a Sarpanch of a Grama Panchayat under the

Orissa Act exercised governmental duties he must be

regarded as a person in the service of the

Government. The High Court did not give any clear

finding that a Sarpanch, even if a person in the

service of the Government, was either a revenue

officer or a village accountant. In our opinion, the

provisions of S. 123(7) do not apply to him. Therefore,

it cannot be said that any corrupt practice under S.

123 had been established in the case and the election

of the appellant could not be set aside on the only

ground on which his election had been set aside by

the High Court. The appeal is accordingly allowed

with costs and the election petition of respondent No.

1 is dismissed.”

49. Be it noted that though the judgment in the cited

case was rendered interpreting the provisions of the Odisha

Gram Panchayat Act (prior to its amendment), yet the

principle laid down shall also apply to the present case for

the reason that the Odisha Panchayat Samiti Act, which

provides for the appointment of Chairman of Panchayat

Samiti, is intrinsically similar, if not identical to the Odisha

Gram Panchayat Act. In the cited case also, the question

that arose for consideration was whether an elected office

Page 54 of 66

bearer of a local self-government institution could be treated

as a person in the service of the Government so as to attract

the provisions of Section 123(7) of the Act. The Supreme

Court, held that mere supervisory or administrative control

exercised by the Government over such body would not

create a relationship of master and servant between the

Government and the elected office bearer thereof.

50. The provisions of the Odisha Panchayat Samiti

Act, 1959, particularly those relating to the constitution,

powers and functions of the Panchayat Samiti and its

Chairman as already stated, resemble the statutory

framework that was examined by the Supreme Court in the

Raja Bahadur K.C. Deo Bhanj (supra). The Chairman of

the Panchayat Samiti is an elected representative

functioning under a statutory scheme of local self-

government and not a person appointed in Government

service. Therefore, merely because the Chairman exercises

certain executive or supervisory powers under the statute or

is deemed to be a public servant within the meaning of

Page 55 of 66

Section 21 of the IPC, it cannot be held that he is a person

‘in the service of the Government’ for the purpose of the Act.

51. Thus, this Court is of the considered view that the

ratio decided in Raja Bahadur K.C. Deo Bhanj (supra)

shall apply in full force to the facts of the present case.

Accordingly, this Court holds that the provision under

Section 123(7) of the RP Act will not apply as Manas Jena

cannot be treated as a person in service of the Government.

52. The only question that remains for determination

is applicability of ‘Handbook for Candidate’ issued by the

Election Commission of India. Undisputedly, Election

Commission of India has issued two such Handbooks, one

for the Returning Officers and the other for the candidates.

In the Handbook for the Returning Officer, paragraphs-

5.25.3 and 5.25.4 deal with appointment of election agents.

Paragraphs- 5.25.3 and 5.25.4 being relevant are

reproduced below:

“5.25.3 Any person who is disqualified under the

Constitution or under the Representation of the

People Act, 1951, for being a member of either

House of Parliament or either House of the

Legislature of a State or for voting at elections

shall, so long as the disqualification subsists,

Page 56 of 66

be disqualified for being an election agent at

any election.

5.25.4 The Commission has instructed that the ministers

of the union or states and MP, MLA, MLCs and

any other person provided with security cover

by the state shall not be appointed as election

agents (and also as polling and counting

agents) as the security personnel accompanying

them cannot be permitted to enter polling station

and counting centre, nor can their security be

jeopardized in the absence of their security

personnel. No person with security cover can be

allowed to surrender the security cover to

enable him to become an election agent.”

53. There is no mention of Chairman of Panchayat

Samiti as being disqualified to act as election agent. Mr.

Mohapatra submits that though the Handbook for

Returning Officers may not specifically include the

Chairman of Panchayat Samiti within the prohibited

category, paragraph 6.1.2 of the Handbook for Candidates

specifically prohibits Chairperson/Vice-Chairperson of

Panchayat Samiti from acting as Election Agent, Polling

Agent or Counting Agent. According to him, the instruction

having been issued by the Election Commission of India in

exercise of powers under Article 324 of the Constitution of

India has binding force and any violation thereof vitiates the

election process. On the other than, Mr. Mishra has argued

Page 57 of 66

that Handbook for Candidates is merely advisory in nature

and cannot override the statutory provisions contained in

the Constitution or the Act. He further contends that even

the Handbook for Returning Officers which has force of law

as per the decision of the Supreme Court does not include

Chairman of Panchayat Samiti within the category of

disqualified persons. Therefore, according to Mr. Mishra, the

Election Commission by way of executive instructions

cannot enlarge the scope of disqualification prescribed

under Section 41 of the Act.

54. Having gone through the rival submissions, this

Court finds it worthwhile to discuss about the binding

nature of the two Handbooks issued by the Election

Commission of India. It is apt here to refer to the judgment

of the Supreme Court in the case of Ramesh Rout v.

Rabindra Nath Rout

12, wherein it has been held as follows:

“The Returning Officer plays an important role in

the election management and to ensure that there is

no scope left for any complaint, the Commission has

issued a handbook for Returning Officers (for short

“the handbook”) The handbook, as it states, has been

designed to give to the Returning Officers the

information and guidance which they may need in

12

(2012) 1 SCC 762

Page 58 of 66

performance of their functions; to acquaint them with

up-to-date rules and procedures prescribed for the

conduct of elections and to ensure that there is no

scope for complaint of partiality on the part of any

official involved in the election management. We shall

refer to the relevant provisions of the handbook a little

later. The handbook does not have statutory

character and is in the nature of guidance to the

Returning Officers.”

[ Emphasis added]

Similarly, in the case of Jitu Patnaik v. Sanatan

Mohakud

13, the Supreme Court reiterated the same

principle in the following words:

“38. In a recent decision of this Court in Ramesh

Rout v. Rabindra Nath Rout [(2012) 1 SCC 762] one of

us (R.M. Lodha, J.) speaking for the Bench observed

as follows: (SCC p. 770, para 14)

“14. … The Handbook, as it states, has been

designed to give to the Returning Officers the

information and guidance which they may need in

performance of their functions; to acquaint them with

up-to-date rules and procedures prescribed for the

conduct of elections and to ensure that there is no

scope for complaint of partiality on the part of any

official involved in the election management. We shall

refer to the relevant provisions of the Handbook a

little later. The Handbook does not have statutory

character and is in the nature of guidance to the

Returning Officers.”

39. In view of the above legal position that the

Handbook does not have statutory character and

there being no non-compliance with the provisions of

the Constitution or the 1951 Act or any Rules framed

or orders made under the 1951 Act by the Returning

Officer insofar as the death of an independent

candidate was concerned, the averments made in

Para 7(A) of the election petition do not furnish any

cause of action for declaring the election of the

returned candidate to be void under Section

13

(2012) 4 SCC 194

Page 59 of 66

100(1)(d)(iv). The High Court seriously erred in holding

otherwise and ordering trial of the election petition on

the pleadings set out in Para 7(A).”

[Emphasis added]

55. A plain reading of the aforesaid judgments leaves

no room for doubt that the Handbooks issued by the

Election Commission are merely administrative/executive

guidelines meant to facilitate smooth conduct of elections

and do not possess statutory force. When the Handbook for

Returning Officers, who are statutorily empowered and

responsible for smooth conduct of elections, does not have

statutory force, the Handbook for Candidate obviously

cannot have such force. Any departure from the guidelines

cannot therefore, entail any penal consequence. Therefore,

unless there is violation of any provision of the Constitution,

the Representation of the People Act, 1951 or the Rules

framed, mere deviation from any instruction contained in

such Handbooks cannot invalidate the appointment of

Manas Jena as Election agent.

56. This Court has already held that Manas Jena does

not suffer from any disqualification contemplated under

Section 41 of the RP Act nor can he be treated as a person in

Page 60 of 66

the service of the Government so as to attract the provision

under Section 123(7) of the RP Act. Therefore, even if

paragraph 6.1.2 of the Handbook for Candidate contains an

instruction prohibiting Chairperson/Vice-Chairperson of

Panchayat Samiti from acting as Election Agent, Polling

Agent or Counting Agent, such instruction, per se, cannot

enlarge the scope of statutory disqualification prescribed

under Section 41 of the Act.

57. It is well settled that executive instructions cannot

override statutory provisions. The field relating to

disqualification for being appointed as Election Agent is

specifically provided under Section 41 of the RP Act. Once

the Parliament has exhaustively prescribed the grounds of

disqualification, the same cannot be expanded by way of

administrative instructions issued by the Election

Commission. The powers of the Election Commission under

Article 324 of the Constitution are intended to supplement

the law and not to supplant it.

58. For the forgoing reasons therefore, this Court is

unable to accept the contention advanced on behalf of the

Page 61 of 66

election petitioner that appointment of Manas Jena as

Election Agent and Counting Agent of the respondent was

barred under Sections 40 or 41 of the RP Act.

59. Issue Nos. II and III are answered accordingly

against the election petitioner.

60. The main issues having been decided in the

manner narrated above, this Court would now consider

Issue No.VII.

Issue No.VII

(VII) Whether on account of appointment of

Manas Jena as the Election Agent of sole

respondent, the result of the election insofar

as it concerned the returned candidate (sole

Respondent), has been materially affected

and whether the election of the sole

respondent is liable to be declared as void?

61. Mr. Mohapatra, learned Senior Counsel has

argued that Manas Jena has admitted to have played a vital

role in the election process in paragraphs-42 and 43 of his

evidence. Since it is admitted that Manas Jena was also the

Chairman of Panchayat Samiti it is evident that he utilized

his official position to influence the voters and garner votes

Page 62 of 66

in favour of the respondent thereby materially affecting the

result of the election.

62. Per contra, Mr. Mishra argues that in the absence

of any evidence worth the name as to who the influenced

voters were, how they were influenced and/or how the

alleged influence affected the outcome of the election, such

inference cannot be drawn more so as the same has neither

been pleaded nor proved by the election petitioner.

63. This Court has carefully perused the pleadings of

the parties, particularly the election petition which contains

12 paragraphs excluding paragraphs 9 (D) and 9 (F) struck

out by the Court by its earlier order dated 11.03.2025.

There is not a single pleading containing any allegation

against Manas Jena of influencing the voters. The evidence

affidavit runs into 21 paragraphs. There is not a single

statement made by the election petitioner (PW-1) making

such allegation. It has only been argued that being the

Chairman of Panchayat Samiti he must be held to have

automatically influenced the voters and the outcome of

Page 63 of 66

election. It is also significant to take note of the admission

made by PW-1 in his cross-examination as follows:

“80. I came to know about the appointment of Manas

Jena as election agent of the respondent for the first

time on the day of polling. I have not lodged any

complaint against the appointment of Manas Jena as

election agent before any authority.

81. It is not a fact that I had not lodged any complaint

against the appointment of Manas Jena as election

agent of the respondent as there was no illegality or

impropriety committed by them in the election

process.”

He further admitted in paragraphs 91 and 92 as

follows;

“91. I have not given any specific instance of the

respondent procuring the assistance of his election

agent in furtherance of his prospects of winning the

election.

92. I have not given any specific instance that the

election was not fair, transparent and free because of

appointment of Manas Jena as election agent of the

respondent.”

64. This Court has found no merit in the contention

advanced that Manas Jena was disqualified to act as an

election agent. Under such circumstances, it was incumbent

upon the election petitioner to plead and prove specific

instances to demonstrate that even acting in his individual

capacity Manas Jena had influenced the voters to vote in

Page 64 of 66

favour of the respondent or that, but for his appointment as

election agent, the result of the election would have been

different.

65. As held in the case of Jagan Nath v. Jaswant

Singh

14 it is no doubt true that the statutory requirements

of election law are required to be strictly observed and that

an election dispute is a special proceeding created by

statute, unknown to the common law, wherein the Court

exercises only such jurisdiction as is conferred by the

statute itself. It is equally well settled that the mandate of

the electorate in favour of a returned candidate ought not to

be lightly disturbed and any challenge to such election must

strictly conform to the requirements prescribed under law.

At the same time, one of the fundamental objects of election

law is to preserve the purity of the electoral process and to

ensure that no candidate secures election by flagrant

violation of law or by resorting to corrupt practices.

Therefore, where the statute itself does not prescribe any

consequence or penalty for non-compliance of a procedural

14

(1954) 1 SCC 57

Page 65 of 66

requirement, such non-compliance by itself would not

automatically vitiate the election or affect the jurisdiction of

the Court to adjudicate the dispute. The distinction between

a mandatory statutory disqualification and a mere

procedural irregularity, for which no penal consequence is

provided, assumes importance in the facts of the present

case. As already discussed, neither the Constitution nor the

provisions of the Act create any disqualification against

Manas Jena to act as Election Agent or Counting Agent of

the respondent. At best, the objection raised by the election

petitioner is based upon certain executive instructions

contained in the Handbook for Candidate, which as already

held, does not possess statutory force. Therefore, in absence

of any statutory prohibition and further in absence of any

pleading or proof of material effect on the election result, the

contention advanced by Mr. Mohapatra cannot be accepted.

66. Issue no. VII is accordingly answered against the

petitioner.

Page 66 of 66

Issue No. IV

“(IV) To what other relief (s) the election

petitioner is entitled to?”

67. In view of the finding on the other issues, this

Court holds the election petitioner not entitled to the relief

claimed in the election petition.

68. Issue No. IV is answered accordingly.

CONCLUSION.

69. In the result, the election petition being devoid of

merit, is dismissed. There shall be no order as to costs.

70. 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 send

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 Rules of the High

Court of Orissa, 1948.

.…..………………… ..

Sashikanta Mishra,

Judge

Orissa High Court, Cuttack

The 22

nd

May, 2026/ A.K. Rana, P.A.