Afr Brajamohan Pradhan …. Election vs Aswini Kumar Patra on 22 May, 2026

May 23, 2026

Orissa High Court

Afr Brajamohan Pradhan …. Election vs Aswini Kumar Patra on 22 May, 2026

Bench: Sashikanta Mishra

                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

22nd May, 2026

SASHIKANTA MISHRA, J

SPONSORED

This Election Petition is filed by Brajamohan

Pradhan under Sections 80 to 84, 100 and 117 of the
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA Page 1 of 66
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58
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.

Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 2 of 66
Date: 22-May-2026 13:22:58

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.

Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA Page 3 of 66
Designation: P.A.
Reason: Authentication

Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58
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,
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 4 of 66
Date: 22-May-2026 13:22:58
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

Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA Page 5 of 66
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58
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

Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 6 of 66
Date: 22-May-2026 13:22:58
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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Signed by: AJAYA KUMAR RANA Page 7 of 66
Designation: P.A.
Reason: Authentication

Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58
(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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Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 8 of 66
Date: 22-May-2026 13:22:58
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

Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA Page 9 of 66
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58
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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Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 10 of 66
Date: 22-May-2026 13:22:58
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
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA Page 11 of 66
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58
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.

Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 12 of 66
Date: 22-May-2026 13:22:58

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

Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA Page 13 of 66
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58
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.

Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 14 of 66
Date: 22-May-2026 13:22:58

> 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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Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58
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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Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 16 of 66
Date: 22-May-2026 13:22:58
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?

Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA Page 17 of 66
Designation: P.A.
Reason: Authentication

Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58

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

Signature Not Verified
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Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 18 of 66
Date: 22-May-2026 13:22:58
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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Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 22-May-2026 13:22:58
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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Designation: P.A.
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK Page 20 of 66
Date: 22-May-2026 13:22:58
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 1st 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 Narain1,

• Dr. Y.S. Parmar vs. Sh. Hira Singh Paul and
Anr2.

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
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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

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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 Ors5
• S. Umrao Singh Vs. Darbara Singh and Ors6.
• Ramlal Vs Vishveshwar Nat7
• C.M. Stephen Vs Atal Behari Vajpayee 8
• Anokh Singh Vs Punjab State Election
Commission9
• Kishore Chandra Deo Bhanj Vs Raghunath
Mishra10

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:

(2011) SCC 181
10
AIR 1959 SC 589
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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.”

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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

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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:

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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;

(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

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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

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–

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(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;

(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.

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[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.

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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.

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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

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

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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

(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

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(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.

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(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);

(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

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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

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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.”

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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

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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;

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(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-

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(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

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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.”

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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 others11. 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
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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

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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

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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

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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

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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
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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

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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,
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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

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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 Rout12, 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
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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

Mohakud13, 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
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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
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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

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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

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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

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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
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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

Singh14 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
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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.

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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 22nd May, 2026/ A.K. Rana, P.A.
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Afr Brajamohan Pradhan …. Election vs Aswini Kumar Patra on 22 May, 2026

Orissa High Court