PRAFULLA CHANDRA CHADOI v. SARAT ROUT — 1997 DIGILAW 289 (ORI)

R. K. DASH, J. ( 1 ) THESE two Misc. Cases arising out of Election Petition No. 10 of 1995 being inter-linked were heard analogously and are disposed of by this common order. ( 2 ) RESPONDENT No. 1 in the aforesaid Election Petition is the petitioner in both the Misc. Cases. He is the returned candidate from 23 Sukinda Assembly Constituency whose election has been challenged by the opposite party on the ground that he had committed corrupt practices as enumerated in the Election Petition. Before filing of the written statement the petitioner filed two Misc. Cases, viz. Misc. Case Nos. 26 and 28 of 1995, to dismiss the Election Petition on the ground of absence of cause of action and to strike out paragraphs 7 to 48 of the Election Petition. Objections were filed by the opposite party whereupon both the Misc. Cases came up for hearing before Hon'ble Mr. Justice A. Pasayat after settlement of issues. My order dated 12-4-1996 the Court observed that both the Misc. Cases shall be considered at the time of hearing of the Election Petition. The petitioner then filed Misc. Case No. 86 of 1996 praying to take up hearing of the aforesaid two Misc. Cases first. In the meanwhile the case came on transfer to my file. Upon hearing the parties and keeping (sic) the earlier order of Hon'ble A. Pasayat, J. disposed of the said Misc. Case by order dated 13-2-1997 observing that both the Misc. Cases will be considered and dispose of along with the Election Petition. To recall the above two orders and to hear and dispose of the aforesaid Misc. Cases Nos. 26 and 28 of 1995, the petitioner has filed the present Misc. Case No. 9 of 1997. So far as Misc. Case by order dated 13-2-1997 observing that both the Misc. Cases will be considered and dispose of along with the Election Petition. To recall the above two orders and to hear and dispose of the aforesaid Misc. Cases Nos. 26 and 28 of 1995, the petitioner has filed the present Misc. Case No. 9 of 1997. So far as Misc. Case No. 10 of 1997 is concerned, petitioner's case is that since his election to the State Legislature from Sukindo Assembly Constituency has been challenged on the ground that he had resorted to corrupt practices and as required by Section 83 (1) of the Representation of the People Act, 1951 (for short, 'the Act') read with Rule 94a of the Conduct of Elections Rules, 1961 (for short, 'the Rules'), where the election of the returned candidate has been challenged on the ground of corrupt practice, the petition shall be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practices and the particulars thereof and the affidavit shall be sworn before a Magistrate of the first class or a notary or a Commissioner of Oaths and shall be in Form 25, and the same having not been complied with in the present case, the election petition deserves dismissal on the ground of maintainability at the threshold. ( 3 ) THE sole opposite party (petitioner in the main election petition) filed objection in both the Misc. Cases. His main ground of challenge is that the petitioner's similar applications filed earlier having been ordered to be heard along with other issues in course of hearing the main case on merits, the present applications on the selfname ground are hit by the principles of res judicata. As to the allegation of non-compliance of the statutory requirement of the provision of Section 83 (1) of the Act and the Rule 94a of the Rules, it is stated that the affidavit in Form 25 filed by the opposite party satisfies all the requirements of election law. In the premises, the opposite party contended that both the Misc. Cases filed by the petitioner should be dismissed and the main election petition should be passed on merit. ( 4 ) SHRI Bijay Pal, learned counsel for the petitioner, relying upon the judgment of the Apex Court in the case of Dr. In the premises, the opposite party contended that both the Misc. Cases filed by the petitioner should be dismissed and the main election petition should be passed on merit. ( 4 ) SHRI Bijay Pal, learned counsel for the petitioner, relying upon the judgment of the Apex Court in the case of Dr. (Smt.) Shipra v. Shanti Lal Khelwal, AIR 1996 SC 1691 and two decisions of this Court, one by Hon'ble Justice R. K. Patra in Misc. Case No. 8 of 1997 (Amar Prasad Setpathy v. Sitachanta Mohapatra and other) and the other by Hon'ble Mr. Justice Deepak Misra in Misc. Case Nos. 57, 58, 59, 69 and 70 of 1996. Minakshree Nayak v. Bijayshree Routray and others) strenuously contended that it being the mandatory requirement of law that where the election petition is filed challenging the election of a returned candidate on the allegation of corrupt practice, it should be accompanied by an affidavit in the prescribed form in support of such corrupt practice and the said affidavit should be duly and solemnly verified to be correct statement and the true copy thereof shall be supplied to the returned candidate which shall contain such affirmation by the prescribed authority and certified to be the true copy of the election petition, and in the case in hand the copy of the affidavit supplied to the petitioner, Annexures 4 and 8, did not satisfy the above requirements, and therefore, the election petition should be dismissed at the threshold. He further urged that similar applications filed earlier having not been disposed of on merit, principles of res judicated have the application at all. ( 5 ) IN reply, Shri Bidyadhar Misra, counsel for the opposite party, submitted that as the issues have been struck and the case in ripe for hearing, piecemeal trial should be avoided, in view of the mandate of the Act that the election petition should be heard as expeditiously as possible and disposed of within six months. ( 5 ) IN reply, Shri Bidyadhar Misra, counsel for the opposite party, submitted that as the issues have been struck and the case in ripe for hearing, piecemeal trial should be avoided, in view of the mandate of the Act that the election petition should be heard as expeditiously as possible and disposed of within six months. He went on to argue that the question of maintainability of the election petition can be gone into and decided along with other issues on the basis of the evidence to be adduced by the parties, and because of that the Court on earlier occasion was not inclined to take up hearing of the same as preliminary issue and in that view of the matter, the present application on the selfsame ground, that is, to hear on the question of maintainability does not merit consideration. ( 6 ) TO appreciate the contention of Shri Misra, learned counsel for the opposite party, about the applicability of the principles of res judicata it is necessary to find as to what were the averments in the earlier Misc. Case No. 26 of 1995 and what decision was arrived at by the Court. In paragraph 3. 1 of the petition the requirement of the statute to maintain an election petition has been stated thus :". . . . . It is mandate of the statute, as interpreted by Hon'ble Supreme Court, that the pleading in such election petition must be in terms of sub-section 1 (a) and 1 (b) and proviso to sub-section (1) of Section 83. Sub-sections 1 (a) and 1 (b) provide that an election petition shall contain a concises statement of the material facts on which the petitioner relies including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice. Proviso to sub-section (1) of Section 83 makes it mandatory for the election petitioner where he alleged any corrupt practice that such petition shall be accompanied by an affidavit in the Prescribed Form in support of the allegation of such corrupt practice and the particulars thereof. Proviso to sub-section (1) of Section 83 makes it mandatory for the election petitioner where he alleged any corrupt practice that such petition shall be accompanied by an affidavit in the Prescribed Form in support of the allegation of such corrupt practice and the particulars thereof. Rule 94-A of the conduct of Election Rules, 1961 (hereafter described as Rule) provides that the affidavit referred to in the Proviso to sub-section (1) of Section 83 shall be sworn to before a Magistrate of the First Class or a notary or a commissioner of oaths and shall be in Form 25. "in the case in hand, non-compliance with the aforesaid statutory requirement has been specifically averred in paragraph 6. 1 of the petition as under :"the returned candidate-petitioner begs to state and submit that the election petition does not satisfy the requirements of the aforesaid provisions. As such it is liable to be dismissed even before filing of written statement by Respondent No. 1 returned candidate,. . . . . " ( 7 ) IT appears from the record that the said petition was not taken up for hearing till filing of the written statement. Only after the written statement was filed and issues were struck the Court by order dated 12-4-1996 observed that the same shall be considered at the time of hearing of the election petition. From the above it appears that neither the petition was heard on merit nor any decision was taken by the Court either rejecting or allowing the petition. It is fundamental that principle of res judicata as provided in Section 11, C. P. C. applies where an issue which has been raised in a subsequent suit was directly and substantially in issue in a farmer suit between the same parties and was heard and decided finally. In the case in hand the question of maintainability of the election petition on the ground of non-compliance of the statutory provision as aforesaid was not heard and decided by the Court. It was rather ordered to be considered along with other issues. In that view of the matter, I am not inclined to accept the submission of Shri Misra that the present petition on the selfsome ground is barred by principles of res judicata. It was rather ordered to be considered along with other issues. In that view of the matter, I am not inclined to accept the submission of Shri Misra that the present petition on the selfsome ground is barred by principles of res judicata. ( 8 ) COMING to the merit of the case, regarding non-compliance of the requirement of the Proviso to sub-section (1) of Section 83 of the Act and rule 94a of the Rules, at the outset it is necessary to have a brief reference to the averments made in the petition in Misc. Case No. 10 of 1997. In paragraph 14 of the petition it has been stated thus :"that at the cost of repetition, it is submitted that the affidavit filed by the Election Petitioner, opposite party under Rule 94a of the Conduct of Election Rules, 1961 is not in conformity with Form No. 25 and the mandate of Rule 94a of the Conduct of Election Rules. The affidavit is vague, incomplete and contrary to the settled law in respect of allegation of corrupt practices. "the petition it has been further stated :". . . . . . Copies of the affidavit carved on Respondent No. 1, petitioner do not contain stamped endorsement of the Oath Commissioner about the affirmation before him. In other words the Respondent No. 1 has not been carved the true copy of the Election Petition by opposite party No. 1 which in itself is a material contravention of the provisions of the Act and Rules. . . . . . " ( 9 ) SECTION 83 of the Act is the relevant provision for determining the question in issue raised at the Bar. The aforesaid provision is quoted as under :"83. Contents of petition. (1) An election petition- (a) shall contain a concise statement of the material facts on which the petitioner relies. . . . . . " ( 9 ) SECTION 83 of the Act is the relevant provision for determining the question in issue raised at the Bar. The aforesaid provision is quoted as under :"83. Contents of petition. (1) An election petition- (a) shall contain a concise statement of the material facts on which the petitioner relies. (b) shall set forth full particulars of any corrupt practice that the petitioner alleges including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice, and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. (2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. "proviso to sub-section (1) of Section 83 is clear and specific that where election of a returned candidate has been challenged by the petitioner on the ground that he had resorted to corrupt practice, the election petition shall be accompanied by an affidavit in the prescribed form in support of such allegation and the particulars thereof. Rule 94a of the Rules provides inter alia, that the affidavit referred to in proviso to sub-section (1) of Section 83 shall be sworn before a Magistrate of the first class or a Notary or a Commissions of Oaths in Form 25. The next relevant privision in Section 81 (3) of the Act which envisages that every election petition shall be accompanied by so many copies thereof as there are respondents mentioned in the election petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition. The grievance of the petitioner, as stated in paragraph 15 of the petition, is that the copies of the affidavits supplied to him do not satisfy the requirements of Rule 94 and are not in accordance with Form 25. This allegation has not been stoutly denied or refuted by the opposite party. The grievance of the petitioner, as stated in paragraph 15 of the petition, is that the copies of the affidavits supplied to him do not satisfy the requirements of Rule 94 and are not in accordance with Form 25. This allegation has not been stoutly denied or refuted by the opposite party. In paragraph 12 of the counter he only stated that the averments made in the aforesaid paragraph 15 are not legally sustainable. Zerox copies of the affidavits supplied to the petitioner are assessed to the petition as Annexures A and B. The endorsement "solemnly affirmed and signed before me" by the Magistrate of the First Class/notary/commissioner of Oaths and the stamped endorsement regarding the affirmation which the election petitioner made at the time of making the affidavits are necessary and essential parts of the documents and if these are omitted from the copies furnished to the respondent, a returned candidate, that would render the copy incomplete and the defect would be so glaring as to negative the inference that the copy was furnished. I bare perusal of Annexures A and B would show that the aforesaid requirements of law were not complied with, inasmuch as they do not contain the stamped endorsement with official designation of the prescribed authority regarding affirmation which the opposite party made at the time of making the affidavit. ( 10 ) A similar question like the present one came up for consideration before the Bombay High Court in the case of Purushottam v. Returning Officer, Amarwati, AIR 1992 Bom 227 , where the Court held that the concept of substantial compliance cannot be extended to overlook serious or vital mistakes which shad the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy. Approving the said view, their Lordships of the Supreme Court in the case of Dr. (Smt.) Shipra (supra) held at page 1694 (of AIR) :". . . . . . Verification by a Notary or any other prescribed authority is a vital act which assumes that the election petitioner had affirmed before the notary etc. that the statement containing impugation or corrupt practice was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition and the affidavit filed in support thereof; that reinforces the assertions. that the statement containing impugation or corrupt practice was duly and solemnly verified to be correct statement to the best of his knowledge or information as specified in the election petition and the affidavit filed in support thereof; that reinforces the assertions. Thus affirmation before the prescribed authority in the affidavit and the supply of its true copy should also contain such affirmation so that the returned candidate would not be misled in his understanding that imputation of corrupt practices was solemnly affirmed or duly verified before the prescribed authority. For that purpose, Form 25 mandates verification before the prescribed authority. The object appears to be that the returned candidate is not misled that it was not duly verified. The concept of substantial compliance of filing the original with the election petition and the omission thereof in the copy supplied to the returned candidate as true copy cannot be said to be a curable irregularity allegations of corrupt practice are very serious imputations which, if proved, would entail civil consequences of declaring that he become disqualified for election to a maximum period of six years under Section 8-A, apart from conviction under Section 136 (2 ). Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petitioner in his/her own signature. . . . . . . "in view of the above, the Court further held that consequences of non-compliance of the aforesaid statutory requirements will entail striking off the allegation of corrupt practices as pleaded in the election petition. Keeping in view the statutory provisions referred to above and the decision of the Apex Court in the case of Smt. Shipra (supra), I am of the opinion that since there has been non-compliance of previsous to sub-section (1) of Section 83 of the Act read with Rule 94a of the Rules, the present case is not maintainable in law. The decision of the Apex Court in Smt. Shipra's case though was rendered on 3-3-1996, but was published in 1956 August part of the All India Reporter. The decision of the Apex Court in Smt. Shipra's case though was rendered on 3-3-1996, but was published in 1956 August part of the All India Reporter. Had this decision been brought to the notice of the Court an earlier occasion, order could have been passed on the light of the said decision on the question of maintainability of the proceeding on the ground of non-compliance of the statutory requirements of law. ( 11 ) REGARD being had to the material defect in the true copy of the affidavits which are integral part of the election petition, I have no other option but to strike off the allegations of corrupt practices. Consequently the proceeding is not maintainable, since the entire election petition rested only on imputation of corrupt practices. Resultantly the election petition fails and the same is dismissed. In the circumstances, there shall be no order as to costs. ( 12 ) IN view of the aforesaid conclusion, no further finding is necessary on the petitioner's prayer in Misc. Case No. 9 of 1997 to recall the earlier orders dated 12-4-1996 and 15-2-1997. Petition dismissed. .