AMAR PRASAD SATPATHY v. SITAKANTA MOHAPATRA — 1997 DIGILAW 98 (ORI)

R. K. PATRA, J. ( 1 ) THIS application at the instance of the returned candidate arises out of election petition No. 6 of 1996 which is pending disposal. Prayer made in the application is for a direction to strike off the allegations of corrupt practices pleaded in the election petition. The sum and substance of the ground on which such prayer has now been made is that the copy of the election petition supplied to him does not contain the oath/affirmation made by the petitioner before the prescribed authority which is mandatorily required under law and the affidavit being set in conformity with Form 25 and nor in compliance with Rule 94-A of the Conduct of Election Rules, 1961, the allegations of corrupt practices are liable to be struck off. In paragraph 6 of the application, it has been stated as follows :". . . . . . . . ON a bare glance to the copy of the Election Petition supplied to the respondent No. 1, returned candidate, it would be abundantly clear that the affidavit is not in conformity with Form 26, nor in compliance of Rule 94-A of the Conduct of Election Rules, 1961 and does not contain the oath and/or affirmation done by the petitioner before the prescribed authority which is mandatorily required under law. "in the last sentence of paragraph 15 of the application, it has been asserted as follows :". . . . . . THE copy which has been supplied to respondent No. 1 does not contain the affirmation before the prescribed authority. " ( 2 ) THE election petitioner has filed his objection to this application on 19-3-1997. Although the prayer for striking off the allegations of corrupt practices has been resisted on different grounds, which will be dealt with at appropriate stage, there is no denial of the assertion that the copy of the election petition supplied to respondent No. 1, the returned candidate, does not contain any affirmation done by the petitioner before the prescribed authority in terms of Form 25. It had been stated in the objection by the election petitioner that the returned candidate had filed Misc. Case No. 108 of 1995 praying to try issue Nos. It had been stated in the objection by the election petitioner that the returned candidate had filed Misc. Case No. 108 of 1995 praying to try issue Nos. 1, 2 and 3 as preliminary issues and to dismiss the election petition (Issue No. 2 is that whether the election petition is liable to be dismissed under S. 26 (1) for non-compliance of the provisions contained in Ss. 81, 83 and 117 of the Representation of the People Act, 1951 (hereinafter referred to as 'the Act ). After hearing the parties, the said misc. case was dismissed on 1-7-1996. The present prayer for deletion of the allegations of corrupt practices on the grounds stated was available to be taken and urged in that case and the same not having been done, the prayer now made is barred by the principle of res judicata. The other ground of objection is that the present application in substance is an application to review the order dated 1-7-1996 and since no valid ground for review has been made out, the application should be rejected. The Court also cannot exercise its inherent power to recall its previous order dated 1-7-1996 which was passed after hearing the counsel for parties. Above all, trial of the election petition is in progress and meanwhile number of witnesses have been examined on behalf of the election petitioner and at this belated stage the present application should not be entertained. ( 3 ) MAY it be stated that the Supreme Court in Shipra v. Shanti Lal Kholwal, AIR 1996 SC 1691 : (1996 AIR SCW 1772) has held that the allegations of corrupt practices are serious imputations which, if proved, would entail civil consequences of declaring that the returned candidate became disqualified for election to a maximum period of six years under S. 8-A, apart from being convicted under S. 126 (2) of the Act. Verification by the prescribed authority is a vital act which assures that the election petitioner had affirmed before it that the statement containing the allegations of corrupt practices was duly and solemnly verified to be correct statements. For that reason Form 36 mandates verification before the prescribed authority. Verification by the prescribed authority is a vital act which assures that the election petitioner had affirmed before it that the statement containing the allegations of corrupt practices was duly and solemnly verified to be correct statements. For that reason Form 36 mandates verification before the prescribed authority. Compliance of this statutory requirement is an integral part of the election petition and the 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 of the election petition in his/her own signature. Thus, if the Court finds on an objection being raised by the returned candidate as to the maintainability of the election petition, the Court is required to go into the question and decide the preliminary objection. In case the Court does not uphold the same, the need to conduct trial would arise. If the Court upholds the preliminary objection, the election petition would result in dismissal at the threshold as the Court has left with no option except to dismiss the same. Of-course, if there are other independent issues which are required to be tried and decided on merits, the allegations of corrupt practices alone are required to be struck off. ( 4 ) AS already indicated, the election petitioner has not disputed in his objection with regard to the assertion made by the returned candidate that the copy supplied to him does not contain the oath and/or affirmation made by the petitioner before the prescribed authority which is mandatorily required under law. In view of this admitted position, the allegations of corrupt practices made in the election petition are liable to be struck off. ( 5 ) BUT the question that arises for consideration is whether the prayer made by the returned candidate at this stage can be considered particularly when his earlier application to decide issue Nos. 1, 2 and 3 as preliminary issues vide Misc. Case No. 108 of 1995 had already been dismissed on 1-7-1996. Shri Bidyadhar Mishra, learned counsel appearing for the returned candidate stated that the present application filed by him is neither an application for review of the order dated 1-7-1996 nor is it an application invoking the inherent jurisdiction of the Court to recall that order. According to him, compliance of the proviso contained in sub-sec. Shri Bidyadhar Mishra, learned counsel appearing for the returned candidate stated that the present application filed by him is neither an application for review of the order dated 1-7-1996 nor is it an application invoking the inherent jurisdiction of the Court to recall that order. According to him, compliance of the proviso contained in sub-sec. (1) (c) of S. 83 of the Act, which states 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, being mandatory in nature, as held by the Supreme Court in Shipra (supra), the prayer to delete the allegations of corrupt practices for non-compliance of the aforesaid mandatory provision is available to be considered at any stage. ( 6 ) ON careful consideration of the rival contentions of the parties, it is evident that the returned candidate's earlier application vide Misc. Case No. 108 of 1995 in which he had prayed to try issue Nos. 1 to 3 as preliminary issues had been dismissed after hearing the parties. In that application, it was contended that as the election petition does not contain material facts relating to corrupt practices, the same was liable to be rejected at the threshold. Another ground taken in that application was that the verification made to the election petition was defective. After hearing, as there was no merit in that application, the same was rejected by a reasoned order dated 1-7-1996. The returned candidate in that application could have also sought for deletion of the allegations of corrupt practices on the grounds now stated. Admittedly, he did not urge this point. In the circumstances, can it now be said that the present application would be hit by the principles of constructive res judicata? ( 7 ) THE Supreme Court to Mathura Prasad v. Dessibai, AIR 1971 SC 2355 held that the previous decision on a matter in issue alone is res judicata the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. Then it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter in issue is a composite decision the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata is a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. ( 8 ) AS has been held by the Supreme Court in the case of Shipra (supra), compliance of the statutory requirement is an integral part of the election petition and the 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. Non-compliance of S. 83 (1) (c) read with Rule 94-A of the Conduct of Election Rules, 1961 and Form 25 goes to the root of the matter, i. e. , as to maintainability of the election petition so far as it relates to the allegations of corrupt practices. In other words, non-compliance of the aforesaid provision strikes at the jurisdiction of the Court to try the allegations of corrupt practices. In other words, non-compliance of the aforesaid provision strikes at the jurisdiction of the Court to try the allegations of corrupt practices. For the reasons stated above, the order of this Court dated 1-7-1996 passed in Misc. Case No. 108 of 1995 in my considered opinion cannot operate as res judicata. ( 9 ) IN the result, I allow this application and hold that the allegations of corrupt practices contained in the election petition are liable to be struck off. I order accordingly. ( 10 ) PUT up the main case (Election Petition No. 6 of 1995) on 18-6-1997 after summer vacation to examine if the election petition survives for decision of any other independent issue on merits. Petition allowed. .