PRAFULLA CHANDRA CHADOI Vs. SARAT ROUT

JUDGEMENT

(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 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.