Gopal Rao Ekbote, C.J.
1. This appeal is from the judgment of our learned brother C. Kondaiah, J., given in W.P. No. 3886 of 1970 on 9-12-1970 whereby the learned Judge allowed the writ petition and quashed the order of the Election Tribunal , Vijayawada made in O.P. No. 131 of 1969.
2. The facts in outline are that a seat to the Municipal Council of Vijayawada fell vacant in Ward No. 33. A notification calling upon the Constituency to return the candidate was published on 25-3-1969. The last date for filing the nomination was fixed as 4-4-1969. The appellant and the 1st respondent filed their nomination papers on 4-4-1969.
3. On 3-4-1969 the scrutiny of nomination papers took place . The 1st respondent raised an objection to the nomination paper filed by the appellant. His contention was that he was in arrears of profession tax due from a firm of which he happened to be a partner.
4. The Returning Officer rejected the appellant's nomination holding on the evidence of the Bill Collector and the Revenue Officer that the appellant was in arrears.
5. The appellant, aggrieved by that order of the Returning Officer, preferred an appeal under Rule 11 (2) of the Election Rules to the Collector. The appeal, however was dismissed on 9-4-1969 confirming the order of the Returning Officer.
6. Thereupon the appellant filed W.P. No. 1255 of 1969 in this Court. On 11-4-1969, a Division Bench consisting of Jaganmohan Reddy , C.J. and Sambasiva Rao, J., dismissed the Writ Petition at the admission stage. The material portion of the said Judgment reads as follows :
'We do not think that there is any case for admitting this Writ Petition. The Election Officer and Secretary and Special Officer, Vijayawada Municipality rejected the nomination on the ground that the petitioner was in arrears of profession tax on the date of scrutiny, viz, 5-4-1969. It was held that the petitioner had paid arrears of Rs. 50/- to one Prasada Rao who gave it to Srinivasa Rao, Bill Collector on 5-4-1969 after his nomination had come up for scrutiny and that a receipt was obtained from him persuading him to antedate it to 31st March, 1969. The amount is said to have been paid by Srinivasarao. Both these Bill Collectors gave a statement before the Election Officer that the amount was paid just then on 5-4-1969 and not as alleged on 31-3-1969. The Election Officer stated that the allegation that it was paid between 3-30 and 4-30, on 31-3-1969 also was not substantiated because his enquiries revealed that there was no Bill Collector in the Municipal Office on that day at that time. Against this order, an appeal was filed to the Collector. The Collector also scrutinized the record and stated that as per the Municipal records, the petitioner had not paid the tax by the time the Municipal records, the petitioner had not paid the tax by the time the Municipal records were verified by the Revenue Officer after the objection was filed by the Brahmenswararao (Respondent). When the petitioner's nomination was taken up by the Election Officer for scrutiny and that the statement of the two employees showed that they were in collusion with the petitioner and held that the amount was paid on 5-4-1969 and not on 31-3-1969.
In our view both the Election Officer and the Collector on the statements before them could come to the conclusion to which they have reached and we do not think that there is any error of jurisdiction or of law or violation of any principles of natural justice.
There was an allegation that the order of the Collector is mechanical and equally mala fide and was brought about by the political pressure of the Congress leaders in order to see that the petitioner who happens to be an important leader of the opposition is defeated and his rival congress candidate is declared without contest. But in the face of the material upon which the officers acted, we cannot say that prima facie case of bias is made out, nor are there any details given in the affidavit to show how influence was brought on the concerned officers. The allegations are therefore vague. It is further submitted that the petitioner did not have any opportunity but this also does not seem to be warranted because the petitioner seems to have been present as is evident from the order of the Election Officer. He asserted that he paid the tax on 31-3-1969 itself on information from his office that profession tax was payable and had also stated that he had information that Brahmeswara Rao (Respondent), and other persons seized the receipt books etc. from the Bill Collector and brought them to his room. A mere allegation in the above circumstances does not carry conviction to our mind, particularly when we consider the facts that the Bill Collectors would not have made self-incriminating statement exposing them to disciplinary action, if they were not true.
In the result, we dismiss the Writ petition.'
7. The appellant, after the conclusion of the election in which the 1st respondent was elected from the said Ward filed an Election Petition O. P. No. 131 of 1969 before the Election Tribunal Vijayawada. His main contention in the O. P. was that he was not in arrears of profession tax as found by the Returning Officer while rejecting his nomination paper.
8. The petition was resisted by the 1st respondent on the ground that the appellant was in arrears of profession tax as was found by the Returning Officer.
9. The Election Tribunal, after a proper trial of the Election Petition, held that the appellant was not in arrears of profession tax as was alleged by the 1st respondent and found by the returning Officer. The Tribunal therefore allowed the O. P. set aside the election of the 1st respondent and directed re-election in Ward No. 33 of the Vijayawada Town.
10. It is to challenge the said order of the Election Tribunal that the present writ petition out of which this appeal arises was filed. One of the grounds which was raised before the learned single Judge was that the order dated 11-4-1969 of the Division Bench made in W. P. No. 1255 of 1969 operated as res judicata and consequently the Election Tribunal could not have tried and disposed of the Election Petition. The learned Judge accepted the contention and held that the said order of Division Bench operates as res judicata and consequently the Tribunal could not have gone into the question again and decided the Election Petition on merits. It is the view of the learned single Judge that is now assailed in this appeal.
11. Naturally the question whether the order of the Division Bench dated 11-4-1969 operates as res judicata or not was re-argued before us. It is now fairly settled that Section 11 of the Civil P. C. in terms does not apply to the instant case. The analogous or general principles of res judicata, however, admittedly apply. There are , however certain common essentialities for the application of Section 11 of Civil P.C. as well as the general principles of res judicata . The order or judgment which is said to operate as res judicata must have been given by a competent Court and it must be in any case a speaking order. It seems also to be fairly settled that in certain cases the order of dismissal of a Writ Petition in limine made under Article 226 of the Constitution without notice to the respondent. They operate as res judicata. The question is whether the instant case falls within the principle. The following decisions require consideration for correctly appreciating the statement of law made in that behalf.
12. The first case to be considered is Daryao v. State of U. P., : 1SCR574 .
13. In that case, their Lordships doubted whether the technical requirement prescribed by Section 11, Civil P. C., as to the competence of the first Court to try the subsequent suit would be an essential part of the general rule of res judicata. They, however, assumed that it is so applicable. The learned Judges found that the said test has been satisfied in that particular case. They then laid down the following proposition of law :
'..................... if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would, continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed in the High Court under Art. 226 is dismissed not an the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf , whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar: if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases in which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata.'
14. The next case we have to consider is the decision of the Supreme Court reported in Union of India v. Nanaksingh, : (1970)ILLJ10SC . The facts in that case were that Nanak Singh was holding the post of a Field Inspector in Custodian's Office as a temporary employee. Sri K. S. Kane, Additional Settlement Commissioner, who was also the Additional Custodian, terminated the employment of Nanak Singh, giving him one month's salary in lieu of notice. The order of Mr. Kanme was confirmed in appeal. Nanak Singh then moved the High Court of Punjab by a petition under Article 226 of the Constitution. Gurdey Singh, J., upheld the two contentions raised before him and allowed the writ petition. The matter was then carried in appeal before the Division Bench of the High Court. The High Court allowed the appeal. It was held no punishment was imposed on Nanak Singh. Regarding the authority of Mr. Kane to terminate the employment, the Court held that the second point was not before them because arguments have been advanced mainly on the first point, appeal can be disposed of. A Special Leave Petition filed before the Supreme Court was also rejected.
15. Nanak Singh thereafter filed a regular suit in a Subordinate Judge's Court. The suit was dismissed. On appeal the District Judge reversed the decree and declared that the order of Mr. Kane terminating the employment was void and inoperative, and that Nanak Singh was entitled to be treated as in service. The second appeal preferred against the said judgment was dismissed by Bedi, J. The learned Judge was of the view that the order passed in the writ petition did not operate to prevent Nanak Singh from reagitating the question about the authority of Mr. Kane to terminate his employment. On special leave the matter was re-urged before the Supreme Court.
16. The question considered by the Supreme Court was whether the Judgment of the High Court in the Writ Petition operated as res judicata in the civil suit. Although the Bench had not considered the point, the learned Judges observed that what operates as res judicata is the decision and not the reason given by the Court in support of the decision. The learned Judges then referred to Gulabchand v. State of Gujarat, : 2SCR547 and then observed that in their view the judgment in the previous case operates by express decision as res judicata. Shah, J., who spoke for the Court, said :
'It is true that in order that the previous adjudication between the parties may operate as res judicata, the question must have been heard and decided or that the parties must have an opportunity of raising their contentions thereon. In the present case, Gurdey Singh, J., dealt with the question in some detail and held that Mr. Kane had no authority to terminate the employment of Nanak Singh. The High Court in appeal thought that the appeal could be disposed of only on the first ground, and they recorded no express finding on the second ground. But once the appeal was allowed and the petition was dismissed, the dismissal of the petition operated as a rejection of both the grounds on which it was founded.'
In Virudhunagar S. R. Mills v. Govt of Madras, : 70ITR726(SC) it was held :
'Where a writ petition under Art. 226 is disposed of on merits and the order of dismissal of the petition is a speaking order, that would amount to res judicata and would bar a petition under Art. 32 on same facts, irrespective of whether a notice was issued to the other side or not before such decision was given. The petitioner's only proper remedy in such a case would be to come in appeal from such a speaking order passed on merits.'
17. What is plain from the said decisions is that if the Writ Petition is dismissed in limine on merits, then alone it would constitute as res judicata. What does that statement really mean and imply In order to correctly understand that observation, one must bear in mind the nature of the jurisdiction exercised by the High Court under Article 226 of the Constitution. It is right to say that such a jurisdiction is a supervisory jurisdiction intended for the purpose of keeping the tribunals within their bounds. The High Courts, in exercise of that power, does not act as an appellate Court. The distinction between the two is real and substantial. Thus when the said decision of the Supreme Court speaks of 'merits' it can only mean the grounds which are permissible for the purpose of exercising the jurisdiction under Art. 226. They must have been gone into and decided on merits. The points so decided would operate as res judicata. It is unimaginable that in a writ proceeding the High Court as an appellate Court would go into the appreciation of the evidence and then administrative tribunal unless it is a jurisdictional fact. It is only in this background that the above said observations of the Supreme Court have to be understood.
18. What follows is that even if a writ petition is dismissed in limitime by a speaking order and deciding the petition on merits in the above sense, it would operate as res judicata although no notice of the writ petition was served upon the other side and he was not given an opportunity of being heard.
19. In the light of these decisions what has to be been in the present case is whether the High Court in its order dated 11-4-1969 decided the petition on merits which would operate as res judicata.
20. We have already extracted the order of the Division Bench. On a careful reading of that order it would be seen that the first question which their Lordships considered was whether there was material before the Returning Officer and the Appellate Authority to reach the conclusion to which they had reached. The Bench came to the conclusion that both the Election Officer and the Collector on the statements before them could come to the conclusion to which they have reached and therefore it was thought that there was no error of jurisdiction or of law or violation of any principles of natural justice. In other words, in the exercise of supervisory jurisdiction, the High Court was merely interested in finding out firstly whether there was any material before the Returning Officer and secondly whether that material had nexus with the opinion which was formed on the said material. After having reached a conclusion that there was such material on which such an opinion could be reached, the learned Judges came to the conclusion that there was no error of jurisdiction and there was no violation of any law or principles of natural justice.
21. The learned Judges then considered the next argument that the Collector's order was mechanical and was the result of mala fides on his part, as it was brought about by the political pressure of Congress leaders. The learned Judges expressed the opinion that they cannot say that a prima facie case of bias was made out nor there any details given in the affidavit to show how influence was brought on the concerned officers, and that the allegations were vague. The learned Judges then referred to the assertions made by the appellant and observed that a mere allegation would not carry conviction when it is considered that the Bill Collectors would not have made self-incriminating statements.
22. It will immediately be plain that the learned Judges did not actually go into the evidence adduced before the Returning Officer. They could not have gone into the evidence at all. They did not give any express finding as to whether the appellant was or was not in arrears. They disposed of the writ petition obviously on grounds that the petition did not disclose any error of jurisdiction or violation of any law or principles of natural justice nor the petitioner made our prima facie any case of bias. The said judgment therefore cannot be said to be a judgment on the central factual question in the case, that is to say, on the question whether the appellant was in fact in arrears of profession tax or not. What follows therefore is that the questions considered and disposed of by the High Court within its supervisory jurisdiction constitute 'merits' within the meaning of the abovesaid three Supreme Court decisions. The decision on those points alone will operate as res judicata.
23. We are therefore not inclined to agree with the view that the said decision of the High Court is a decision on merits of the Central question arising in the election petition, that is t say whether the appellant was in fact in arrears of profession tax so as to disqualify him from contesting the election. Since the High Court has not given any decision on that question, it would not operate as res judicata. The points so decided, however, do not preclude the enquiry by the Election Tribunal on the question whether the appellant has been in arrears of profession tax or not.
24. Even otherwise it must be remembered that the High Court cold not have substituted its jurisdiction with that of the jurisdiction which the Election Tribunal under the Act had. What the High Court was doing was only to find out in the exercise of its supervisory jurisdiction whether the Returning Officer acted within his bounds. The High court was not the competent authority to decide finally any dispute regarding the qualification or disqualification of a particular candidate.
25. That jurisdiction has been specifically vested by the Municipalities Act in the Election Tribunal. No finality is attached to that of the Returning Officer or to the order of the appellate authority which hears appeals from the rejection or acceptances of nomination papers. This matter again admittedly can be gone into in an election petition. Merely because the order of the returning officer in regard to nomination paper was challenged in a writ petition under Article 226 of the Constitution. We fail to see how the remedy of election petition which is statutory available to a party can get barred by the operation off the principle of res judicata, particularly when the matter which is before the Election Tribunal has not and could not have been gone into by the High Court in a proceeding under Art. 226 of the Constitution arising out of the scrutiny of the nomination paper.
26. In Burma Shell Co. v. L. A. Tribunal of India, : AIR1957Mad60 it was held by Rajagopalan, J.
'Though the High Court in a writ petition holds that the decision of the Industrial Appellate Tribunal in the appeal preferred to it against an award is correct, that does not result in the substitution of the finding of the High Court for that of the Appellate Tribunal with its finding merges in the order of the High Court.
It is not the High Court that is the Court of Competent jurisdiction to decide an issue in an industrial dispute that jurisdiction being vested in the statutory tribunals. The plea of res judicata must, therefore, be rested only on the decision of the Appellate Tribunal and no on the order of the High Court.'
27. In Rex v. Governor of Brixton Prison, Savarkar Ex parte. (1910) 2 KB 1056 at pp. 1071 and 1072 the facts were that in a previous application, the only matter adjudicated upon by the order of the King's Bench Division, as drawn up, was that the order nosi for a habeas corpus should be discharged. It was held that such an order would not operate as res judicata so as to preclude the original application under Section 10 of the Fugitive Offenders Act. 1881.
28. Respectfully following these two decision. We have no manner of doubt in holding that the High Court's decision merely confines itself to find out the legality of the order of the Returning Officer. That, however, does not mean that the High Court's decision was on the Central question of fact, nor can it mean that the Election Tribunal, which has the statutory jurisdiction of going into that question arising our of election, is barred by the principle of res judicata. In the election petition, the issue whether the appellant was in arrears of profession tax or not can lawfully be gone into.
29. For both these reasons we hold that the Election Tribunal was competent to go into the question and to hold that the appellant was not in arrears of profession tax and therefore was qualified to stand for election, and the Returning Officer committed an error in rejecting the nomination paper. The Election Tribunal therefore was quite right in setting aside the election of the respondent and directing re-election in Ward No. 33 of Vijayawada Municipality.
30. Since no other contention was raised before us we would allow the appeal set aside the judgment of the learned Judge and dismiss the writ petition with costs. Advocate's fee Rs. 100/- in each Court.
31. Appeal allowed.