M. I. SHANAVAS v. RETURNING OFFICER — 1987 DIGILAW 453 (KER)

Judgment :- 1. Petitioner who contested in the Kerala State Legislative Assembly elections in the Vadakkekara Legislative Assembly Continuency challenges the election of the 4th respondent who has been declared elected by the Returning Officer. Respondents 2,3 and 5 to 8 are the candidates who contested the election unsuccessfully. First respondent is the Returning Officer. 2. The election was held on 23-3-1987. Petitioner was the candidate of the Indian National Congress (I) party. 4th respondent was the candidate of the Communist Party of India (Marxist). 6th respondent belonged to the Bharathiya Janata Party. Others contested as independents. The allegation in the petition is that most of the counting staff belonging to the N.G.O. Union affiliated to the CPI(M) intentionally manipulated the counting so as to inflate the number of votes in favour of the 4th respondent and to the detriment of the petitioner, that when the ballot boxes were taken up for counting the seal of the ballot box of Booth No. 16 was found to be tampered with, that the petitioner's Chief Election Agent raised objection and requested to prepare a mahazar regarding the tampered condition of the ballot box, and that the first respondent refused to heed to the request. Another contention is that the 4th respondent, his agents and his partisans with his knowledge and in violation of S.19 of the Representation of People Act 1950 and Art.326 of the Constitution of India managed to include in the Electoral Roll more than 1000 persons as electors who have not completed 21 years of age. Petitioner seeks re-counting of all the ballot papers of the constituency and re-determine the number of votes secured by each candidate, to re-scrutinise the disputed ballot papers and determine properly the votes secured by each candidate out of the said disputed ballot papers, to exclude the votes cast by voters who have not really completed 21 years of age on the qualifying date viz. 1-1-1987 and to declare the election of the 4th respondent void and to declare the petitioner as duly elected from the Vadakkekara Constituency. 3. Except the 4th respondent others are set exparte. 4th respondent filed preliminary objection denying the averments in the petition that he, his agents and his partisans managed to include in the Electoral Rolls more than 1000 persons as electors who have not completed 21 years of age. 3. Except the 4th respondent others are set exparte. 4th respondent filed preliminary objection denying the averments in the petition that he, his agents and his partisans managed to include in the Electoral Rolls more than 1000 persons as electors who have not completed 21 years of age. He challenges the very maintainability of the election petition on the ground that the petitioner failed to furnish the certificates referred to in the election petition. 4th respondent contends that the failure to furnish copy of the list mentioned in the election petition makes the averments incomplete and the failure to do so amounts to non-compliance of S.81(3) of the Act. 4. S.83 provides that an election petition shall contain a concise statement of the material facts on which the petitioner relies and shall set forth full particulars of any corrupt practice alleged, 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. The petition shall be signed by the petitioner and verified by him in the manner laid down in the CPC for the verification of pleadings. S.83(2) states that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. S.86 provides for the trial of the election petition. S.86(1) envisages that the High Court shall dismiss any election petition which does not comply with the provisions of S.81 or S.82 or S.117, S.81(3) provides that every election petition shall be accompanied by as many copies thereof as there are respondents in the petition and every such copy shall be attested by the petitioner, under his own signature to be a true copy of the petition. 5. Contention of the 4th respondent is that the election petition is liable to be dismissed under S.86(1) of the Act in as much as the copy of the election petition furnished to him does not contain specific averments regarding those persons who exercised franchise rights while they bad not completed the age of 21 years. 5. Contention of the 4th respondent is that the election petition is liable to be dismissed under S.86(1) of the Act in as much as the copy of the election petition furnished to him does not contain specific averments regarding those persons who exercised franchise rights while they bad not completed the age of 21 years. It is stated in the petition that the details of persons whose particulars now available out of the said more than 1000 persons who are illegally included in the electoral roll and who have exercised votes in favour of the 4th respondent will be given in a separate list. Contention of the 4th respondent is that the failure to furnish the copy of the aforesaid list makes the averments in the petition incomplete and the failure to do so amounts to non-compliance of S.81(3) of the Act. Counsel relied on Karunantdhi v. H. V. Hande (AIR 1983 SC 558) where the Supreme Court held that the failure to furnish with the election petition a copy of the documents referred to in the petition, without which the averments made in the petition would be incomplete, would amount to failure to present the petition in accordance with the relevant provisions of the Act and therefore the election petition is liable to be dismissed summarily. The mandatory requirements in S.81(3) are in two parts. The first part provides for the number of copies that are to be accompanied with the election petition and the second part relates to the manner in which such copies shall be attested under the petitioner's signature to be a true copy of the petition. Counsel for the petitioner submitted that the certificates mentioned in the election petition will be produced when evidence is taken in the case and hence the failure to produce it along with the election petition is not fatal. It is also contended that S.83(1) (a) which requires setting out full particulars relates only to cases where corrupt practice is alleged and not to a case where such allegation is not there. 6. The question that has to be considered is as to whether the election petition would be complete without such details, at least of so much details as the petitioner bad with him at the time of presentation of the petition. 6. The question that has to be considered is as to whether the election petition would be complete without such details, at least of so much details as the petitioner bad with him at the time of presentation of the petition. The preliminary issue turns on the crucial point as to whether the allegation in the petition that more than thousand voters who bad not attained 21 years of age voted at the polls would form an integral part of the election petition or whether the details of which could be adduced in evidence during the trial of the case. It is well settled in Sahodarabai's case (AIR 1963 SC 1079) that S.83(2) applies to any schedule or annexure to the petition which is an integral part of the petition and not to documents which are merely evidence in the case. 7. Admittedly the petitioner has with him details regarding certain persons who without attaining 21 years of age had voted in the election: Even those details are not revealed in the petition. The very basis of the allegation in the petition is that more than 1000 persons exercised franchise when they have not attained the right to vote as they had not reached the age of 21 years. This would form an integral part of the petition. The failure to disclose necessary details about it especially in view of the fact that the petitioner admittedly has with him such necessary details with regard to some of them it cannot be said that those materials can be later produced as evidence. In a case where details of averments are far too many that it may not be possible to mention it in the election petition the petitioner can very well set out it in the schedule or annexure to the petition. 8. It is the definite case of the petitioner that the 4th respondent, his agents and partisans with his knowledge managed to include in the electoral roll more than 1000 persons as voters who have not completed 21 years of age in violation of S.19 of the Representation of People Act 1950 and Art.326 of the Constitution of India. It is alleged that the said persons were included in the electoral roll illegally and against the provisions of the Act and Constitution of India. It is alleged that the said persons were included in the electoral roll illegally and against the provisions of the Act and Constitution of India. In the petition it is further stated that details of the persons of whose particulars now available out of the said more than 1000 persons who are illegally included in the electoral roll and who have exercised votes in the poll on 23-3-1967 in favour of the 4th respondent will be given in a separate list. Thus it can be seen that the petitioner has admitted that details of such persons, who illegally exercised votes, were available with him. As those details were available with him and as it forms an integral part of the election petition the failure to produce the same along with the petition is fatal. 9. In the petition it is further stated that the petitioner tried his best to get the age certificates of all the above said electors but be could get the certificates relating to 98 electors only and the Headmasters of the other schools refused to issue certificates with respect to the remaining electors included in the above said lists. The above said list was not produced along with the election petition. The failure to produce the above list is highly detrimental to the election petition. 10. The failure to furnish the copy of the list makes the averments in the petition incomplete. The failure to do so amounts to non-compliance of S.81(3) of the Representation of the People Act, 1950. As the list and certificates referred to in the petition are integral parts of the election petition and not merely pieces of evidence the failure to furnish the copies of the list and certificates amounts to failure to present the petition in accordance with the mandatory provisions of the Act. in M. Karunanidhi v. H. V. Hande (1983 (2) SCC 473) : (AIR 1983 SC 558) the Supreme Court held as follows: "In the present case the photograph was a part of the averment contained in Para.18(b) and an integral part of the election petition and not merely a piece of evidence as to the nature and type of fancy banner erected by the appellant. In the absence of the photograph the averment contained in Para.18(b) would be incomplete. In the absence of the photograph the averment contained in Para.18(b) would be incomplete. Therefore, the election petition must be dismissed summarily under S.86(1)." In the case in hand the petitioner has failed to furnish the copy of the list of persons who are alleged to have been illegally included in the electoral roll and exercised votes in the poll on 23-3-1987. He has also failed to produce copy of the certificates mentioned in the petition. The failure to do so amounts to non-compliance of S.81(3) in as much as they form an integral part of the election petition. In the result the election petition is dismissed under S.86(1) of the Representation of the People Act, 1950. There is no order as to costs.