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1995 DIGILAW 17 (KER)

Devaki v. Kaveri Amma

1995-01-12

N.DHINAKAR

body1995
Judgment :- The petitioner was declared as a Member of Ward I of Paivalika Grama Panchayat in Kasargode Panchayat in the election conducted on 23.9.1995. The 1 st respondent in the O. P. filed a petition under Sec. 88(a) of the Kerala Panchayath Raj Act (for short 'the Act') before the Principal Munsiff, Kasargode on 29.9.1995 challenging the election of the petitioner on the ground that the counting of votes was not properly done. The said O. P. filed by the 1 st respondent was numbered as O. P. No. 6 of 1995 and notice was sent to the petitioner on the above said petition along with the copy of the election petition. 2. The petitioner on receipt of the notice in the election petition and the copy of the election petition filed an objection before the Principal Munsiff raising 3 points, namely: (1) that the Govt. have not notified the appropriate courts for dealing election cases after consulting the High Court as contemplated under Sec. 89(c) of the Act, and so the Principal Munsiff, Kasaragode, has no jurisdiction to deal with the election petition filed by the 1 st respondent; (2) that the election petition was not properly filed in terms of sub-sec. (2) of Sec. 89 of the Act as the 1st respondent did not attest the copies of the election petition under his own signature to be true copies of the petition; (3) that the election petition was not signed by the petitioner in O. P. No. 6 of 1995 in the manner laid down in the Civil Procedure Code and the petitioner did not sign the annexure or the schedule and verify the same in the same manner as in the petition. The Principal Munsiff, on consideration of the above three points dismissed the petition by his order under Ext. P3. This O. P. is in challenge of the said order. 3. Though three points, as stated earlier, were raised by the petitioner before the Principal Munsiff, counsel appearing for the petitioner before this Court gave up the 3rd point and confined his argument only to the first two points. As regards the first point it is to be stated that the Government in consultation with the High Court have issued a notification notifying the Principal Munsiff, Kasaragode, as the court to deal with election petitions. 4. As regards the first point it is to be stated that the Government in consultation with the High Court have issued a notification notifying the Principal Munsiff, Kasaragode, as the court to deal with election petitions. 4. The grievance of the petitioner that the said notification was not produced along with the election petition cannot be entertained as the stage for proving the notification was not reached. When the petitioner raised an objection, that there is no notification, the said notification was produced before the court and there is no dispute on this. In my view, the First contention of the petitioner has to fail and accordingly it is rejected. 5. Now let me consider the 2nd contention of the petitioner, namely, that the 1 st respondent did not attest the election petition under his own signature to be a true copy of the petition. I feel that there is some force in the contention of the petitioner. The Supreme Court in Sharif-ud-Din v. Abdul Gani Lone'(MR 1980 SC 303) while interpreting Sec. 89(3) of the Jammu & Kashmir Representation of the People Act (Act 4 of 1957), which provision is pari materia with the present provision under Sec. 89(2) of the Act, held that the requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non-compliance with that requirement should result in the dismissal to the petition. The contention that the provision is only procedural in character was negatived by the Supreme Court in the above said judgment and held that the object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition appear to be that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be a true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the petition after it is filed into court. Emphasising on the words "under his own signature" occurring in the Section the Supreme Court held that the copy of the petition should contain the signature of the petitioner himself and that the accusation by an advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature., The earlier judgment of the Supreme Court in Kama/am v. Dr. V. A Syed Mohammed (AIR 1978 SC 840) relied upon by the respondents in this O. P. was also considered by the Supreme Court in the above case and ultimately held that the provision requiring the petitioner to attest a copy of the petition under his own signature to be a true copy of the petition is mandatory in nature. In view of the judgment of the Supreme Court in Sarif¬ud-Din v. Abdul Gani (MR 1980 SC 303) I fee! that the contention of the petitioner has to be upheld and the order Ext. P3 of the Principal Munsiff has to be set aside on this ground. The contention of the counsel for the respondents is that an election petition can be filed within 30 days as contemplated under Sec. 89 of the Act and that the said petition was filed in time on 29.9.1995 after the results of the election were declared declaring the petitioner as the successful candidate on 28.9.1995. He would submit, that on receipt of the notice in the election petition and a copy of the election petition, the petitioner raised an objection on 6.10.1995 which was rejected by Ext, P3 -order on 21.10.1995 giving 3 days' time to the first respondent to cure the defects and the defects were cured immediately thereafter and hence the petition filed by the 1 st respondent was without any defect as the curing of the defects were done within 30 days from the date of the declaration of election results. 6. To buttress his argument the counsel relied upon certain observations of the Supreme Court made in Satya Narainv. Dhuja Ram & others (AIR 1974 SC 1185), wherein it was observed that the Registrar or Deputy Registrar of the High Court has no powers under the High Court Rules to permit correction or removal of defects in an election petition beyond the period of limitation. Dhuja Ram & others (AIR 1974 SC 1185), wherein it was observed that the Registrar or Deputy Registrar of the High Court has no powers under the High Court Rules to permit correction or removal of defects in an election petition beyond the period of limitation. In short, the counsel's contention is, that as the defects were allowed to be cured within 30 days, the petition filed is in order and the provisions of Sec. 89(2) are not violated. This contention of the 1st respondent cannot be accepted. 7. The facts emerge in the above case are totally different from the facts of the case on hand. In that case, the defects were cured before the copy of the petition was served upon the respondent, though belatedly and the apex court only stated that curing of the defects cannot be permitted beyond the period of limitation and not that it could be cured after the copies were served on the respondent. In this connection the following observations of the Supreme Court made in Sharif-ud-Dinv. Abdul Gani Lone (AIR 1980'SC 303) also are relevant: "We have no doubt that the records and documents in the custody of courts are taken due care of by the courts and the courts would not by themselves give any scope for tampering with them. But still experience shows that allegations are sometimes made that records in the court have been tampered with notwithstanding the care and caution taken by courts. Such allegations may not always be without basis. It is probably to obviate any scope for such an allegation being made or to protect the interest of the respondent, the Legislature thought of enacting sub-sec. (3) of Sec. 89 of the Act so that the respondent may rely on the copy served on him when he finds that the original documents in the court contains allegations different from those in the copy in his custody. A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself. A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself. The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature." Further the Supreme Court took the view that the requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non compliance with that requirement should result in the dismissal of the petition. It is not in dispute, on the facts of this case, that the copy intended to be served on the petitioner was actually served without the signature of the 1 st respondent. As it was served on the petitioner without the signature of the 1 st respondent I am of the view that the 1 st respondent did not file the election petition in terms of Sec. 89(2) of the Act. 8. Before parting with this case, I wish to place on record my appreciation of the fairness with which the counsel for the 1st respondent Mr. S. V. Balakrishna Iyer argued the case. 9. On the discussion made above, I feel, this O. P. has to be allowed and accordingly it is allowed. The proceedings in O. P. No. 6 of 1995 on the file of the Principal Munsiff, Kasaragode, stands dismissed.