Judgment :- Sreedharan, ag. C. J First respondent in O. P. No. 17696/95 is the appellant. She was declared Member of Ward I of Paivalika Grama Panchayat in Kasaragod Panchayat in the election conducted on 23.9.1995. First Respondent in the Original Petition filed a petition under S.88(a) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the act) before the Principal Munsiff, Kasaragode challenging the election of the petitioner on the ground that the counting of votes was not properly done. That election petition was numbered as O. P. 6/95. Notice was sent to the petitioner on the above said petition along with a copy of the petition. Petitioner in the Original Petition filed her objection to the election petition raising three points. (1) Government had not notified the appropriate courts for dealing with election cases after consulting the High Court as contemplated under S.89(c) of the Act and hence the Munsiff s Court had no jurisdiction to deal with the petition; (2) that the election petition was not properly filed in terms of S.89(2) in as much as the copies of the election petition were not attested by the petitioner under her own signature to be true copies of the petition and (3) that election petition was not signed by the petitioner in O. P. No. 6/95 in the manner laid down in the Code of Civil Procedure and Annexure and schedule were not verified and signed in the manner prescribed by the Code. 2. Before the Principal Munsiff s Court counsel submitted arguments on the first two points and they gave up the third point mentioned above. On the first point the Court came to the conclusion that it was notified as competent court for dealing with the election petitions in consultation with the High Court and so that Court has jurisdiction to entertain the petition. On the second contention that the petitioner in the election petition did not attest the election petition under her own signature, the learned Munsiff took the view that the failure on the part of the petitioner to attest the election petition under her own signature to be true copies of the election petition is not fatal and that it is a curable defect. Accordingly, the learned Munsiff gave three days time to the petitioner in the election petition to cure the defect.
Accordingly, the learned Munsiff gave three days time to the petitioner in the election petition to cure the defect. This view taken by the learned Munsiff was challenged in the Original Petition. Learned single judge upheld her contention that the defect in the election petition was fatal and that cannot be cured. That decision is under challenge. 3. Identical provision as is contained in S.89(2) of the Act is enacted in S.89(3) of the Jammu & Kashmir Representation of the People Act (Act 4 of 1957). Dealing with the provision, their Lordships in Sharif-ud-Din v. Abdul Gam Lone (AIR 1980 SC 303) 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 of the petition. according- to their Lordships, the object of requiring the copy of an election petition should be attested by the petitioner under his own signature to be a true copy of the petition is 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 to the court. That decision holds the field as far as the form of the petition in an election dispute is concerned. 4. S.89(2) of the Act makes it obligatory on the part of the petitioner in every election petition to furnish as many copies thereof as there are respondents mentioned in the petition for service on them. Such copies should be attested by the petitioner under Ms own signature be a true copy of the petition. This provision has a solemn object. The object is to make the petitioner in the election petition responsible for all the averments made by him in the petition. The copies of the election petition filed along with the original before court should be made available to be respondents at the shortest possible time. It is for ensuring the correctness of the petition. In other words, this is to avoid subsequent alterations and manipulations in the petition.
The copies of the election petition filed along with the original before court should be made available to be respondents at the shortest possible time. It is for ensuring the correctness of the petition. In other words, this is to avoid subsequent alterations and manipulations in the petition. Since the said requirement is meant to avoid possibility of tampering with the petition and to make the petitioner responsible for what has been stated therein, the said requirement must be regarded as mandatory. Where a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right, according to their Lordships, that provision must be regarded as mandatory. Violation of a mandatory requirement entails avoidance. Provision contained in S.89(2) of the Act deals with the form of the petition which is mandatory. If election petition filed before court is not in conformity with the said form, then that election petition has only to be dismissed without going into the merits or contentions raised therein. 5. Election petition should comply with the form. It should also contain the contentions raised by the petitioner for setting aside the election. The contentions so raised by the petitioner in the averments can be treated as contents. The contents of an election petition may be open to amendment as provided in the Act. Those provisions relating to amendment of the contents of the petition cannot apply to the form of petition. When the petition as on date of filing is not in conformity with, the form. then that petition has only to be dismissed. No opportunity can be given to the petitioner to carry out amendment of the form to make it in conformity with the statutory requirement, 6. Learned counsel representing the petitioner raised a contention that the first respondent in this case raised contention regarding the non-compliance with the provisions contained in S.89(2) of the Act, within 30 days period fixed for filing the application. In such a situation, appellant should have been allowed to withdraw the petition and to file a new petition within the period fixed by the Act in compliance with the provisions contained in S.89(2) of the Act.
In such a situation, appellant should have been allowed to withdraw the petition and to file a new petition within the period fixed by the Act in compliance with the provisions contained in S.89(2) of the Act. Learned counsel for the appellant, it is argued made an oral request to the trial court to allow the petitioner to withdraw the petition since 30 days period fixed for filing the petition was not over. Had that request been granted, according to counsel, the defect could have been remedied and a proper petition filed. We do no find our way to accept this submission. If an election petition happened to be one filed in violation of the form prescribed by the Act, that cannot be allowed to be withdrawn for a proper one to be filed within the time fixed for filing the same. A petition under S.89 can be withdrawn only as per the provisions contained in Ss.108,109 and 110 of the Act. Appellant did not want to invoke the provisions of those sections to withdraw the election petition filed by her. Her prayer was to withdraw the petition to enable her to file a proper petition in conformity with S.89(2) of the Act We do not find any legal ground to support such a plea. A petition filed under S.89 should comply with all the requirements of that Section. If the petition fails to comply with all the requirements of that Section, that petition entails dismissal. It cannot be allowed to be withdrawn for enabling the petitioner to file a proper petition in conformity with the provisions contained in S.89(2). Provision contained in S.89(2) is too technical, but technicalities have to be strictly complied with by the petitioner, if the petition is to be taken on file. In the instant case, it is the admitted case of the parties that the appellant who was the petitioner before the learned Munsiff did not attest the copies of the petition under her own signature to be true copies of the petition. Therefore, that petition was not maintainable. The view taken by the learned single judge is perfectly legal and calls for no interference. The Writ Appeal fails. It is accordingly dismissed.