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1997 DIGILAW 92 (KER)

Saraswathi v. Kamala

1997-02-26

P.K.BALASUBRAMANYAN

body1997
Judgment :- Balasubramanyan, J. The revision petitioner was the successful candidate from Ward VI of Kumbadaje Grama Panchayat in the Panchayat Election held on 23.9.1995. One of the defeated candidates, respondent No.1 herein filed an Election Petition O.P. 9 of 1995 under S.88(b) of the Kerala Panchayat Raj Act, hereinafter called the Act, challenging the election of the revision petitioner. The revision petitioner raised objections to the Election Petition. Among the various objections, she also raised two preliminary objections regarding the maintainability of the Election Petition and sought a rejection of the Election Petition under S.93(1) of the Act. The two objections raised were that the Election Petition was not presented by the Election Petitioner (the present first respondent) in person as required by S.89 of the Act. The other was that there were allegations of corrupt practice in the Election Petition but the same was not supported by an affidavit as contemplated by S.91 of the Act and consequently, the Election Petition was not in accordance with S.89 of the Act. On the side of the Election Petitioner, it was contended in answer that there was no obligation on the petitioner to file an Election Petition in person and the presentation of the Election Petition by her counsel was sufficient compliance with the requirements of S.89 of the Act. On the second aspect, It was contended that the Election Petition was not based on any corrupt practice as contended by the successful candidate and therefore there was no need to file an affidavit as contemplated by S.91 of the Act. It was alternatively contended that failure to comply with S.91 of the Act was not fatal to the Election Petition so as to lead to its rejection under S.93(1) of the Act. 2. The Munsiff' s Court, which is the forum constituted for the trial of the Election Petitions upheld the objection that since the Election Petition was not presented by the election petitioner in person, the same was liable to be rejected. That court also came to the conclusion that the Election Petition did contain allegations of corrupt practice and consequently it ought to have been supported by an affidavit as contemplated by S.91 of the Act. The Munsiff s Court therefore, dismissed the Election Petition. 3. That court also came to the conclusion that the Election Petition did contain allegations of corrupt practice and consequently it ought to have been supported by an affidavit as contemplated by S.91 of the Act. The Munsiff s Court therefore, dismissed the Election Petition. 3. In view of the Explanation to S.93(1) of the Act, the Election Petitioner filed an appeal under S.113 of the Act before the District Court. That Court took the view that there was no obligation that an Election Petition under the Act should be presented by a candidate in person and that a presentation through counsel was sufficient compliance with the requirements of the Act. That court also held that the Election was not being challenged by the Election Petitioner on the ground of corrupt practices as clarified by counsel for the Election Petitioner and consequently, no affidavit as contemplated under S.91 of the Act was needed. In that view, it also overruled the contention on behalf of the returned candidate that the failure to serve a copy of the affidavit supporting the Election Petition would be a violation of S.89(2) of the Act leading to a rejection of the Election Petition under S.93(1) of the Act. It thus revised the order of the 'Munsiff Court and directed the Munsiff Court to try the Election Petition on merits. This decision of the District Court is challenged by the successful candidate in this revision. 4. Probably apprehending that an objection to the maintainability of the Civil Revision Petition under S.115 of the Code of Civil Procedure may be raised by the Election Petitioner, the returned candidate has also filed O.P. 15757 of the 1996 challenging the decision of the District Court. But, on the scheme of the Act, I find that the appeal is provided to the District Court, a court subordinate to the High Court within the meaning of S.115 of the Code of Civil Procedure. Whatever might be the status of the Munsiff s Court while dealing with an Election Petition, there cannot be any doubt about the appellate forum constituted by the Act and that forum is the District Court as is clear from S.113 of the Act. Whatever might be the status of the Munsiff s Court while dealing with an Election Petition, there cannot be any doubt about the appellate forum constituted by the Act and that forum is the District Court as is clear from S.113 of the Act. I am therefore, of the view that the decision rendered by the District Court in an appeal under S.113 of the Act is clearly revisable by this Court under S.115 of the Code of Civil Procedure. In that view of the matter, the Original Petition filed under S.226 of the Constitution challenging the decision of the Civil Court has to be held to be not maintainable since what is sought for is the issue of a writ of certiorari to quash the decision of the District Court. The Original Petition is therefore, dismissed as not maintainable. I have no hesitation in holding that the Civil Revision Petition under S.115 of the Code is maintainable and has to be decided on merits by this court. 5. Both the Munsiff Court and the District Court have held that the Election Petition was not personally presented by the Election Petitioner before the Ministerial Officer of the court. The election petitioner was the candidate at the election. She was hence competent to file an Election Petition under S.89 of the Act. While the Munsiff s Court took the view that the Election Petition should be presented by the candidate herself in person, the District Court has taken the view that no such insistence is warranted and what the Election Petitioner can do can be done by her representative or her counsel. While it is argued on behalf of the returned candidate that an Election Petition can be presented only by the candidate or voter in person and that alone will make the presentation a proper presentation, counsel for the Election Petitioner contended that there is no warrant for taking a rigid view on a reading of S.89 of the Act and in view of the Rules of procedure governing the filing of cases in the courts. 6. Before proceeding to consider these rival contentions, two aspects have to be taken note of. 6. Before proceeding to consider these rival contentions, two aspects have to be taken note of. It has to be noted that the provisions of the Act regarding the filing and prosecution of an Election Petition is in pari materia with the relevant provisions of the Representation of the People Act, 1950, and the decisions rendered under that Act too have relevance in deciding the question involved. The other aspect to be kept in mind is that the right to challenge an election is not a common law right but is only a right conferred by the Statute and in the very scheme of things a strict adherence to the requirements of the Statute has to be insisted upon. In Sathya Narain v. Dhujaram (AIR 1974 SC 1185), the Supreme Court after referring to the decision in Charanlal Sahu v. N and Kishore Bhatt (AIR 1973 SC 2364) observed. "It is well settled that it (the right to challenge an election) is a special right conferred under a self contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and the provisions of the Court are circumscribed by its provisions. It is not a common law right and an Election Petition cannot be equated with a plaint in a civil suit". The questions will have therefore to be decided with reference to the relevant provisions of the Act and the analogy of the filing of other matters in court cannot be of great help. Whereas the Munsiffs Court on the wording of S.89 of the Act took the view that the candidate or voter referred to in that Section meant the candidate or voter personally, the District Court took the view that the expression candidate or voter in S.89 of the Act did not necessarily confine the reference to the candidate or voter personally and especially in the context of the absence of the words 'personally', the normal rule of procedure governing the filing of a petition in court could be followed and an Election Petition presented by counsel on behalf of a candidate or voter or the clerk of the counsel could be considered as having been properly filed. 6. There is no aspect to be considered while considering the correctness of the view taken by the District Court. 6. There is no aspect to be considered while considering the correctness of the view taken by the District Court. This Co urt has held in Leela v. Pushpam (1996(2) KLT 350) that the Munsiff s Court while dealing with an Election Petition under the Act acts as Election Tribunal and if that be the correct position, how far the general rules regarding filing followed by the Civil Courts could be adopted would also be a question to be considered. 7. S.89 of the Act corresponds to S.81 of the Representation of the People Act. Though there is not much discussion of this question in the decision in Sheodan Singh v. Mohan Lai (AIR 1969 SC 1024) it was held in a case where the Election Petition was not presented by the candidate in person but the same was presented by the clerk of his Advocate but in his presence, the Supreme court stated as follows: "The High Court has found as a fact that the Election Petition was presented to the Registry by an advocate's Clerk in the immediate presence of the petitioner. Therefore, in substance though not in form, it was presented by the petitioner himself. Hence, the requirement of the law was fully satisfied." These observations do suggest that an Election Petition ought to be presented in person by a candidate or the elector under the Representation of the People Act. 8. This question arose directly before the Madhya Pradesh High Court in Ramanlal Premy v.Shiv Pratap Singh (ILR 1978 MP 569). The court came to the conclusion that the Election Petition was not presented by the Election Petitioner in person or in his immediate presence. The court then considered whether a presentation of the Election Petition by counsel not in the presence of the election petitioner was a valid presentation of the Election Petition. After referring to S.81 of the Representation of the People Act corresponding to S.89 of the Act and after referring to S.87 of the Representation of the People Act which corresponds to S.94 of the Act making applicable the Code of Civil Procedure for the trial of an Election Petition, the Madhya Pradesh High Court held that the Code of Civil Procedure could be invoked only where the Representation of the People Act or the Rules made thereunder made no specific procedural provision. But where the Act or the Rules provided particular procedure, the Code of Civil Procedure to the extent would stand excluded. It observed, "The manner of presentation of an Election Petition has been pro vided for in the Act itself and, therefore, any reference to the provisions of the Code of Civil Procedure in the matter of presentation of plaints or applications would be out of place". After noticing the observation of the Supreme Court that an election contest is not an action at law or a suit in equity but purely a statutory proceeding unknown to common law and that the court does not possess any common law power, the Court held that the presentation of an Election Petition ought to be made by the candidate himself. Though the words 'himself or 'personally' have not been incorporated in the body of the Section, the intention of the legislative was clear enough. 'The candidate at such election' particularised the person as such. If the legislative intended that the presentation could be done by an authorised agent, the provisions of O. Ill R.1 of the Code of Civil Procedure could have been specifically made applicable. The Court noticed the decision of the Supreme Court in Sheodan Singh's case and pointed out that in the case before the High Court the candidate was not even present when the Election Petition was presented. The Madhya Pradesh High Court therefore, dismissed the Election Petition as not properly presented. 9. In the present case, though this was the view adopted by the Munsiffs Court, the District Court reversed the Munsiff Court on the ground that in S.89 the word 'personally' was absent before the words 'any candidate' or 'elector' who was entitled to present an Election Petition. According to the District Court, the need to specify the candidate or elector arose only because the legislature wanted to clarify that the right was not available to all and sundry but is confined to a candidate at the election or an elector in the Constituency. Therefore, it could not be inferred from S.89 of the Act that the Election Petition must be presented in person by the candidate. 10. Therefore, it could not be inferred from S.89 of the Act that the Election Petition must be presented in person by the candidate. 10. In the light of the views repeatedly expressed by the Supreme Court that the right to challenge an election is a statutory right and strict compliance with the relevant provisions of the Representation of the People Act is to be insisted upon, I am inclined to the view that the approach made by the District Court to the question falling for decision is not correct. I may incidental notice that in this court where Election Petitions are entertained under the Representation of the People Act, the Election Petitions are presented in person by the candidates or the voters. This procedure followed in the High Court is also consistent with the object sought to be achieved by confining the right to challenge the election on a candidate at the election or an elector. The requirement that the Election Petitioner should take the full responsibility for what is averred in the Election Petition and consequently has also to attest each of the copies of the Election Petition to be served on the opposite side also emphasises the importance given by the Election Law to the participation of the Election Petitioner in the filing of the Election Petition. Normally, in our usual procedure, it would be sufficient of counsel attest the copies of the Election Petition as true copies. This also supports the approach that an Election Petition should be presented by the Election Petitioner in person. The District Judge has thought that since the court was concerned with the purity of the election, a technical argument of the nature attempted in the case by the returned candidate should not be accepted. At the same time, the court did not keep in mind the other aspect that an election is the expression of the will of the citizens and unless a challenge is made strictly in terms of the Act and a ground made in terms of the Act, the courts ought not to interfere with the expression of the will of the people. When these two aspects are balanced, I am inclined to the view that the view adopted by the Munsiff s Court is more consistent with the above principle. 11. When these two aspects are balanced, I am inclined to the view that the view adopted by the Munsiff s Court is more consistent with the above principle. 11. Learned counsel for the Election Petitioner contended that no rules have been framed under the Panchayat Raj Act and as per the Rules framed under the earlier Kerala Panchayat Act, there was no rule insisted on an Election Petition being presented in person by a candidate at the election or an elector. Learned counsel contended that in the absence of any specific rules framed under the Panchayat Raj Act 1994, the Rules in that behalf framed under the earlier Kerala Panchayat Act could be applied. He also pointed out that under the old Act presentation of an Election Petition by counsel wa§ sufficient. According to me, in view of the scheme of challenge to an election under the Act, the adoption of the provisions of the Representation of the People Act and taking note of the fact that the right is a special right conferred by the Statute, I am of the view that the position canvassed for by counsel for the Election Petitioner could not be accepted. I have therefore, to hold that an Election Petition under S.89 of the Act has to be presented in person by a candidate at the election or by an elector. I therefore, hold that there was no proper presentation of the Election Petition in the present case. 12. In view of the above conclusion, it is not necessary for me to consider whether there are allegations of corrupt practice on in the Election Petition and the Election Petition is bad for want of an affidavit in support of the Election Petition. In the result, I allow C.R.P. 2137 of 1996, set aside the order of the District Court in C.M.A. 17 of 1996 and dismiss O.P. 9 of 1995 as not maintainable on the ground that it was not presented in person by the Election Petitioner. I dismiss O.P. 15757 of 1996 on the' ground that it is not maintainable. In the circumstances of the case, I direct the parties to suffer their respective costs.