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2000 DIGILAW 162 (KER)

Vikraman Unnithan v. Koshy M. Koshy

2000-03-14

M.R.HARIHARAN NAIR

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Judgment :- M.R. Hariharan Nair, J. The petitioner is the returned candidate from Ward No. 8 of Thazhakkara Village in the Panchayat Elections held in 1995. O.P. 6/1995 was filed before the Election Tribunal (Munsiff, Mavelikkara) by the first respondent herein challenging the validity of the election. As per order dated 14.10.1997 the Election Tribunal accepted the contention of the present revision petitioner who was first respondent in the O.P. that the O.P. was not properly presented and dismissed the same under S.93(1) of the Panchayat Raj Act. The present first respondent thereupon took up the matter before the District Judge, Alappuzha who is the designated authority to hear appeals with regard to election matters. As per the impugned order the learned District Judge allowed the appeal and found that the election petition was properly filed and directed the Election Tribunal to proceed with the petition in accordance with law. 2. The learned counsel for the revision petitioner placed reliance on S.89(1) Panchayat Raj Act which insists that election petitions should be presented in person. I was also taken through the decision reported in Saraswathy v. Kamala & Ors. (1997(1) KLJ 450) in that regard. According to the learned counsel, the failure on the part of the Chief Ministerial Officer to record that the petition was presented in person by the party of counsel is material. The counsel also took me through the certified copy of the petition obtained from the Election Tribunal to show that even the signature of the present first respondent appearing on the front page (docket) of the petition is a subsequent interpolation and that this reveals an attempt on the part of the first respondent to make out that he was actually present in Court. The learned counsel further submits that the observations in the judgment of the Court below that presumption is available in favour of the present first respondent is absolutely unjustified and that independent evidence should have been allowed to be taken in the matter. 3. The learned counsel for the first respondent, on the other hand, submitted that in the absence of specific Rules in the C.R.P. akin to the Rr. 3. The learned counsel for the first respondent, on the other hand, submitted that in the absence of specific Rules in the C.R.P. akin to the Rr. 207 to 219 of the High Court Rules, the Chief Ministerial Officer was not bound to take extra effort to record anywhere that the petition was presented by the petitioner or his counsel in person and that as per the existing Rules available under the Civil Rules of Practice he has made whatever entries that were expected and necessary. 4. S.89(1) of the Kerala Panchayat Raj Act provides that election petitions are to be presented to the appropriate court as specified in S.88 'by the candidate' and S.89(2) insists that the petitions and copies 'shall be attested by the petitioner under his own signature'. 5. In Saraswathy v. Kamala and others (1997(1) KLJ 450) this Court went into the question as to whether the petition should be presented by the candidate or by an elector in person and whether presentation by a counsel is not sufficient. The Court took note, of the decision in Sheodan Singh v. Mohan Lai (AIR 1969 SC 1024) which held the -view that presentation by the petitioner's advocate's clerk in his presence can be taken as proper presentation though 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. The petition filed in the particular case was found to be not properly presented. 6. In the instant case the docket of the petition as available in Court shows the name of Advocate K. Radhakrishnan Nair and near the portion where the Court's seal acknowledging receipt of the petition on 20.10.1995 is affixed, the signature of the petitioner therein namely, 'Koshy M. Koshy' is also available. Even though the learned counsel for the revision petitioner tried to argue that the said signature appearing at the docket portion is different from his signatures in the other pages of the petition, I am not convinced of that fact. There is no striking dissimilarity and merely because the size of the signature and the colour of the inks or pens used are different, it is not safe to find that the signature is not that of challenging candidate viz. the present first respondent. 7. There is no striking dissimilarity and merely because the size of the signature and the colour of the inks or pens used are different, it is not safe to find that the signature is not that of challenging candidate viz. the present first respondent. 7. A photocopy of the Civil Register No. 31 wherein details of presentation were recorded by the office of the Munsiff's Court has been produced before this Court along with C.M.P. No. 1989/1998 and a verification of the details pertaining to serial No. 4443 shows that the particular O.P. was presented by K.R.K. Nair (shorter form of the name of his Advocate K. Radhakrishnan Nair) and that the documents presented along with the petition included the valakath of that counsel as well. In these circumstances, it is not possible to find, prima facie, that the petition was not presented by the said person or by his Advocate in the presence of the present first respondent. Of course a conclusive finding as to what exactly transpired on the particular day and whether the signature of the first respondent was actually made in the docket portion at the time of presentation and whether he was also present at the time is a matter which can be decided only after collection of oral evidence. Suffice it to say that as things stand now, on the materials available before Court, it is not possible to conclude that there was no presentation of the petition in the presence of the first respondent. Viewed from this perspective I am of the view that there is no merit in the revision petition. The finding of the District Judge that the petition is liable to be proceeded with on the merits is confirmed. 8. The above finding need not be an end to the controversy in question. When the petition is tried, there will be sufficient opportunity for both sides to adduce evidence with regard to the manner in which the petition was presented. Such opportunity may even include examination of the Chief Ministerial Officer or others present in Court's office at the time of presentation of the petition. However, such evidence need not form the basis of a preliminary finding with regard to maintainability. Along with all other contentious issues this aspect may also be looked into by the Election Tribunal when the final decision is given. However, such evidence need not form the basis of a preliminary finding with regard to maintainability. Along with all other contentious issues this aspect may also be looked into by the Election Tribunal when the final decision is given. In other words, the Revision Petitioner shall not have the right to rake up the question of maintainability of the petition again as a preliminary issue after parties go to evidence though decision on the question of maintainability can also be challenged as part of the challenge to the final decision in the election petition. 9. Controversies of the present nature can be minimised if not completely stopped, through appropriate changes to the Civil Rules of Practice. As rightly pointed out by the learned counsel for the first respondent, specific Rules with regard to the manner in which election petitions are to be received, processed and accounted for have to be included in the Civil Rules of Practice on the lines of Rr. 207 to 219 of the Kerala High Court Rules. There was no necessity for such provisions earlier because under the Kerala Panchayat Act which preceded the Kerala Panchayat Raj Act 1994, it appears, there was no necessity for presentation of proceedings in person. I direct the Registry to take up this matter on the administrative side so that appropriate Rules can be introduced through amendment if so found fit. 10. More than four and a half years have elapsed after the election took place and the term of the returned candidate is to run out very shortly. In the circumstances, it is very necessary that top most priority is given for disposal of the election petition by the Election Tribunal. The Registry will see that the records concerned are transmitted to the Election Tribunal with utmost expedition. C.R.P. is disposed of as above.