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2001 DIGILAW 410 (KER)

Appukuttan v. Bijukumar

2001-07-31

R.BHASKARAN

body2001
Judgment :- R. Bhaskaran, J. The elected candidate in a Block Panchayat Election held on 25.9.2000 is the petitioner in this revision. The 1st respondent filed the election O.P. by stating that there was corrupt practice in the counting process. According to the first respondent, at the time of counting, he had secured one vote more but later it was made to appear that both of them got equal votes and on the basis of toss the petitioner was declared elected. There are various other allegations with regard to what happened at the time of counting and it is unnecessary to go into those details in this revision as the revision is concerned only with the order of the District Court passed on the preliminary finding on maintainability of the Original Petition. 2. The first point that was pressed before the District Court against the maintainability of the O.P. was that the copies of the petition served on the respondent is not in accordance with S.89(2) of the Kerala Panchayat Raj Act. That provision reads as follows: "89(2). Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned 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". Admittedly, the first respondent has produced as many copies of the election petition as there are respondents. On the foot of each and every page of the copy served on the petitioner, it is written as "true copy" and is signed by the 1st respondent. It is not written as "certified to be a true copy of the petition" in every page of the copy served on the petitioner. The District Court found that when the first respondent wrote "true copy" and signed on the foot of every page it amounts to attestation as no particular form of attestation is prescribed in the Act or Rule. 3. The learned Senior Counsel Shri. K. Sudhakaran relied on the decision of the Supreme Court reported in Rajendra Singh v. Usha Rani (AIR 1984 SC 956) and contended that failure to comply with the provisions is fatal to the election petition and there is no question of giving the benefit of doubt to the first respondent. 3. The learned Senior Counsel Shri. K. Sudhakaran relied on the decision of the Supreme Court reported in Rajendra Singh v. Usha Rani (AIR 1984 SC 956) and contended that failure to comply with the provisions is fatal to the election petition and there is no question of giving the benefit of doubt to the first respondent. In that case admittedly the petitioner had supplied two sets of copies of election petition; one set of corrected copies and the other set containing vital omissions. The Supreme Court found that what was served on the respondents was the one containing vital omissions and in such circumstances it was held the election petition was not maintainable. The facts of this case are entirely different. S.89(2) of the Panchayat Raj Act is a verbatim reproduction of S.81(3) of the Representation of People Act. In Ch. Subba Rao v. Member, Election Tribunal (AIR 1964 SC 1027), a Five Member Bench of the Apex Court had occasion to consider the question as to when S.81(3) of the Representation of People Act can be said to be complied with substantially. In that case even the words "true copy" was not written before the signature of the petitioner in each copy, Only the following requirements were complied with. (1) The petition has been accompanied by the requisite number of copies, (2) The copies that accompanied the petition were true copies, and (3) Each of those copies bore the signature of the petitioner. 4. The Supreme Court held that there was substantial compliance and that the election petition could not be thrown out on the ground of maintainability. This Court has followed the above decision in the decisions reported in Harischandra v. S.K. Mohammed & Ors. (1996 (1) KLJ 591) and in Wilsakumar Dennison v, Thampanoor Ravi (1997 (2) KLT SN page 67 Case No. 69). In the light of the authoritative pronouncements as mentioned above, the finding on first point discussed by the District Court is perfectly correct. 5. The second objection is with regard to the non-supply of the copy of the affidavit along with copy of the petition. It is found by the District Court that the 1st respondent presented the Election Petition with all the enclosure which included the affidavit and copies in open court and the Chief Ministerial Officer was asked to verify the same and no defect was noted. It is found by the District Court that the 1st respondent presented the Election Petition with all the enclosure which included the affidavit and copies in open court and the Chief Ministerial Officer was asked to verify the same and no defect was noted. There is nothing to suspect the verification. Therefore, it is found that the second objection is also not maintainable. But by way of abundant caution the court has directed additional copy of the affidavit to be served on the petitioner. In the light of the finding, it is not necessary to consider the question as to whether non-compliance with S.91(c) is fatal or not. Even this aspect of the " matter is no longer res Integra in view of the decision of the Supreme Court in Mallikarjunappa's case which will be adverted to while considering the next point. 6. The third and the last point raised by the petitioner was with regard to payment of court fee. Admittedly, first respondent had paid only a court fee of Rs. 107- at the time of filing the election petition and the correct court fee payable under the Kerala Court Fees Act is Rs. 25/-. When the petitioner disputed the correctness of the Court fee paid, the first respondent filed LA. No. 565 of 2001 for enlargement of time for payment of court fee and has paid the balance court fee also. 7. The contention of the petitioner is that without payment of the correct court fee payable, there is no proper election petition in the eye of law and it is not a curable defect. This question was considered by this Court in the decision reported in Radhakrishna Filial v. Sasidharan Nair (1983 KLT 551) and it was found that the Court has got the discretion to allow the petitioner to pay the deficit court fee at any stage of the proceeding. 8. S.94 of the Panchayat Raj Act says that the election petition shall be tried in accordance with the procedure applicable under the Code of Civil Procedure. It cannot be disputed that the Court has ample power under the Code of Civil Procedure to give time for payment of deficit court fee. Apart from S.149 of the Code of Civil Procedure, 0. It cannot be disputed that the Court has ample power under the Code of Civil Procedure to give time for payment of deficit court fee. Apart from S.149 of the Code of Civil Procedure, 0. 7, R.11 specifically provides for the rejection of plaint only if the plaintiff fails to produce the deficit stamp paper on being required by the Court to supply the same. 9. Even assuming that the above provisions are not applicable, the petitioner's contention is liable to be rejected for another important reason. It is S.93 of the Panchayat Raj Act that mandates the Court to reject an election petition at the threshold. That can be done only if the petitioner does not comply with the provisions of Ss.89, 90 or S.115 of the Act. There is no case for the petitioner in this revision that the first respondent has not complied with any of the above provisions except on the first point already discussed. In Mallikarjunappa v. Shammanur Shivashankarappa (AIR 2001 SC 1829), similar provisions in the Representation of People Act were interpreted and it was found that under S.86(1) of the Representation of People Act in liminie dismissal of the election petition is possible only if either of the provisions of S.81 or 82 or 117 is not complied with. The corresponding provisions in the Panchayat Raj Act are Ss.89, 90 and 115. It is stated that non filing of an affidavit as prescribed under S.83(1) along with an election petition does not attract the consequence under S.86(1) of the Act. 10. In the light of the above discussion, I do not find any reason to admit this revision and delay the trial of the election petition which is expected to be disposed of on merit within six months of its presentation as is provided under S.93(5) of the Act. The C.R.P. is therefore dismissed.