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2001 DIGILAW 444 (KER)

Vijayaraghavan v. Girija Surendran

2001-08-14

M.R.HARIHARAN NAIR

body2001
Judgment :- M.R. Hariharan Nair, J. At the instance of the first respondent in the E.P., Issue No.1 raised in the case are heard as a preliminary point. The said issue reads as follows: "Whether the E.P. is liable to be dismissed on the ground of want of essential particulars." 2. The challenge in the petition is with regard to the election of the first respondent from No. 46 Sreekrishnapuram Assembly Constituency to the Kerala Legislative Assembly, polling of which was held on 10.5.2001 and the result declared on 13.5.2001. The petitioner in the election petition lost by 21 votes. 3. The case set out in the election petition is that there was improper reception of 80 votes which went in favour of the 1st respondent besides refusal to accept 147 votes which were offered, on the ground that their names were struck off from the voters list. Yet another allegation is that there was double voting by two persons. The defect pointed out by the 1st respondent is that the details of the voters under the first two heads are given only in the annexures. According to him, the petition is not maintainable not only because the details mentioned in Annexures are not given in the petition itself, but also because new grounds have been attempted to be brought in through an amendment, which is inadmissible. The first respondent also points out that it was incumbent upon the petitioner to state in the petition the source of information with regard to the allegations in the petition and that the absence thereof is a material defect which not only justifies, but also warrants rejection of the election petition. The learned counsel also relied on case law in support of his contentions. 4. Mr. Ramakumar, who appeared for the petitioner, submitted that all necessary particulars have been included and that the annexures very much form part of the pleadings in the case. According to him, dismissal of a petition is possible only under S.86 and that will be possible only where there is failure to comply with the provisions in Ss.81, 92 and 117 of the Act. 5. In answer to the respondents' contention that strict application of Rule of pleadings and divulging of source of requirements is essential, it is pointed out that the particulars can always be supplied later. 5. In answer to the respondents' contention that strict application of Rule of pleadings and divulging of source of requirements is essential, it is pointed out that the particulars can always be supplied later. As regards the amendment the argument is that through para 1 l(a) no additional ground is invoked by the petitioner and that the amendment also has been allowed within the limitation period and before summons was ordered to the respondents. In other words, the summons directs the 1st respondent to answer the amended claim only. 6. I shall now consider the respective contentions. In para 4 the contention is that 80 voters, whose names and particulars are given in Annexure A are those deleted from the marked electoral roll used at the time of polling by the Polling Officers and inspite of this they were permitted to vote. The improper reception of the said 80 votes in favour of the first respondent is pleaded to have materially affected the election result. 7. I fail to see how the petition is defective when full details of all the 80 voters including the polling booths concerned are given in Annexure A to the petition. It is argued by the 1st respondent based on Samant N. Balakrishna v. George Fernandez & Ors. (AIR 1969 SC 1201) that there is a difference between material facts and particulars and that all the material facts have to come in the body of the petition itself. Material facts have to be included in the petition; but the particulars may be in schedule. It is inconceivable that a petition could be filed without material facts. The entire and complete cause of action must therefore be in the petition in the shape of material facts. The particulars are the further information which would complete the picture. The said observations were made in a case where there was allegation of corrupt practice which were mentioned only in the schedule. In the instant case there is no allegation of corrupt practice and that makes all the difference. That apart, the law in the matter also appears to have undergone some change over the years. 8. In H.D. Ravanna v. V.G. Puttaswamy Gowda & Ors. In the instant case there is no allegation of corrupt practice and that makes all the difference. That apart, the law in the matter also appears to have undergone some change over the years. 8. In H.D. Ravanna v. V.G. Puttaswamy Gowda & Ors. (AIR 1999 SC 768) relied on by the petitioner it was found that S.86 which provides for dismissal of an election petition in limine, does not refer to S.83 and that non-compliance of S.83 cannot lead to dismissal. It was also found that any defect in verification of the election petition or in the affidavit accompanying the election petition is curable and not fatal. Non-compliance of S.83 may lead to dismissal of the petition only if the matter falls within the scope of 0.6 R.16 or 0.7 R.11 of the CPC. 9. The direction in Malaya Singh Yadav v. Dharma Yadav & Ors. (JT 2001 (5) SCC 598) also goes in favour of the petitioner. It was held therein that a schedule to the petition is an integral part of the election petition itself. The failure to produce the original video cassette, which was mentioned as an item in the schedule, was held to be fatal to the said reason. Viewed from the said perspective it can be seen that the annexures to the present election petition which have been duly signed and verified by the petitioner and his counsel very much form part of the pleadings and if that is so, there is proper and adequate pleadings available in the case. It is not pointed out that the details in Annexure A are in any way insufficient for want of clarity or particulars and the argument is only that the same details should have been incorporated in the body also. I am not impressed by the said argument. There is substantial compliance with the requirements of law on the above aspect. 10. As regards the pleadings in para 5, which is to the effect that after the last date for schedule of nominations and two days prior to the date of polling, names of 147 voters were deleted from the electoral roll in various polling stations, the contention of the 1st respondent is that the details of various polling stations are not divulged. It is specifically mentioned in para 5 itself that these stations are in Sreekrishnapuram Assembly Constituency itself. It is specifically mentioned in para 5 itself that these stations are in Sreekrishnapuram Assembly Constituency itself. The details of the polling stations are clearly specified in Column 1 of Annexure B with Booth Numbers concerned. Merely because all the details of polling stations are not specified in para 5 of the E.P., the petition cannot be thrown overboard. Annexure B, obviously, is part of the pleadings in para 5 of the E.P. and when the two are read together there is no dearth of pleadings. 11. As regards the inclusion of para 1 l(a) in the petition, it is a fact that this was introduced through an amendment. But it is to be mentioned here that C.M.P. No. 1959 of 2001 was filed on 26.6.2001 and allowed after hearing the petitioner on 27.6.2001. The date of declaration of result was 13.5.2001 and the grant of the petition on 27.6.2001 was within the period of limitation. Further, no new ground is brought in through the amendment. What is pleaded in para 11 (a) is the need for making available the electronic voting machine for inspection and for necessary recording, taking into account the fact that the machine has taken the place of ballot papers. What is urged is that recording of votes in the electronic voting machine has to be equated with recording of votes with ballot papers and the Returning Officers are hence bound to explain the method by which a particular vote has been cast. How a particular vote is void, how to pick up such votes so as to reduce the total number of valid votes etc. have to be spoken to by the Election Officers concerned. These pleadings are merely explanatory and no new cause of action or ground of attack is introduced through it. Hence the election petition is not liable to be dismissed, merely on the ground that an amendment was brought in. It is also to be mentioned here that the grant of amendment was at a time when summons had not been ordered to the respondents. 12. In the above circumstances, I am not satisfied that the first respondent has made out a case justifying dismissal of the election petition in limine. The issue is found in favour of the petitioner and against the first respondent in the election petition.