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2002 DIGILAW 544 (KAR)

Basavaraj v. Hire Doddanagouda

2002-08-29

N.K.PATIL

body2002
ORDER N.K. Patil, J.--The Petitioner questioning the legality and validity of the impugned order passed on I.A. No. I in E.P. No. 1 of 2000 by the Civil Judge (Senior Division), Koppal, dated 26.9.2000, dismissing the said application, has presented this revision petition. 2. The principal submission of the learned Counsel appearing for the Petitioner is that the impugned order passed by the trial Court is contrary to the material on record and contrary to the relevant provisions of the Karnataka Panchayat Raj Act, 1993 (hereinafter referred to as the 'Act'). He vehemently contended that the petition filed by the Respondent No. 1 is not in accordance with Section 16(2) of the Act. The relevant provision reads as follows: Section 16(2): Any schedule or Annexure to the petition shall also be signed by the Petitioner and verified in the same manner as the petition. In the instant case, he has taken me through the original records available before this Court. After thorough verification, it is found that the Respondents has filed petition duly signed by him page to page only and verified. But, so far as Annexure is concerned, he has not put any signature as it is Annexures I to IV. Therefore, the Petitioner has filed I.A. No. I under Order 7, Rule 11 Code of Civil Procedure, for rejecting the election petition as it is not maintainable in view of the relevant provisions of the Act as stated supra. Further, he has rightly taken me through the impugned order passed by the Court below. The trial Court has gone to the extent stating that the Annexures produced along with the petition are signed by the Petitioner, but, a separate verification is not made to these Annexures. The said finding given by the trial Court is contrary to the material on record. Further he has relied upon the judgment of this Court reported in 2000 KCCR 2348 (Shivashankar Somlingappa Malagali v. Malagi Shivaputrappa Channabasappa and Ors.) wherein it is held as follows: The certification as true copy of the petition in each page of the copies is Mandatory. The Annexures and arrangement of pages should be in conformity with the index. The verification must be in conformity with Clause (2) of Order VI, Rule 15 of Code of Civil Procedure. The Annexures and arrangement of pages should be in conformity with the index. The verification must be in conformity with Clause (2) of Order VI, Rule 15 of Code of Civil Procedure. The matter requires to be examined bearing in mind the rival contentions and the relevant provisions of the Act and the law on the subject. Sub-section (3) of Section 81 of the Act (Representation of People Act) reads as under: (3) Even 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. He therefore, contended that in view of the law laid down by this Court as stated supra, the impugned order is liable to be rejected. 3. Per contra, the learned Counsel appearing for the 1st Respondent inter alia contended and justified the impugned order. But, he is not in a position to justify the finding given by the trial Court contrary to the material on record, after going through the records available before this Court. 4. The short question that arises for consideration is: Whether the impugned order passed by the Court below is sustainable? 5. The undisputed facts are that the Petitioner has been declared as elected as Member of the Taluka Panchayat and the 1st Respondent herein is defeated in the said Election. He has filed the election petition challenging the declaration of the resolution declaring the Petitioner as elected member of the Taluka panchayat. Accordingly, the 1st Respondent has filed the election petition on the file of the Civil Judge (Senior Division), Koppal in E.P. No. 1 of 2000. In the said petition, the Petitioner herein has filed I.A. No. I under Order 7, Rule 11 Code of Civil Procedure, requesting for rejecting the election petition filed by the Petitioner as not maintainable on the ground that the said petition is filed contrary to the relevant provisions of the Act. It is further significant to note that as per the judgment rendered by the Apex Court, this Court held that the statutory provisions are mandatory in nature. In the instant case, the 1st Respondent has not signed and verified the Annexures. It is further significant to note that as per the judgment rendered by the Apex Court, this Court held that the statutory provisions are mandatory in nature. In the instant case, the 1st Respondent has not signed and verified the Annexures. Also, as rightly pointed out by the learned Counsel appearing for the Petitioner the copies sent to the Petitioner have no been duly signed by the 1st Respondent, which is also a mandatory requirement as per Sub-section (3) of Section 81 of the Representation of People Act, 1951. In the instant case, the copies served to the learned Counsel appearing for the Petitioner have not been attested by the 1st Respondent. Further, the Court below has given a specific finding in the impugned order that the 1st Respondent though has signed the Annexures has not made separate verification to the same. Therefore, having regard to the factual and legal position as stated above and taking into consideration the totality of the case, I hold that the trial Court was not justified in rejecting I.A. No. I, filed by the Petitioner without following the law laid down by the Apex Court and this Court. 6. Yet another reason for which the petition filed by the Petitioner is liable to be allowed is in view of the law laid down by the Hon'ble Supreme Court reported in Ch. Subbarao Vs. Member, Election Tribunal, Hyderabad, AIR 1964 SC 1027 , wherein it has been held as under: Representation of People Act, 1951, Sections 81(3) and 90-Compliance with Section 81(3) - What constitutes - Substantial compliance is sufficient - Absence of words 'true copy' in copy-Held still there was sufficient compliance with Section 81(3) - (1963) 2 ALT 138, Reversed. An election petition is not to be equated to an election at law or in equity, but as the rights are purely the creature of statute, if the statute renders any particular requirement mandatory, the Courts possess and can exercise no dispensing power to waive non-compliance. An election petition is not to be equated to an election at law or in equity, but as the rights are purely the creature of statute, if the statute renders any particular requirement mandatory, the Courts possess and can exercise no dispensing power to waive non-compliance. While the Court is conscious of the need for expeditious disposal of election petitions, and for the strict enforcement of provisions designed to achieve this purpose, it cannot be oblivious to the circumstance that to read every requirement literally might equally defeat the purpose for which part VI is intended viz., that elections are conducted in accordance with the relevant provisions framed to ensure purity and orderliness and that the candidate who has not obtained a majority of valid votes or has obtained it in flagrant breach of the statutory provisions is not held entitled to represent the constituency. 7. Having regard to the law laid down by the Apex Court and this Court as stated supra, in my considered view, the impugned order passed by the trial Court is not sustainable and accordingly, I pass the following Order: The revision petition filed by the Petitioner is allowed. The impugned order passed on I.A. No. I in E.P. No. 1 of 2000 by the Civil Judge (Senior Division), Koppal, dated 26.9.2000 is hereby set aside. Consequently, the election petition filed by the 1st Respondent herein is dismissed as not maintainable. The parties to bear their respective costs. 8. Learned Government Advocate is permitted to file memo of appearance for Respondents 2 and 3 within four weeks from today. 9. Office is directed to return the original records immediately.