C. K. Sasi S/o M. R. Gopalan v. Pankajam W/o M. R. Narayanan
2019-03-15
T.V.ANIL KUMAR
body2019
DigiLaw.ai
ORDER : 1. The impugned order on I.A. 703/2017 in Election O.P. 5/2015 passed by the Munsiff Court, Koyilandy on 27.9.2017 is challenged by the 1st respondent in Election O.P 5/2015 before this court in this CRP filed under Section 115 of the Code of Civil Procedure. 2. The petitioner herein who is the 1st respondent in Election O.P. 5/2015 is the returned candidate sponsored by the LDF in an election held on 2.11.2015 to Muchakunnu North.08 ward in Moodadi Grama Panchayat. He secured 517 votes equal to the UDF candidate who was also one of the candidates to the election held to Muchakunnu North ward. Since both candidates secured equal votes, the Returning Officer by drawing lot declared the petitioner herein as the elected candidate. The original O.P. before the Munsiff court was filed by the UDF candidate who lost the election and he is the 1st respondent herein. The 2nd respondent in the Election Petition is the candidate of the BJP who secured only 42 votes. The petitioner herein questioned the maintainability of the Election O.P. on the ground that it did not satisfy the mandatory requirements of the Kerala Panchayat Raj Act 1994 (for short the Act) and therefore it is liable to be dismissed under Section 93 (1) of the Act. The court below did not accept the contention of the petitioner and held that the petition is maintainable under law. 3. The Election O.P. was filed to set aside the election held on 2.11.2015 and to declare the petitioner who is the 1st respondent herein as the elected candidate to Muchakunnu Ward No. 08. According to him, three voters who cast their votes in Ward No. 08 also cast votes in 3 other wards in the same election. Kodakkatumuri No. 003 ward in Koyillandy Municipality, Kollam West 043 ward and Perimkuni 004 ward are stated to be the three places where they voted for their candidates in the same election. The contention is therefore that when the very same voter casts votes at more than one place none of the votes cast could be considered to be valid. Double voting, in other words, makes the vote cast ab initio void is the contention of the 1st respondent herein.
The contention is therefore that when the very same voter casts votes at more than one place none of the votes cast could be considered to be valid. Double voting, in other words, makes the vote cast ab initio void is the contention of the 1st respondent herein. According to him, if the void three votes are excluded from the total number of votes cast, the petitioner would have secured only 514 votes since the void votes were cast only in favour of him. Improper reception of void votes is set up as a ground for declaring the election dated 2.11.2015 as void invoking Section 102 (1) (d) (iii) of the Act. 4. According to the petitioner, the election petition is liable to be dismissed at the threshold under Section 93 (1) of the Act since it failed to comply with the provisions of Sections 89 and 91 of the Act. His contention in substance is that, there is no cause of action for instituting the election petition and on that short ground itself the election petition is liable to be dismissed. This contention was declined by the court below by the impugned order and it held that there is sufficient cause of action made out for declaring the election as void. 5. I went through the averments and find that there is clear disclosure of cause of action in paragraph (4) of the O.P. There is clear averment to the effect that three voters registered in the electoral roll of the Muchakunnu North 08 ward exercised their franchise in the same election in three different places also the same day and consequently on the ground of double voting illegally resorted to by the voters, their votes have become void and incapable of being counted in favour of the candidates for whom they have voted. The names and addresses as well as the wards where the three voters had their names registered as well as voted are mentioned in the O.P. All requisite facts have been narrated in the petition. Therefore, I am satisfied agreeing with the view of court below that, there is clear disclosure of cause of action so as to give rise to a legal challenge against the validity of the impugned election. 6.
Therefore, I am satisfied agreeing with the view of court below that, there is clear disclosure of cause of action so as to give rise to a legal challenge against the validity of the impugned election. 6. It is a settled principle of law that double voting makes the votes cast void ab initio as held in Prabhakaran vs. Surendran Nair, (2002) KHC 1012. Therefore itself double voting is a valid ground under Section 102 (1) (d) (iii) of the Act capable of rendering an election void. If this plea of 1st respondent is upheld, it would materially affect the result of the election since void votes could never have been counted in favour of the candidate for whom the votes were cast. 7. Strictly speaking, non-disclosure of cause of action is not a ground for dismissal of Election Petition under Section 93(1) of the Act. Disclosure of cause of action is not a mandatory requirement provided by any of the provisions in Section 89, 90 and 115 of the Act. Nonetheless, it is a valid ground for rejection of the petition at the very threshold applying the provisions of Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred as the Code). The procedure laid down in the CPC is made applicable to trial of Election Petition also by Section 94 (1) of the Act. Therefore, in appropriate cases where cause of action is not made out in an Election Petition, the court in exercise of Order VII Rule 11 of the CPC could dismiss an election petition at the very threshold as held by three Bench of the Hon'ble Supreme Court in Madiraju Venkata Ramana Raju vs. Peddireddigari Ramachandra Reddy and Others, AIR 2018 SC 3012 . 8. The election is also challenged on the additional ground that copy of the schedule as provided by Section 91 (2) of the Act was not served on the petitioner besides the very true copy of the Election Petition. Section 91 (2) provides that any schedule or Annexure to Election Petition shall also signed by the petitioner and verified in the same manner as the petition. The consequence of noncompliance of this provision is provided in Section 93 (1) empowering the court to dismiss the Election Petition for that reason itself. 9.
Section 91 (2) provides that any schedule or Annexure to Election Petition shall also signed by the petitioner and verified in the same manner as the petition. The consequence of noncompliance of this provision is provided in Section 93 (1) empowering the court to dismiss the Election Petition for that reason itself. 9. The question therefore for consideration is whether the election petition contained any schedule or annexure since the question of dismissal arises only if there is schedule or the annexure forming part of the election petition. In the last paragraph of the Election Petition and just below the relief column, the 1st respondent had mentioned a list of documents referring to the voters list containing the addresses of the voters concerned. The contention of the learned counsel for the petitioner is that the list of documents corresponds to the “schedule” within the meaning of Section 91 (2) of the Act and therefore it also required to be signed and verified by the election petitioner and copies thereof, too attested and delivered to the opposite parties to the Election Petition as required by Section 89 (2) of the Act. 10. After hearing both sides, I am of the opinion that, there is no indication anywhere in the Election Petition that the petitioner ever intended to treat the list of documents as integral part of the pleadings. On the other hand it appears that his intention was only to tender the voter's lists as evidence in support of his case during trial. When the list of documents is not intended to be regarded as part of the pleadings, no obligation of serving copies thereof to the respondents arises at all. Neither the question of attestation nor verification of the copies also arises in such a situation. In Mary Thomas vs. V. Anil Akkara (M.L.A. Wadakkanchery) and Others, 2017 (2) KHC 518 and in Harischandra vs. S.K. Mohammed, 1996 (1) KLJ 591 , legal question pertaining to similar issue was considered and it was held that when documents are referred to in the pleadings without intending them to be regarded as integral part of the pleadings, they could never be part of the pleadings and consequently no breach of mandatory provision of the Act could be alleged.
Same was the view taken and followed in the decision reported in Joshi C.P. vs. Kalyan Singh Chouhan and Another, (2010) KHC 6990 (Rajasthan) also. 11. Even assuming that the list of documents formed integral part of the pleadings of the election petition also, it is nevertheless a defect which could be cured as it does not go to the root of the matter. Non-supply of copy, improper verification etc., are considered only to be cosmetic defects which do not go to the root of the matter as held in Umesh Challiyil vs. K.P. Rajendran, 2008 (2) KHC 4 and therefore itself the court is bound to extend an opportunity to the election petitioner to cure the defect and only if the opportunity is not availed, the Election Petition could be dismissed. 12. The learned counsel for the petitioner submitted that there is no concise statement of facts as required by Section 91 (1) (a) and further, verification made by the election petitioner is also not proper. I went through the Election Petition and am satisfied that there is concise statement of material facts and further the verification is also proper. In any view of the matter, in the matter of verification, there is substantial compliance as per the requirements under Order VI Rule 15 of the CPC. I am satisfied from the materials on record as well as the legal principles discussed above, that the impugned order does not require interference and it is liable to be confirmed. 13. In the result, the impugned order dated 27.9.2017 on I.A. 703/2017 passed by the Munsiff court Koyilandy in Election O.P. 5/2015 is confirmed. CRP 587/2017 is consequently dismissed.