Civil Revision Petition No. 859 of 2018, James P.M. v. Abdul Salam O.A. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 15TH DAY OF JANUARY 2020 / 25TH POUSHA, 1941** ## **CRP.No.859 OF 2018** **AGAINST THE JUDGMENT DATED 18.09.2018 OF DISTRICT COURT, KASARAGOD IN CMA 33/2016 SETTING ASIDE THE ORDER DATED 23/07/2016 IN OP (ELECTION) NO.11/2015 OF THE MUNSIFF'S COURT, HOSDURG** ## **-----** ## **REVISION PETITIONER/FIRST RESPONDENT:** **JAMES P.M., AGED 49 YEARS, S/O MATHAI(LATE), RESIDING AT PADANNAKKAL HOUSE, KANNIVAYAL P.O., CHERUPUZHA VIA, PALAVAYAL VILLAGE, KASARAGOD DISTRICT, 671 571.** **BY ADVS. SRI.GEORGE JACOB (JOSE) SRI.K.SHAJ** ## **RESPONDENTS/PETITIONER/2 TO 5 RESPONDENTS:** **1 ABDUL SALAM O.A, AGED 49 YEARS, S/O O.M. ABDULKHADER, RESIDING AT MUYAMKUNNU, KANNIVAYAL P.O., CHERUPUZHA VIA, PALAVAYAL VILLAGE, KASARAGOD DISTRICT - 670 511.** **2 CHERIYAN, AGED 51 YEARS, S/O.JOSEPH, RESIDING AT MADUKKANGAL HOUSE, KANNIVAYAL P.O., PALAVAYAL VILLAGE, KASARAGOD DISTRICT - 670 511.** **3 JAMES P.C., AGED 52 YEARS, S/O.CHERIYAN, RESIDING AT PANAMTHOTTATHIL HOUSE, P.O.KAMBALLUR, CHITTARIKKAL VILLAGE, HOSDURG TALUK- 670 511.** **4 VIJAYAKUMAR, AGED 45 YEARS, S/O.THANKAPPAN, KALLAMMAKKAL, P.O.CHITTARIKKAL, KASARAGOD DISTRICT - 671 326.** **CRP.No.859 OF 2018 -2-** **5 SURESH KUMAR, SENIOR SUPERINTENDENT OF A.E.O., FATHER'S NAME NOT KNOWN TO THE PETITIONER, CHITTARIKKAL, P.O.,CHITTARIKKAL (RETURNING OFFICER), EAST ELERI GRAMA PANCHAYAT, ELECTION 2015, KASARAGOD DISTRICT - 671 326.** **R1 BY ADV. SRI.D.KRISHNA PRASAD R1 BY ADV. SRI.P.VISHNU PRASAD R2 BY ADV. SRI.V.R.KESAVA KAIMAL** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.01.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **SATHISH NINAN, J.** ## **= = = = = = = = = = = = = = = = = = C.R.P. No.859 of 2018** ## **= = = = = = = = = = = = = = = = = = Dated this the 15[th] day of January, 2020** ## **ORDER** The Civil Revision Petition arises against the inlimine dismissal of an election petition under Section 93 (1) of the Kerala Panchayat Raj Act 1994, (hereinafter referred to as “the Act”). The trial court held that the election petition is liable to be dismissed at the threshold for noncompliance of Section 89(2) of the Act. The finding was reversed in appeal. 2. The election petition is filed by a voter. The first respondent in the election petition is the returned candidate. Respondents 2 to 4 are the other contestants and the fifth respondent is the returning officer. The election petition was filed mainly on two grounds viz. corrupt practice and non-disclosure of assets. 3. The maintainability of the election petition was challenged alleging non-compliance with the requirements under Section 89(2) of the Act in such C.R.P. No.859 of 2018 :- 2 :- that, the copy of the election petition supplied to the returned candidate was not a true copy of the original, the copies of the election petition and the affidavit accompanying the election petition were not properly attested as required under law. 4. The Munsiff's Court upheld all the contentions and accordingly dismissed the election petition under Section 93(1) of the Act without going for trial. On appeal by the election petitioner, the appellate court though found that the defects pointed out by the returned candidate exists, the same are only curable defects. It was accordingly held that those are not grounds for dismissal of the election petition at the threshhold. Aggrieved, the returned candidate is in revision. 5. Heard Sri.K.Shaj, the learned counsel for the revision petitioner-the returned candidate, Sri.D.Krishna Prasad, the learned counsel on behalf of the first respondent-election petitioner and Sri.V.R.K.Kaimal on behalf of the other contesting respondents. C.R.P. No.859 of 2018 :- 3 :- 6. Sri.Shaj, the learned counsel for the revision petitioner-returned candidate would contend that the copy of the election petition served on the parties did not contain document no.5 produced along with the original election petition, and so also the list of documents mentioned in the election petition did not make a mention of the document no.5. Therefore, the copy of the election petition supplied to the returned candidate is not a “true copy” as required under Section 89(2) of the Act. The non-compliance of Section 89(2) entails dismissal of the election petition under Section 93(1) of the Act even without going for trial. Learned counsel would fairly submit that the other grounds urged regarding improper attestation are curable defects and hence he is not pursuing the said contention. 7. The learned counsel Sri.D.Krishna Prasad and Sri.V.R.K. Kaimal would on the other hand contend that the dismissal under Section 93(1) of the Act would be warranted only in a case where the election petitioner does not cure defects in spite C.R.P. No.859 of 2018 :- 4 :- of a direction by the Court. The non-mentioning of document no.5 in the schedule of documents and also the non-supply of a copy of document no.5 are merely curable defects, submits the learned counsel. 8. Essentially the question involved is whether the copy of the election petition served on the returned candidate is a true copy as mandated under Section 89(2) of the Act or not. That would depend on the finding as to whether the non-mentioning of document no.5 in the schedule to the copy of the election petition served on the returned candidate and also the non-supply of document no.5 to him are curable defects. 9. Section 89(2) and 93(1) of the Act reads thus:- _“89. Presentation of petitions.—(1) xxxxx_ - _(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._ C.R.P. No.859 of 2018 :- 5 :- _“93. Trial of election petitions.—(1) The Court shall dismiss an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 115.”_ 10. It is not in dispute that in terms of Section 89(2) of the Act, election petitioner is required to produce true copies of the petition and the documents. It would be apposite to refer to the judgment of the Apex Court in Mithilesh Kumar Pandey v. Baidyanath Yadav and Ors. [1984 (2) SCC 1] , wherein the court while dealing with Section 81 and 86 of the Representation of People Act, 1951 which is in pari materia with Section 89(2) and Section 93(1) of the Kerala Panchayat Raj Act held thus:- _“7. A perusal of the above reveals that the statute intended that before an election petition can be entertained, the copy sent to the elected candidate must be a true copy, failing which there would be a serious disobedience of the mandate contained in Section 81(3) which would be fatal_ C.R.P. No.859 of 2018 :- 6 :- _to the maintainability of the said petition._ _8. It is now well settled by a large catena of authorities of this Court that the electoral process by which the verdict of the people has been given is a sacrosanct one and cannot be lightly set at naught unless the grounds mentioned in the Act for setting aside an election are held to be proved. In these circumstances, it is manifest that the provisions of Section 81(3) of the Act should be construed to the letter and spirit of the law because if the election petitioner does not give full and complete notice of the allegations made against the returned candidate, he runs the risk of his petition being dismissed in limine._ 11. The Apex court has underlined the necessity of supplying of a true copy of the election petition with full and necessary notice of the allegations made against the returned candidate failing which it has been cautioned that the election petitioner runs the risk of a dismissal of the election petition in limine. Therein the Apex Court also referred to its decision in Murarka C.R.P. No.859 of 2018 :- 7 :- Radhey Shyam Ram Kumar v. Roop Singh Rathore and Ors. [1964] (3) SCR 573 wherein it was held that the word “copy” does not mean an absolutely exact copy. It means a copy so true that nobody can by any possibility misunderstand it. Finally the Apex Court laid down the following principles:- _“a) that, where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightaway under Section 86 of the Act._ _b) A true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the court may not take notice thereof,_ _c) Where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate, it cannot be said that there has been a substantial, compliance of the provisions of Section 81(3) of the Act._ _d) Prima facie, the statute uses the words “true copy” and the concept of substantial_ C.R.P. No.859 of 2018 :- 8 :- _compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act, and_ _e) As Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said section.”_ 12. It would be further relevant to refer to the decision of the Apex Court in Sasidharan v. K. Karunakaran [1990(1) KLT 893] wherein the nonsupply of the notice, photographs and video cassette relied on by the election petitioner to substantiate his allegation of corrupt practice were held to be fatal. It was held that the nonsupply of the said documents amounts to failure to supply true copy in terms of Section 81(3) of the Representation of People Act. 13. With the above principles in mind, I C.R.P. No.859 of 2018 :- 9 :- proceed to consider if the non-mentioning of document no.5 in the list of documents and the nonsupply of the said document to the returned candidate amounts to failure to supply true copy of the election petition as mandated under Section 89(2) of the Act. 14. To consider the relevancy of the said document no.5 it is appropriate to refer to the allegations based on the same, as contained in paragraph 7 of the election petition. It reads thus:- _“7. The 1[st] respondent through his convenor namely Jijo P. Joseph published a notice. It exhibits a photo of personalities like Gandhiji and other persons of freedom struggle so as to mislead the general public that he is representing for the above people. The same is produced herewith.”_ 15. It admits of no doubt that the allegations based on the said document is a corrupt practice leveled against the returned candidate. When the allegations are based on the said document, the C.R.P. No.859 of 2018 :- 10 :- non-supply of the copy of the said document is of significance and is an important omission causing prejudice to the returned candidate. This has to be viewed in the backdrop of the fact that the copy of the election petition served on the returned candidate does not refer to this document in the list of documents. The omissions cannot be said to be insignificant or minimal, not affecting the rights of the returned candidate. The copy served cannot be said to be true copy as required under Section 89(2) of the Act. 16. Though the learned counsel for the respondent would rely on Sumangala v. Usha [2007 (3) KLT 902] to contend that failure to supply true copy of the petitions and documents by the court is not a ground to hold non-compliance of Section 89(2) of the Act and to dismiss the election petition under Section 93(1), it is to be noticed that, there the court was dealing with a case where true copies were produced before the court, but due to an omission in the office of the court copies of the affidavit, list of documents and documents were C.R.P. No.859 of 2018 :- 11 :- not served on the respondent. The facts in that case has absolutely no similarly with the case at hand. 17. That the non-compliance of Section 89(2) of the Act entails in dismissal of the election petition at the threshold in terms of Section 93(1) of the Act is beyond challenge. Having found noncompliance of Section 89(2), the election petition is liable to be dismissed under Section 93(1). In the result this civil revision petition is allowed. The judgment dated 18.09.2018 in CMA 33/2016 of the District Court, Kasaragod is set aside and the order dated 23.07.2016 in O.P. (Ele.) 11/2015 dismissing the election petition under Section 93(1) of the Act is restored. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge **CRP.No.859 OF 2018** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE TRUE COPY OF ORIGINAL PETITION (ELECTION) NO.11 OF 2015 ALONG WITH PHOTOCOPIES OF 4 DOCUMENTS NAMELY THE ELECTORAL IDENTITY CARD OF THE 1ST RESPONDENT, VOTERS LIST, DOCUMENT NO.318/2009 AND DOCUMENT NO.3878/2010 AS HAD BEEN SERVED ON THE PETITIONER.** ## **ANNEXURE A2** **THE TRUE COPY OF COUNTER AS WELL AS COPIES OF 3 DOCUMENTS.** ------