K. Babu vs Returning Officer, Kollam Corporation Division No. 21; State Election Commission, Kollam; S. Sreekumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929** **CRP.No. 512 of 2007()** **---------------------** **AGAINST THE ORDER DATED 19/04/2007 IN ELECTION IN AS.220/2006 of D.C. & SESSIONS COURT,KOLLAM OPEP.3/2005 of PRL.M.C., KOLLAM** **....................** ## **REVISION PETITIONER: APPELLANT/PETITIONER:** **---------------------------------------------------------------------------** **K.BABU, GOKULAM, KANNIMELCHERRY, KILIKOLLUR, KOLLAM.** **BY ADV. SRI.P.B.SURESH KUMAR SRI.K.P.SUJESHKUMAR** ## **RESPONDENTS: RESPONDENTS/COUNTER PETITIONERS:** **---------------------------------------------------------------------------------------** **1. THE RETURNING OFFICER, KOLLAM CORPORATION DIVISION NO.21, PALKULANGARA, (GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE, ASRAMAM, KOLLAM-2.)** **2. STATE ELECTION COMMISSION, REPRESENTED BY DISTRICT COLLECTOR, KOLLAM.** **3. S.SREEKUMAR, S/O. SREEDHARAN, AGED ABOUT 42 YEARS, THEKKEMURI, KANNIMELCHERRY, KILIKOLLUR, KOLLAM.** **R1 & R2 BY GOVERNMENT PLEADER SMT. R. BINDU BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R3 BY ADV.SRI.S.SUDHEESHKAR** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** _Kss_ ## **M.N. KRISHNAN, J.** **==> picture [346 x 59] intentionally omitted <==** **==> picture [76 x 10] intentionally omitted <==** This revision petition is preferred against the judgment and decree in A.S.220/06 of the District Judge, Kollam whereby the learned judge confirmed the order of the Court below dismissing the election petition as not maintainable. The brief facts necessary are, the third counter petitioner is the successful candidate in the election conducted and he has contended that the election petition filed is in non-compliance of the mandate of S.165(2) of the Municipalities Act and therefore the petition is not maintainable and it has to be thrown out in the threshold stage itself. In order to properly appreciate the matter few facts are to be looked into. 2. The election petition is filed as O.P.3/05 before the Munsiff's Court, Kollam. The said election petition including the annexure is numbered into five pages and the election petitioner has attested it as a true copy only on the foot of page 5 which is annexure No.1 and had supplied the copies to the contesting respondents. Now, the contention is **CRP NO. 512 of 2007** -:2:- attestation found on the true copy on the foot of the annexure is not a proper attestation of the election petition and therefore it is invalid under Section 165(2) of the Kerala Municipalities Act and so the election petition is liable to be dismissed. The Court below found in favour of that contention and dismissed the election application on that technical ground. 3. The learned counsel for the revision petitioner had taken me through the relevant provisions of the Kerala Municipality Act and Rules, i.e. Sections 165, 167 and 169. The relevant provision under Section 165 is Section 165(2) which reads as follows. “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.” **CRP NO. 512 of 2007** -:3:- 4. Section 167 deals with the contents of an election petition and 167(2) states that any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. 5. Section 169(1) deals with trial of election petition and sub-Section (1) empowers the Court to dismiss the election petition which does not comply with the provisions of Sections 165 or 166 or 191. So what is attempted to be projected by the respondents in the election petition is noncompliance of Section 165(2) which under Section 169 is fatal and therefore it can be dismissed. 6. At the out set I may state that I have perused the original of the election petition which runs into 5 pages. After the verification of the election petition in page 4 witness list figures and in page 5 it is captioned as annexure (1) wherein four documents are produced along with the election petition. They are tied together as a book and filed before the Court running into five pages. It is true that there is no attestation at page 4 of the election petition but after the end of **CRP NO. 512 of 2007** -:4:- annexure (1) there is an attestation as true copy in the copy of the petition supplied to the contesting respondents. Now, the contention is if the annexure is to be detached from the election petition then there is no attestation at all which will cover Section 165(2), and that is a ground for dismissal under Section 169 of the Municipality Act. 7. The learned counsel for the revision petitioner has brought to my notice two decisions of the Apex Court. The first decision is reported in _**M. Kamalam v. V.A.S. Mohammed (AIR 1978 SC 840)**_ where an election petition was rejected on the ground that the attestation was done only in the affidavit filed in support of the corrupt practices and so the High Court rejected the election petition at the threshold. But the Apex Court held that it is not proper and reversed the finding of this Court. It can be seen in that case also the election petition and the affidavit were tied together as one document and copies of this document were filed for service on the respondent. The signature on the petitioner by way of attestation appear at the foot of the copy of the **CRP NO. 512 of 2007** ## -:5:- affidavit but there was no signature separately appended at the foot of the copy of the election petition. The Apex Court held that the petition could not be dismissed for noncompliance of sub-section 3 of S.81 on the ground that the copy of the election petition was not attested by the petitioner to be a true copy. 8. It may be argued that an affidavit relating to corrupt practices in an election petition is an integral part of the election petition and therefore the attestation of the same will amount to a proper attestation of the election petition. So far as the case on hand is concerned election is sought to be set aside on the basis of certain documentary evidence which deals with the question of improper rejection of the nomination of the petitioner therein. So it also is an integral part of the election petition which has to be considered by the Court. Therefore the principle laid down in the above decision can be squarely apply to the present case as well. 9. Then the learned counsel had referred to the decision of the Apex Court reported in _**Chandrakant Uttam**_ **CRP NO. 512 of 2007** -:6:- ## _**Chodankar v. Dayanand Rayu Mandrakar (2005 (2) SCC**_ _**188)**_ . The learned counsel had brought my attention to paragraphs 31, 34 and 42. In paragraph 31 it is stated that under Section 81(3) of the Representation of Peoples Act every copy of the election petition shall be attested by the election petitioner under his own signature to be a true copy of the petition. The Court held that from a bare perusal of the defects herein it can be safely concluded that such defects cannot be said to be of vital nature. The underlying principle therein was election petition need not be thrown out at the threshold level unless there is a vital defect. 10. In paragraph 34 the Court was again referring to the manner of verification held that non-compliance can be only lead to a dismissal if it is a vital defect. In paragraph 42 also the Apex Court held that it was a case where there was substantial non-compliance of not filing as many copies of the election petition as there are respondents. In that factual situation the Apex Court held that non-compliance of the first part of Section 81(3) of the Act entails dismissal of the **CRP NO. 512 of 2007** -:7:- election petition under Section 81(3) of the Act. 11. Now, referring to the case on hand it has to be held that the election petition is filed along with the witness list and annexure as a consolidated document made into a paper book and in the last page of the paper book an attestation is made by the party. It was that paper book copy that was handed over to the Court for serving on the respondents in the election petition. I feel that it is really the proper way of attestation and one cannot find fault that the petition is defective for non-attestation at page 4 when the document contains five pages. It would be the other way that if the attestation is in page 4 and no attestation at page 5 it is not a true copy of the entire document, it will be defective. 12. It has also to be understood that Sections 165(2) and 167(2) deals with situation, one is with respect to presentation of an election petition and the other with respect to contents of an election petition. A conjoint reading of these two sections would reveal not only the election petition **CRP NO. 512 of 2007** ## -:8:- should be verified, the annexure should also be verified. It is only in this context Sections 165 and 167 has to be read together. When they are presented as one single document I hold that it is sufficient if proper attestation is done on the last page of the said document produced before the Court. Therefore I disagree with the findings of the Court below set aside the order of the Court below and direct the trial court to restore the election petition back to file and to proceed in accordance with law. Registry is directed to send back the records immediately. The C.R.P. is disposed of accordingly. ## **M.N. KRISHNAN, JUDGE.** ul/-