Pushpa v. Shereeefa Salam and Usha Kumari B.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941** ## **OP(C).No.284 OF 2019** **AGAINST THE ORDER IN OP(ELECTION)NO.5/2015 DATED 13-12-2018 OF PRINCIPAL MUNSIFF COURT, KASARAGOD.** ## **PETITIONER/S:** **PUSHPA, AGED 41 YEARS, W/O. GOPALAN, SHIVA KRISHNA ROAD, POST R.D. NAGAR, KASARGOD DISTRICT-671 124. BY ADV. SRI. C. DINESH** ## **RESPONDENT/S:** |**1**|**SHEREEFA SALAM,**| |---|---| ||**AGED 59 YEARS,**| ||**W/O. ABDUL SALAM, SPRINT SALT HOUSE,**| ||**S.P. NAGAR, POST HIDAYATH NAGAR,**| ||**KASARGOD DISTRICT - 671 322.**| |**2**|**USHA KUMARI. B.,**| ||**AGED 43 YEARS,**| ||**D/O. BABU NAIK,**| ||**KELUGUDDA, AYYAPPA NAGAR, POST KUDLU,**| ||**KASARGOD DISTRICT - 671 124.**| **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 25.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(C) No.284 of 2019 2 ## **JUDGMENT** This original petition under Article 227 of the Constitution of India is filed by the 1[st] respondent in O.P. (Election) No.5 of 2015 on the files of the Principal Munsiff's Court, Kasaragod, seeking to set aside Ext.P3 order passed by the court below on the preliminary point, holding that the original petition is maintainable under law. Brief material facts for the disposal of the original petition are as follows: 2. Petitioner herein is the 1[st] respondent in the above specified original petition. First respondent herein is the petitioner and the 2[nd] respondent is the 2[nd] respondent in the original petition before the court below. Petitioner and respondents were candidates contested from Uliyathadukka Constituency (Ward No.17) of Madhur Grama Panchayat, Kasaragod District, in the general election held on 02.11.2015. Petitioner was the official candidate of the BJP, and she was elected from the above Ward in the election. After counting of the votes, the returning officer declared that the petitioner herein and the 1[st] respondent secured equal number of valid votes, i.e., 528 votes each. Since there was equal votes, the returning officer opted to go for lots and the lot was taken in favour of the O.P.(C) No.284 of 2019 3 petitioner and accordingly, she was declared elected. Aggrieved, the election petition was filed mainly with the contention of double voting. A counter statement was filed denying the allegations and challenging the maintainability of Ext.P1 Election Petition, evident from Ext.P2. 3. According to the petitioner herein, the Election Petition is defective for the reason that, under Sec.91(1)(c) of the Kerala Panchayat Raj Act, 1994, an election petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for verification of the pleadings. On a reading of the verification in page Nos.7 and 8 of the election petition, it is clear that the same is not verified as per Order 6, Rule 15 of the CPC, and the failure on the part of the petitioner to state which paragraph of the petition is true to his personal knowledge and which on information, is fatal, and therefore, the election petition itself is defective. It is also submitted that, the object of requiring verification of the election petition is to clearly fix the responsibility for the averments and O.P.(C) No.284 of 2019 4 allegations in the petition on the persons signing the verification. 4. So also, Sec.91(2) of Act, 1994 stipulates that, any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition. According to the petitioner, three annexures submitted along with the election petition clearly show that none of them are verified at all, which is flagrant violation of Sec.91(2) of Act, 1994, which cannot be cured at all. So also, Sec.89(2) of Act, 1994 is not complied with. That apart, it is submitted that, in the election petition, at paragraphs 4 and 5, there is an attempt to allege double voting. But, there is no allegation falling under Sec.102(d)(iii) of Act, 1994, and there is no specific allegation in Ext.P1 election petition that the alleged double votes were casted in favour of this petitioner, which led to the equalization of votes and ultimately led to her success by way of lot, and further that, there is no allegation in Ext.P1 falling under Sec.103 of Act, 1994. 5. However, the court below has taken the view that, even if any minor omission is found, which is not material and the substantial compliance alone is O.P.(C) No.284 of 2019 5 sufficient, and accordingly it was found that the 1[st] respondent has complied with Sections 89, 90 and 91 of Act, 1994, and therefore, the election petition is maintainable. 6. The paramount contention advanced by the petitioner, as I have quoted above, is relying upon the provisions of the Kerala Panchayat Raj Act, 1994 and the failure on the part of the 1[st] respondent to verify the pleadings and documents in accordance with the provisions of Sections 91(1)(c) and 91(2) of Act, 1994. Learned counsel for the petitioner has addressed arguments on the basis of the pleadings so made. 7. With respect to the questions raised by the petitioner, I have come across the judgment of the apex court in ' _**R.P. Moidutty v. P.T. Kunju Mohammed and Another**_ ' [2000 (1) SCC 481], wherein it was held that, heavy onus lies on the election petitioner seeking to set aside the election of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial, and further that the mandate of the people should not be interfered lightly and it emphasises that under Sec.83 of the Representation of Peoples Act, 1951, ordinarily it would suffice if the election petition contains a O.P.(C) No.284 of 2019 6 concise statement of the material facts relied upon by the petitioner. It was also held that the election petition is required to be signed and verified in the same manner as is laid down in the Code of Civil Procedure, 1908 for the verification of pleadings. 8. So also, I have come across a judgment of a learned Single Judge of this Court in ' _**Mary Thomas v.**_ _**Anil Akkara (M.L.A Wadakkanchery) and Others**_ ' [2017 (2) KHC 518], wherein it was held that, Sec.83(c) of the Representation of the People Act, 1951 dealing with the manner in which the election petition shall be signed and verified, which says that the same shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings, and it was further held that, when some matters are within the personal knowledge of the person verifying it, he shall state that the said facts are within his personal knowledge and in such case, he need not further confirm that he believes the same to be true. But when some facts are derived on information, that shall also be specified and it should be confirmed that the person verifies the same believes the same to be true. Finally, it was held that, when the Schedule 1 forms an integral part 7 O.P.(C) No.284 of 2019 of the election petition, the same clearly comes under Sec.81 and the verification is to be done in accordance with the mandates contained under Sec.83 of Act, 1951. 9. Learned counsel for the petitioner has invited my attention to the verification contained in Ext.P1 Election Petition filed by the 1[st] respondent, wherein, in my considered view, the verification done is not in accordance with the mandates contained under the afore discussed provisions of the Act, 1994. So also, document Nos.1 to 3 produced along with the election petition viz., the candidate's identity card, Election Returns and Voters' List, 2015 are not verified at all, which is a clear violation of the mandatory requirements as per the provisions of Act, 1994 discussed above. In my considered view, the court below lost sight of such vital aspects when passing Ext.P3 order, and arrived at a conclusion without referring to the specific contentions put forth by the petitioner herein, in the objection filed to Ext.P1 Election Petition, and therefore, there is clear jurisdictional error and illegality in Ext.P3 order, liable to be interfered with by this Court, exercising the supervisory power conferred under Article 227 of the Constitution of India. O.P.(C) No.284 of 2019 8 10. I make it clear that, even though the respondents are served, they have not entered appearance in this original petition and I did not have the advantage of hearing the respondents. 11. The original petition is allowed, Ext.P3 order is set aside, and there will be a direction to the court below to re-consider the matter, taking into account the provisions of the Kerala Panchayat Raj Act, 1994, discussed above, and verify the documents, pleadings, Election Petition and verification thereto and take a decision at the earliest possible, and at any rate, within two months from the date of receipt of a copy of this judgment, after providing opportunity of hearing to all concerned. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/01.10.2019 O.P.(C) No.284 of 2019 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE O.P. (ELECTION) NO.5 OF 2015 DATED 3.12.2015. EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT, KASARAGOD DATED 13.12.2018.** RESPONDENTS' EXHIBITS: NIL