RAJESHWARI SHANMUGHAN v. CHINNAMMA PAULOSE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 25TH DAY OF APRIL 2017/5TH VAISAKHA, 1939** ## **OP(C).No. 285 of 2017 (O)** ## **-------------------------I.A. NO.2307/2016 IN OP (ELECTION) NO.10/2015 OF MUNSIFF COURT, PERUMBAVOOR.** **......** **PETITIONER(S):** **----------------------** **RAJESHWARI SHANMUGHAN, W/O. SHANMUGHAN, SHANMUGHA SADANAM, MALAYIDAMTHURUTHU P.O., MAKKINIKKARA.** ## **BY ADV. SRI.P.SATHISAN.** **RESPONDENT(S):** **--------------------------** **1. CHINNAMMA PAULOSE, W/O. PAULOSE, MUTTUVANCHERI VEEDU, VILANGU P.O., PIN- 683 561.** **2. LUCKY VIJAYAN, W/O.VIJAYAN, THOZHUTHUNGAL VEEDU, VILANGU P.O., PIN-683 561.** **3. CHINNAMMA MATHEW, W/O. MATHEW, KOCHAKKAL VEEDU, VILANGU P.O., VILANGU- 683 561.** **4. PRIYA K.B., W/O. SAJU KUMAR, PINAKKATTU VEEDU, KIZHAKKAMBALAM P.O., NJARALLOOR-683 562.** - **R1 BY ADVS. SRI.P.VISWANATHAN, SRI.SHIBU JOSEPH.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 12/04/2017, ALONG WITH OP(C). NO.287 OF 2017 AND CONNECTED CASES, THE COURT ON 25/04/2017 DELIVERED THE FOLLOWING:** rs. **OP(C).No. 285 of 2017 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1- TRUE COPY OF THE EXTRACT OF ELECTION PETITION NO.10/2015 SHOWING THE PLEADINGS OF PETITIONER.** **EXHIBIT P2- TRUE COPY OF THE AMENDMENT PETITION NO.2307/2016.** **EXHIBIT P2(A) TRUE COPY OF THE COUNTER AFFIDAVIT TO EXT.P2.** **EXHIBIT P3- TRUE COPY OF THE IMPUGNED ORDER IN I.A.NO.2307/16 IN O.P(ELECTION)10/2015.** **RESPONDENT'S EXHIBITS:-** **NIL.** ## **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **A. Muhamed Mustaque, J.** ==================================== O.P.(C)Nos.285, 287, 288, 292, 293, 298, 300, 302, 306, 307 & 309 of 2017 ==================================== Dated this the 25[th] day of April 2017. ## **JUDGMENT** 1. In all these original petitions, a common issue, as to the scope of amendment of election petition filed under the Panchayat Raj Act, 1994, (hereinafter referred to as the “Act”, for short) arises for consideration. 2. These cases arise from different election petitions, challenging election to various Wards in Kizhakkambalam Grama Panchayat (hereinafter referred to as the “Panchayat”, for short). The cases are being tried by the Munsiff's Court, Perumbavoor. Since in all these cases a common question is to be considered, it is appropriate to dispose off all these cases by a common judgment, though facts involved in each cases are different. In all the applications filed by the petitioners in election petitions, amendment has been disallowed. The petitioners in those applications are here before this court. O.P.(C)Nos.285 of 2017 & c.cases -:2:- However to understand the scope of amendment in each cases, facts of each cases are necessary. Accordingly, facts and grounds are narrated briefly in each of the cases hereunder. ## **O.P.(C)285/2017** 3. This original petition is filed by the petitioner in O.P.(Ele.)10/2015, challenging the election of Smt.Chinnamma Paulose, who got elected from Ward No.3 of the Panchayat. The grounds alleged in the election petition to impeach election are corrupt practices related to appeal to vote, based on religious symbols and community identity. Though it is pleaded in the Memorandum of Original Petition as the ground referable to Section 52 of the Panchayat Raj Act, nothing is seen on the petition for election that such ground has been canvassed. The petitioner filed an application for amendment, to incorporate a paragraph, containing allegations of suppression of material facts as to the liability of the returned candidate, alleging 'fake declaration' as a ground sought to be incorporated. O.P.(C)Nos.285 of 2017 & c.cases ## -:3:- ## **O.P.(C)287/2017** 4. This original petition is filed by the petitioner in O.P. (Ele.)8/2015 on the file of the Munsiff, Perumbavoor. The returned candidate is Smt.Valsa. She was elected from Ward No.9 of the Panchayat. Election petition was raised, alleging corrupt practices on the ground of appeal to vote based on religious symbol and community identity. In paragraph 28 of the election petition, petitioner alleged suppression of material facts of non-declaration of property held by the candidate and her relatives. Petitioner sought an amendment for incorporation of pleadings to the effect that returned candidates failed to disclose particulars of loan transaction, liability and holding of share etc. ## **O.P.(C)288/2017** 5. This original petition is filed by Saidu Muhammed Beeran, the petitioner in O.P.(Eel.) 5/2015. He filed election petition, challenging the election of Adv.Vinod K.P. from Ward No.4 of the O.P.(C)Nos.285 of 2017 & c.cases -:4:- Panchayat. Election petition was filed on the ground of corrupt practices. Though it is urged in the Memorandum of Original Petition that a ground was raised, alleging non-compliance of Section 52 of the Act, nothing is discernible as to such pleadings in the election petition. The petitioner filed amendment to incorporate ground of non-disclosure, in terms of Section 52 of the Act. **O.P.(C) 292/17** 6. The petitioner in this original petition Smt.Leela Davis is the petitioner in O.P.(Ele.)12/2015. She challenges election of Tishiyola Varghese from Ward No.12 of the Panchayat. In the election petition, the petitioner raised a ground of corrupt practice, alleging appeal to vote based on religious symbol and sentiments. Petitioner filed an application for amendment, amplifying allegations of corrupt practices already alleged. Petitioner also wants to incorporate a ground of non-disclosure of material facts, in terms of Section 52 of the Act. O.P.(C)Nos.285 of 2017 & c.cases ## -:5:- ## **OP 293/2017** 7. Petitioner Sri.Rajan Kombanalil is the petitioner in O.P.(Ele.) 16/2015. The returned candidate is Sri.Suresh M.P. In the election petition, the petitioner raised a ground of corrupt practice, alleging appeal to vote based on religious symbol and sentiments. Petitioner filed an application for amendment to incorporate particulars of corrupt practices and also to incorporate a ground to impeach election due to non-disclosure of material particulars, in terms of Section 52 of the Act. ## **O.P.(C)298/17** 8. This election petition is filed by Rasheed Kachamkuzhy, challenging election of Sri.K.V.Jacob from Ward No.19 on the ground of corrupt practices. Petitioner filed an amendment petition to incorporate a ground on non-disclosure of material facts as contemplated under Section 52 of the Act. Petitioner also sought to include a paragraph to amplify the alleged corrupt practices. O.P.(C)Nos.285 of 2017 & c.cases ## -:6:- ## **OP 300/2017** 9. The petitioner Sri.Saji Paul filed O.P.(Ele.)13/2015 on the ground of corrupt practice, challenging election of Sri.M.V.George from Ward No.15. He filed an amendment petition to incorporate certain paragraphs. One of the amendment is incorporation of a new ground in terms of Section 52 of the Act. The other paragraph is to amplify the corrupt practices already alleged. ## **O.P.(C) 302/2017** - 10.The petitioner Smt.Tintu Reji filed O.P.(Ele.)15/2015, challenging election of Smt.Seena Reji from Ward No.18 of the Panchayat. She urged the ground of corrupt practice related to appeal to vote based on religious symbols and sentiments. She filed an amendment petition to incorporate a ground as referable under Section 52 of the Act and also to amplify the pleadings related to corrupt practices already alleged. ## **O.P.(C)306/2017** O.P.(C)Nos.285 of 2017 & c.cases ## -:7:- 11.Petitioner Smt.Shoba Poly is the petitioner in O.P.(Ele.)19/2015 challenging election of Smt.Deepa Krishnan who got elected from Ward No.14 of the Panchayat. The petitioner alleged corrupt practices related to appeal to vote on the basis of religious symbols and sentiments. She filed an application for amendment to incorporate the ground as referable under Section 52 of the Act alleging non-disclosure of materials facts of assets and liabilities. Petitioner also wants to incorporate a paragraph amplifying corrupt practices already pleaded. **O.P.(C) 307/2017** 12.Petitioner Sheena Jijo is the petitioner in O.P.(Ele.)18/2015, challenging election of Smt.Radhamani Dharaneendran from Ward No.16 of the Panchayat. The ground urged in the election petition is related to corrupt practices by appealing vote based on religious symbols and sentiments. Petitioner filed an application for amendment to incorporate a ground as envisaged under Section 52 of O.P.(C)Nos.285 of 2017 & c.cases -:8:- the Act, alleging non-disclosure of assets and liabilities. Petitioner also wants to add a paragraph amplifying corrupt practices already alleged. ## **O.P.(C) 309/2017** 13.This original petition is filed by Elias Karipra, the petitioner in O.P. (Ele.)17/2015, challenging the election of Smt.Lalu Varghese from Ward No.11 of the Panchayat. In the election petition, the petitioner urged grounds of corrupt practices based on religious symbols and sentiments, alleging non-disclosure of assets as contemplated under Section 52 of Act. The petitioner filed an application for amendment to incorporate allegations of certain other non-disclosures and also to amplify the allegations of corrupt practices already made. 14.Challenge to election is a statutorily conferred right. Therefore, the scope and ambit of amendment has to be understood within the statutory provisions. Section 102 of the Act stipulates the grounds for declaring election to be void. Therefore material particulars for O.P.(C)Nos.285 of 2017 & c.cases -:9:- filing election petition have to be confined to the grounds as referable under Section 102 of the Act. The grounds referable under Section 102 includes corrupt practices as well as fake declaration in terms of Section 52. Section 93(4) permits amendment for amplifying the particulars of any corrupt practice already alleged in the petition. The above provision clearly prohibits amendment of petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. It is appropriate to refer Section 93(4). ## _“_ _**93. Trial of election petitions.--** (1) xxxx_ _(2)xxxx_ _(3)xxxx_ _(4) The Court may upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner, as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition.”_ O.P.(C)Nos.285 of 2017 & c.cases -:10:- 15.The above provision only refers to scope of amendment related to corrupt practices. It is clear from the above provision that, no amendment can be allowed to include particulars of corrupt practices not previously alleged. Corrupt practices is defined under Section 120 of the Act. This enumerates different kinds of corrupt practices. The illustration of corrupt practices includes bribery, undue influence, appeal to vote, based on the ground of religion, race, caste etc., publication of false statement, misuse of vehicle for free conveyance of elector, unauthorized expenditure, illegal procurement of vote, booth capturing etc. Therefore, if any of the grounds is specifically alleged, certainly, that can be amplified by subsequent amendment in terms of Section 93(4). 16.The main contention urged by the counsel for the petitioners is that, since Section 93(4) only place restriction for amending petition for introducing particulars of corrupt practices, not previously alleged, there is no bar in incorporating any other ground as envisaged under O.P.(C)Nos.285 of 2017 & c.cases -:11:- Section 102 of the Act. Therefore, it is argued that, dismissal of the applications to incorporate a ground under Section 52 is illegal. It is further argued that allegations, relating to corrupt practices sought in the amendment petition, are only to amplify the pleadings already on record and no new ground of corrupt practices has been urged. On the other hand, learned counsel for the respondents argued that, new ground urged is clearly barred by limitation and it cannot be allowed. It is further argued that the attempt of the petitioners is to introduce a paragraph of corrupt practices which was not pleaded previously. 17.Section 89 of the Act refers to presentation of election petition calling in question any election. It stipulates 30 days time for filing an application from the date on which returned candidate was declared as elected. 18.This Court is of the view that, Sections 89 and 93(4) related to the amendment, if read in conjointly, the scope of amendment can be decided as follows: O.P.(C)Nos.285 of 2017 & c.cases -:12:- a) The amendment can be allowed to incorporate any ground as referable under Section 102, if such amendment is filed in an election petition before the date of expiry of limitation as laid in Section 89. b) After the period of limitation, no amendment can be allowed, to amplify the pleadings related to any ground, except in relation to the corrupt practices already pleaded. The power of the court to amend is traceable only under Section 93(4) and not otherwise. Section 93(4) only allows the amendment related to corrupt practices already pleaded. No amendment can be allowed to incorporate any additional pleadings to amplify any ground already urged referable under Section 52 or other grounds as referred in Section 102 of the Act. O.P.(C)Nos.285 of 2017 & c.cases -:13:- 19.The power to allow the amendment, as already noted, is traceable to statutory provision. Therefore, principles governing under Order VI Rule 17 of the Code of Civil Procedure cannot be imported in trying election petitions under the Act. 20.Both sides referred to a catena of precedents not essentially arising from a dispute like this. Therefore, I am only referring some of the judgments relied on by the learned counsel. The Honourable Supreme Court in a matter arising under the Representation of People Act, 1951 in _**Ram Dayal v. Brijraj Singh and others**_ [1969 KHC 507] held that application to amend seeking to introduce new ground after a bar of limitation cannot be allowed. In _**Bashir Moosa Patel v. Satyawan Ganpat Jawkar and others**_ [1997 KHC 681] the Supreme Court held that court cannot give a new cause of action by directing to furnish the particulars which are not already part of the election petition. In _**K.D.Deshmukh v. Amritlal Jayaswal**_ [1993 KHC 561] the Supreme Court in clear terms held that no amendment O.P.(C)Nos.285 of 2017 & c.cases -:14:- could be allowed to incorporate a new ground after the period of limitation. In _**Abdulla v. Jose**_ [2012(3)KLT 22] this Court took the view that in a case arising from the Act, power to amend election petition is not restricted to cases where election is sought to be called in question on the ground of corrupt practices and can be exercised in all election petitions, provided same relates to particulars and not material facts. 21.I am not able to agree with the view taken by the learned Single _**Abdulla**_ **'** s Judge in case ( _supra_ ), for the obvious reason that, power of amendment is only referable under Section 93(4) and not by way of invoking power as a common law court. Section 93(4) in clear terms refers only about amendment of particulars of corrupt practices and not related to any other ground, power to amend cannot be extended to other grounds already pleaded. - 22.In fact in _**Jyoti Basu and others v. Delhi Ghosal and others [**_ AIR 1982 SC 983], _**Arun Kumar Bose v. Mohd. Furkan Ansari**_ [AIR O.P.(C)Nos.285 of 2017 & c.cases -:15:- 1983 SC 1311] & in _**Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa and others**_ [AIR 1958 SC 698], the Hon'ble Supreme Court and this court took the consistent view that an election petition is not an action at common law nor in equity, but it is purely a statutory proceedings unknown to common law and the court possess no common law power. 23.In the light of the above binding declaration of the Honourable Supreme Court, enlarging the scope of amendment beyond corrupt practices held in _**Abdulla**_ 's case ( _supra_ ) by the learned single Judge, is _per incurium_ . The statutory provision, therefore, cannot be enlarged beyond power conferred upon court under Section 93(4) for allowing amendment on any other ground, other than related to corrupt practices already pleaded. In fact, in another judgment by a learned Single Judge of this court in _**Omana v. Sussi Kunjachan**_ [2003 (1) KLT 525] this court had taken a view that provisions of the Code of Civil Procedure cannot be resorted for amendment. In that O.P.(C)Nos.285 of 2017 & c.cases -:16:- view of the matter, I am of the considered view that amendment can be allowed only to amplify the ground of corrupt practices already alleged and not otherwise. In the result, these original petitions are disposed of as follows: ## **O.P.(C) 285/2017** In the light of the fact that present amendment is to incorporate a new ground in terms of Section 52 after the period of limitation, this court is of the view that amendment cannot be allowed. Accordingly original petition is dismissed, affirming the order of the court below. ## **O.P.(C)287/2017** The amendment sought to amplify the ground already urged under Section 52 of the Act. In view of the law that amendment can be allowed to amplify the corrupt practices, which was previously pleaded in the light of the power of the court in terms of Section 93 (4), the petitioner's application for amendment cannot be allowed. Accordingly, original petition is dismissed. O.P.(C)Nos.285 of 2017 & c.cases ## -:17:- ## **O.P.(C)288/2017** Amendment sought to incorporate the ground under Section 52 of the Act. In the light of the discussion earlier, this original petition is dismissed. ## **O.P.(C)292/2017** The amendment sought to incorporate new ground under Section 52 and also to amplify the corrupt practices already pleaded. Therefore, amendment to amplify the corrupt practices is allowed. Impugned order is set aside to the above extent. Petitioner is permitted to incorporate para 25(b) in amendment petition as para 25(a) in the election petition. Incorporation of amendment as para 25(a) is disallowed. The original petition is disposed of as above. ## **O.P.(C) 293/2017** The application for amendment to amplify the allegations of corrupt practices as well to incorporate the ground envisaged under Section 52. In the light of the discussions as above, application to O.P.(C)Nos.285 of 2017 & c.cases -:18:- incorporate amendment amplifying the corrupt practices already pleaded is allowed. However, prayer to incorporate a ground under Section 52 is declined. Impugned order is set aside to the extent, permitting the petitioner to incorporate para 25(b) in the amendment application as para 25(a) in the election petition. Amendment sought as para 25(a) would be disallowed. The original petition is disposed of as above. ## **O.P.(C)298/2017** The amendment sought to incorporate new ground under Section 52 and also to amplify the corrupt practices already pleaded. Therefore, amendment to amplify the corrupt practices is allowed. Impugned order is set aside to the above extent. Petitioner is permitted to incorporate para 25(b) in amendment petition as para 25(a) in the election petition. Incorporation of amendment as para 25(a) is disallowed. The original petition is disposed of as above. ## **O.P.(C)300/2017** O.P.(C)Nos.285 of 2017 & c.cases -:19:- The amendment sought to incorporate new ground under Section 52 and also to amplify the corrupt practices already pleaded. Therefore, amendment to amplify the corrupt practices is allowed. Impugned order is set aside to the above extent. Petitioner is permitted to incorporate para 25(b) in amendment petition as para 25(a) in the election petition. Incorporation of amendment as para 25(a) is disallowed. The original petition is disposed of as above. ## **O.P.(C)302/2017** The amendment sought to incorporate new ground under Section 52 and also to amplify the corrupt practices already pleaded. Therefore, amendment to amplify the corrupt practices is allowed. Impugned order is set aside to the above extent. Petitioner is permitted to incorporate para 25(b) in amendment petition as para 25(a) in the election petition. Incorporation of amendment as para 25(a) is disallowed. The original petition is disposed of as above. ## **O.P.(C)306/2017** O.P.(C)Nos.285 of 2017 & c.cases -:20:- The amendment sought to incorporate new ground under Section 52 and also to amplify the corrupt practices already pleaded. Therefore, amendment to amplify the corrupt practices is allowed. Impugned order is set aside to the above extent. Petitioner is permitted to incorporate para 25(b) in amendment petition as para 25(a) in the election petition. Incorporation of amendment as para 25(a) is disallowed. The original petition is disposed of as above. ## **O.P.(C)307/2017** The amendment sought to incorporate new ground under Section 52 and also to amplify the corrupt practices already pleaded. Therefore, amendment to amplify the corrupt practices is allowed. Impugned order is set aside to the above extent. Petitioner is permitted to incorporate para 25(b) in amendment petition as para 25(a) in the election petition. Incorporation of amendment as para 25(a) is disallowed. The original petition is disposed of as above. ## **O.P.(C)309/2017** O.P.(C)Nos.285 of 2017 & c.cases -:21:- The proposed amendment is only to amplify the corrupt practices already pleaded. Though in this case a ground as referable under Section 52 has been pleaded, in paragraph 26, no amendment is sought to amplify such pleadings. Even if such amendment is sought in the light of the discussions earlier, such an amendment cannot be allowed. In the light of the above, this original petition is allowed. Petitioner is permitted to incorporate paragraph 26(a) in the amendment petition. ## **A.Muhamed Mustaque, Judge.** sl.