Saramma Paulose v. Lilly

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 CRP.No. 352 of 2011() --------------------ELEOP.9/2010 of MUNSIFF COURT, MUVATTUPUZHA ....................** **REVN. PETITIONER(S): RESPONDENT -------------------------------** **SARAMMA PAULOSE, W/O PAULOSE, AGED 40, RESIDING AT NEDUMALAYAIL HOUSE, KAKKADU.P.O, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK.** **BY ADV. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE** **RESPONDENT(S): PETITIONER** **-------------------------** **LILLY, W/O THAMPI, AGED 35, RESIDING AT PUTHUVAKKUNNEL HOUSE, KAKKADU KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK - 686 664.** **BY ADV. SRI. ABRAHAM VAKKANAL, SENIOR ADVOCATE SRI. PAUL ABRAHAM VAKKANAL SRI. DIJO SEBASTIAN SMT. VINEETHA SUSAN THOMAS SMT. JASMY KATTOOR** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BKA** ## **THOMAS P. JOSEPH, J.** **-------------------------------------C.R.P. No.352 of 2011 -------------------------------------Dated this the 3[rd] day of October, 2011.** ## **ORDER** The following questions are raised for a decision in this civil revision: i. What, if any is the consequence of non-compliance of the proviso to Sec.91(1)(c) of the Kerala Panchayat Raj Act,1994 (for short, “the Act”) and Rule 62 of the Kerala Panchayat Raj (Conduct of Election) Rules (for short, “the Rules”) on the maintainability of an election petition? Would such non-compliance entail a dismissal of the election petition in limine? ii. Whether, for the reason that all pages of the copy of election petition are not signed and attested as true copy of the election petition by the person challenging the election (when the last page is signed and attested as true copy), the election petition is liable to be dismissed in limine? iii. Whether the defect in verification of the schedule and annexure to the election petition would entail a dismissal of the election petition in limine? 2. These questions arise for a decision in Election O.P. No.9 of 2010 of the court of learned Munsiff, Muvattupuzha filed by the respondent challenging election of petitioner in the local body elections. Petitioner preferred a preliminary objection regarding maintainability of the election petition on the following grounds: **CRP No.352/2011** 2 (a) the affidavit sworn by the respondent in support of corrupt practice alleged in the election petition is not sworn before a Magistrate of the First Class or a Notary as required under the proviso to Sec.91(1)(c) of the Act and Rules 62 of the Rules, instead, it is sworn before an Advocate; (b). all the pages of copy of the election petition served on petitioner are not signed and attested as true copy by the respondent as required under Sec.89(2) of the Act, and; (c) the schedule and annexures to the election petition though required to be signed by the respondent and verified in the manner provided in the Code of Civil Procedure (for short, “the Code”) has not been so signed or verified as required under Sec.91(2) of the Act. These objections were rejected by the learned Munsiff by order dated 14.07.2011 which is under challenge in this civil revision. 3. Learned counsel for petitioner has contended that non-compliance of the proviso to Sec.91(1)(c) of the Act and Rules 62 of the Rules is fatal. It is argued that the right to challenge an election is not an inherent or fundamental right, but a right conferred by the relevant Statute and hence when the Act requires that the affidavit accompanying the election petition with respect to the corrupt practice is to be sworn either before a Magistrate of the First Class or a Notary, it has to be done accordingly and if the affidavit is sworn before an Advocate, it cannot be treated as an 'affidavit' as prescribed by the proviso to Sec.91(1)(c) of the Act and Rule 62 of the Rules. It should therefore be taken **CRP No.352/2011** 3 that the election petition is not accompanied by an affidavit. Learned counsel has contended that the mere absence of Sec.91, in Sec.93 of the Act by itself does not mean that failure to file the affidavit as provided in Rule 62 of the Rules and as the proviso to Sec.91(1)(c) of the Act requires is not fatal. According to the learned counsel, Sec.91 of the Act must be read in conjunction with Sec.89 of the Act which deals with the presentation of petitions. It is argued that the election petition referred to in Sec.89 of the Act is one which complies with the requirements of Sec.91 of the Act as well and hence non-compliance of Sec.91 (1)(c) proviso amounts to non-compliance of Sec.89 of the Act which comes in Sec.93 of the Act as well and hence for such non-compliance the election petition has to be dismissed in limine. It is also argued that unlike cases where the affidavit is not verified properly or is otherwise defective which may be a curable defect, in the present case the affidavit is not sworn before a Magistrate of the First Class or Notary but before an Advocate, that defect is not curable and hence it is idle to contend that the election petition is not liable to be dismissed in limine but the petitioner should wait until culmination of trial for its dismissal. Learned counsel has placed reliance on the decisions in **Dr.Shipra** ## **(Smt.) and others v. Shanti Lal Khoiwal and others ((1996) 5 SCC** ## **181)** and **A.Mohammed v. Nalakath Soopy (1997(1) KLT 697)** . 4. So far as non-signing and attesting as true copy of the election petition on all pages of copy of election petition given to the petitioner is concerned, it is contended that only some of the pages are signed and only in **CRP No.352/2011** 4 the last page it is signed and attested as true copy of the election petition.. Since all the pages are not signed and attested as true copy, there is noncompliance of Sec.89(2) of the Act. Reliance is placed on the decision in ## **Dr.Shipra (Smt.) and others v. Shanti Lal Khoiwal and others** . So far as the third objection is concerned, it is contended that absence of verification and signing of the schedule and annexure of the election petition is fatal as it violates Sec.91(1)(c) of the Act. 5. Learned Senior Advocate appearing for the respondent contended that none of the ‘defects’ which petitioner urges are grounds on which an election petition could be dismissed in limine under Sec.93 of the Act. According to the learned Senior Advocate, all the defects which petitioner has pointed out, even if assumed to be correct are curable. Reliance is placed on the decisions in **Dr.Vijay Laxmi Sadho v. Jagdish ((2001) 2 SCC 247), G.Mallikarjunappa and another v. Shamanur Shivashankarappa and others ((2001) 4 SCC 428)** and **Lissy v. Surendran (2008 (4)** **KLT 354)** . So far as failure to sign and attest as true copy all pages of the copy of election petition is concerned, it is contended that when the last page of copy of election petition is signed and attested by the respondent as true copy, there is sufficient compliance of Sec.89(2) of the Act and a dismissal of the election petition in limine for not signing and attesting as true copy on all the pages of the copy of the election petition is not warranted. Reliance is placed on **CRP No.352/2011** 5 the decisions in **Bindu Vijayakumaran Nair v. Bindu Rajappan (2001 (3) KLT 155)** and **P.Aisha Potty and etc. v. The Returning Officer, Kollam District Panchayat and others (AIR 2002 Kerala 89)** . In support of the contention that absence of verification of the schedule and annexures is not fatal, reliance is placed on the decision in **Sukumaran v.** ## **Mohanan (2004 KHC 283** ). 6. It is not very much in dispute that the affidavit filed by the respondent in support of corrupt practice mentioned in the election petition is not sworn before a Magistrate of the First Class or a Notary – it is sworn before an Advocate. Sec.91 of the Act deals with the contents of election petition and the proviso to Clause (c) of Sub-sec.(1) states: “where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof”. Rule 62 of the Rules says that the affidavit (referred to in the proviso to Sub-sec. (1) of Sec.91) shall be in Form No.28 and it shall be sworn before a Magistrate of the First Class or Notary . 7. Question for decision is whether for the reason that the affidavit is not sworn before a Magistrate of First Class or Notary but is sworn before an Advocate, the election petition could be dismissed in limine. Sec.93 (1) of the **CRP No.352/2011** 6 Act states that ## “The court shall dismiss an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 115”. It is relevant to note that Sec.91 of the Act which deals with the contents of the election petition and the requirement to file affidavit in the prescribed form (as provided under Rule 62 of the Rules) does not come within the mischief of Sec.93 of the Act. ## 8. In **Dr.Shipra (Smt.) and others v. Shanti Lal Khoiwal** **and others** (supra) a Bench of the Supreme Court consisting of three Judges , referring to the decision in **F.A.Sapa v. Singora ((1991) 3 SCC 375)** held in paragraph 21 that there are innumerable decisions of the Supreme Court which have construed the provisions of Sec.83 of the Representation of the People Act, 1951 (for short, “the RP Act”) – corresponding to Sec.91 of the Act - it is hardly necessary to refer to all of them and that a mere look at the proviso to Sec.83(1) of the RP Act (corresponding to the proviso to Sec.91(1)(c) of the Act) along with Sec.83(2) of the RP Act would show that the affidavit referred to in the proviso to Sec.83(1) of the RP Act forms part of the election petition. Election petition is in truth and reality one document consisting of two parts – one being the election petition proper and the other being the affidavit referred to in the proviso to Sec.83(1) of the RP Act. In that case, copy of the affidavit was not sworn before the Authority mentioned in the proviso to Sec.83(1) of the RP **CRP No.352/2011** 7 Act. It was held that copy of the election petition required to be filed under Sec.81(3) of the RP Act read along with Sec.83 of the said Act will include a copy of the affidavit and that the defect in the copy of the affidavit (in that, it was not sworn before the Authority mentioned in Sec.81(3) of the RP Act) is fatal. Dismissal of the election petition in limine was confirmed. 9. The above decision was followed by a learned Judge of this Court in **A.Mohammed v. Nalakath Soopy** . In paragraph 9, it is held that there could not be any doubt that there must be an affidavit in support of an election petition when it contains allegations of corrupt practice and that the affidavit is an integral part of the election petition alleging corrupt practice in view of the decision in **Dr.Shipra (Smt.) and others v. Shanti Lal Khoiwal and others** . It was held that the defect in swearing of the affidavit is fatal to the election petition. 10. But, later decisions of the Supreme Court rendered by Benches of co-equal strength has not followed the law laid down in **Dr.Shipra (Smt.) and others v. Shanti Lal Khoiwal and others** . 11. **Dr.Vijay Laxmi Sadho v. Jagdish** is rendered by a Bench of co-equal strength as in **Dr.Shipra (Smt) and others v. Shanti Lal Khoiwal and others** though, without reference to the said decision. In **Dr.Vijay Laxmi Sadho v. Jagdish** , referring to the decision in **F.A.Sapa** **CRP No.352/2011** 8 ## **v. Singora** (supra) it is held in paragraph 9: “An election petition is liable to be dismissed in limine under Section 86(1) of the Act only if the election petition does not comply with either the provisions of “Section 81 or Section 82 or Section 117 of the Act”. The requirement of filing an affidavit along with an election petition in the prescribed form, in support of allegations of corrupt practice is contained in Section 83(1) of the Act. Thus an election petition is not liable to be dismissed in limine - under Section 86 of the Act, for alleged non compliance with the provisions of Section 83(1) of the Act or of its proviso. What other consequences, if any, may follow from an allegedly “defective” affidavit, is to be judged at the trial of an election petition but Section 86(1) of the Act in terms cannot be attracted to such a case.” (emphasis supplied) 12. Yet another decision on the point is **G.Mallikarjunappa and** **another v. Shamanur Shivashankarappa and others** (supra). There, again a Bench of co-equal strength of the Supreme Court considered the question regarding non-compliance of Sec.83(1) of the RP Act (corresponding to Sec.91(1) of the Act). Reference was made to the decision in **F.A.Sapa v.** **Singora** and **Dr.Vijay Laxmi Sadho v. Jagdish** . It is held in paragraph 7: “An election petition is liable to be dismissed in limine under Section 86(1) of the Act if the election **CRP No.352/2011** 9 petition does not comply with either the provisions of “section 81 or Section 82 or Section 117 of the RP Act”. The requirement of filing an affidavit along with an election petition, in the prescribed form, in support of allegations of corrupt practice is contained in - Section 83(1) of the Act. Non compliance with the provisions of Section 83 of the Act, however, does not attract the consequences envisaged by Section 86(1) of the Act. Therefore, an election petition is not liable to be dismissed in limine under Section 86 of the Act, - for alleged non compliance with provisions of Section 83(1) or (2) of the Act or of its proviso. The defect in the verification and the affidavit is a curable defect. What other consequences, if any, may follow from an allegedly “defective” affidavit, is required to be judged at the trial of an election petition but Section 86(1) of ” the Act in terms cannot be attracted to such a case. ## (emphasis supplied) 13. Learned counsel for petitioner would contend that in the above two cases, the defect was in the verification of affidavit which is a curable defect unlike the present case where the affidavit is not sworn before the proper authority mentioned in Rule 62 of the Rules. According to the learned counsel, the decisions in **Dr.Vijay Laxmi Sadho v. Jagdish and G.Mallikarjunappa and another v. Shamanur Shivashankarappa** **and others** must apply to the facts of those cases and placed reliance on the observations in paragraph 12 of the decision in **Som Mittal v. Govt. of** **CRP No.352/2011** 10 **Karnataka ((2008) 3 SCC 574** ). It is also argued by the learned counsel relying on the decision in **A.Mohammed v. Nalakath Soopy** and Article 329(b) of the Constitution of India that the challenge to the election petition can only be in accordance with the provisions of the Statute. According to the learned counsel, this Court will be justified in referring to Secs.90, 91 and 93 of the Act and holding that the defect in the affidavit in that it is not sworn either before a Magistrate of the First Class or Notary but is sworn before an Advocate is fatal affecting the maintainability of the election petition. My attention is also drawn to the decision in **V.Narayanaswamy v.** ## **C.P.Thirunavukkarasu ((2000) 2 SCC 294)** . There, a Bench consisting three Judges of the Supreme Court considered the defect in verification of the affidavit and held that the affidavit must conform not only to the form prescribed in substance but also contain particulars as prescribed by the Rules and otherwise the election petition would be liable to be rejected at the threshold. 14. But, it is after the decision in **V.Narayanaswamy v. C.P.Thirunavukkarasu** was rendered that the Benches of co-equal strength rendered the decisions in **Dr.Vijay Laxmi Sadho v. Jagdish** and **G.Mallikarjunappa and another v. Shamanur Shivashankarappa** **and others** . Though rendered by a Bench of two Judges, the Supreme Court in **Sardar Harcharan Singh Brar v. Sukh Darshan Singh and** **CRP No.352/2011** 11 **others ((2004) 11 SCC 196)** has followed the decisions in **Dr.Vijay Laxmi Sadho v. Jagdish)** and **G.Mallikarjunappa and another v.** ## **Shamanur Shivashankarappa and others** to hold that non-compliance of the proviso to Sec.83 (1) of the RP Act (corresponding to the proviso to Sec.91(1)(c) of the Act) in the matter of filing of affidavit in the prescribed form along with election petition in support of the corrupt practice will not render the election petition liable to be dismissed in limine under Sec.86(1) of the RP Act (corresponding to Sec.93 of the Act). I must also note that the decisions in **Dr.Vijay Laxmi Sadho v. Jagdish** and **G.Mallikarjunappa and another v. Shamanur Shivashankarappa and others** concern not merely the defect in verification of the affidavit but to non-compliance of Sec.83 (1) of the RP Act and its proviso (corresponding to Sec.91(1)(c) of the Act and its proviso). Therefore, there could be no distinction of the decisions in **Dr.Vijay Laxmi Sadho v. Jagdish** and **G.Mallikarjunappa and another v. Shamanur Shivashankarappa and others** on the ground that the said cases concerned only a defect in verification of the affidavit. 15. The decisions of the Supreme Court rendered by Benches of coequal strength (referred supra) where conflicting views are taken are brought to my notice. According to the learned counsel for petitioner, in such situations it is open to this Court to rely on that decision which is more elaborate in discussion and with reference to the statutory provisions. I am afraid that argument of **CRP No.352/2011** 12 ## learned counsel cannot be accepted. The Full Benches of this Court considered that question in **Joseph v. Special Tahsildar (2001 (1) KLT 958)** and **Raman Gopi and another v. Kunju Raman Uthaman (2011 (4) KLJ** **126)** and held that where there is an apparent conflict between an earlier and a later decision of the Supreme Court rendered by Benches consisting of equal number of Judges, the later decision must prevail over the earlier decision (so far as other courts, tribunals, etc. are concerned). In a later decision **(Lissy** **v. Surendran – 2008 (4) KLT 354** ) a learned Single Judge of this Court also took the view that when there are conflicting decisions by Benches of coordinate strength (of the Supreme Court), the last one prevails (so far as other courts, tribunals, etc. are concerned). 16. Learned counsel has brought to my notice the decision in **Union** ## **of India and others v. S.K.Kapoor ((2011) 4 SCC 589** ). In that case the Supreme Court was considering the binding nature of conflicting decisions of Benches of co-equal strength so far as the Benches of the Supreme Court is concerned. There, it was held that if a subsequent co-ordinate Bench of equal strength takes a view different from the prior decision of a co-ordinate Bench, the latter decision rendered without referring to the earlier decision is per incuriam. That principle can apply only so far as the Benches of the Supreme Court is concerned. So far as this court is concerned, in such situations the later decision has to be followed as decided by the Full Benches of this Court in **CRP No.352/2011** 13 **Joseph v. Special Tahsildar** and **Raman Gopi and another v. Kunju Raman Uthaman** (supra). 17. In the light of the above I am bound to follow the decisions in **Dr.Vijay Laxmi Sadho v. Jagdish** and **G.Mallikarjunappa and another v. Shamanur Shivashankarappa and others** (which is followed in **Sardar Harcharan Singh Brar v. Sukh Darshan Singh** **and others** ). Hence I hold that non-compliance of the proviso to Sec.91 (1)(c) of the Act and Rule 62 of the Rules cannot entail a dismissal of the election petition in limine under Sec.93 of the Act. What other consequence, if any, may follow from the defect in the affidavit is required to be judged at the trial of the election petition. 18. The next question is whether, for the reason that all the pages of copy of election petition given to the petitioner are not signed and attested by the respondent as true copy, the election petition is liable to be dismissed under Sec.93 of the Act? According to the learned counsel for petitioner, there is non-compliance with Sec.89(2) of the Act. 19. Under Sec.89(2) of the Act, 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”. (emphasis supplied) **CRP No.352/2011** 14 Learned counsel for petitioner has placed reliance on the decision in **Kaveri Amma v. Devaki (1996 (2) KLT 189)** and in particular, the observations in paragraph 6 of the decision. There, it is observed that a petition filed under Sec.89 of the Act should comply with all the requirements of that Section. If the petition fails to comply with all the requirements of Sec.89 of the Act, that entails a dismissal of the petition. It could not be allowed to be withdrawn for enabling the petitioner to file a proper petition in conformity with the provisions of Sec.89(2) of the Act. The provision contained in Sec.89(2) of the Act is too technical but, technicalities have to be strictly complied by the (election) petitioner if the petition is to be taken on file. This is the view taken in **Kaveri** ## **Amma v. Devaki** . 20. On the other hand, learned counsel for respondent has placed reliance on a later decision of the Division Bench of this Court in **P.Aisha** **Potty and etc. v. The Returning Officer, Kollam District Panchayat and others** (supra) and in particular the observations in paragraph 17. There, the Division Bench has referred to the decision in **Kaveri** **Amma v. Devaki** and has distinguished it. In **Kaveri Amma v. Devaki** , the copy of the election petition was not attested at all by the election petitioner under her own signature as true copy. In **P.Aisha Potty and etc. v. The Returning Officer, Kollam District Panchayat and others** , it was **CRP No.352/2011** 15 pointed out that all the pages of copy of election petition was not signed and attested as true copy by the person who challenged the election. Referring to that contention it is held: “……………Section 89(2) provides that every copy of the Election Petition filed “shall be attested by the petitioner under his own signature as true copy”. Therefore the attestation contemplated is of the whole copy furnished to the respondent and not each page forming part of the copy. As from the wording of Section 93(1) we notice that non-compliance of Section 89 is fatal, the Court below factually verified the copy of the petition furnished to the respondent and satisfied itself that the document has been attested as true copy by the Election Petitioner as well. The Court below noticed that there is compliance of Section 89(2) of the Act. The learned counsel placed reliance on Kaveri Amma v. Devaki (1996) 2 Ker LT 189 : (1996 AIHC 5032) to contend that non-compliance of Section 89(2) is fatal. But the objection raised in that case was that the copies of the Election Petition were not attested at all by the petitioner under her own signature as true copies of the petition. This is not the objection in the case in hand, as factually noticed. In this case the copies have been attested as true copies. Therefore the dictum of that decision has no application to the present case. On the materials now available, we cannot dispute this factual finding. Perhaps the petitioners may be able to let in more evidence to **CRP No.352/2011** 16 substantive their contention at a later stage.” (emphasis supplied) 21. Going by Sec.89(2) of the Act and as the Division Bench has held ## in **P.Aisha Potty and etc. v. The Returning Officer, Kollam** **District Panchayat and others** what is required is not that each and every page of the copy of election petition has to be signed and attested by the person who challenged the election as a true copy of the election petition. The provision only requires that the 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 person who challenges the election under his own signature to be a true copy. In otherwords, signing on the last page of the copy and attesting it as true copy of the election petition alone is what is contemplated by Sec.89(2) of the Act. In the present case it is not disputed that though not all the pages of copy of election petition, respondent has signed and attested as true copy at the foot of some of the pages and in particular on the last page. That has satisfied the requirement of Sec.89(2) of the Act. Therefore, dismissal of the election petition on the ground that all the pages of the copy of election petition given to the petitioner are not signed and attested by the respondent as true copy is not warranted. 22. The last point urged is that the schedule and annexure of the election petition is required to be signed and verified in the manner provided under the Code in view of the Sec.91(2) of the Act, in the present case there is **CRP No.352/2011** 17 no such verification, but there is only a signature of the respondent. In **Sukumaran v. Mohanan** in paragraph 18, it is held that the defect in verification is curable. I must also bear in mind that non-compliance of Sec.91(2) of the Act is not a ground on which the election petition could be dismissed in limine under Sec.93 of the Act in the light of the binding decisions of the Supreme Court which I have referred above. 23. In the light of what I have stated above I hold that the fact that the affidavit referred to in the proviso to Sec.91(1)(c) of the Act and Rule 62 of the Rules is not sworn before a Magistrate of First Class or Notary is not a defect which entails a dismissal of the election petition in limine under Sec.93 of the Act. What other consequence, if any, may follow from the defect if any in the affidavit is required to be judged at the trial of the election petition. That all the pages of copy of election petition served on the petitioner are not signed and attested by the respondent (when the last page is signed and attested as true copy of the election petition) does not amount to non-compliance with Sec.89 (2) of the Act. When the last page of copy of the election petition is signed and attested by the election petitioner in his own hand as true copy of the election petition, it is sufficient compliance of Sec.89(2) of the Act. The defect if any in the verification of the schedule and annexure of the election petition as required under Sub-sec(2) of Sec.91 of the Act is a curable defect and that defect cannot entail a dismissal of the election petition in limine under Sec.93 of the Act. **CRP No.352/2011** 18 24. In the light of what I have stated above, this civil revision is liable to be dismissed and I do so. I.A.No.1787 of 2011 will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**