Vilasini Poyilil v. Valsala @ P.T. Valsala Teacher; Binitha; The Secretary, Kottur Grama Panchayat; The Returning Officer, Kottur Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940** **CRP.No. 588 of 2017** **I.A.NO.2215/2016 IN E.O.P.NO.4/2015 of MUNSIFF COURT, KOYILANDY DATED 27-09-2017** ## **REVISION PETITIONER/PETITIONER:** **VILASINI POYILIL, 46 YEARS,W/O.VENU.P,ASHA WORKER, 'KIZHACKE KORONGIL'HOUSE,KOTTUR(P.O.), KOTTUR DESOM,KOYILANDY TALUK,KOZHIKODE(DIST).** **BY ADVS. SMT.K.DEEPA (PAYYANUR) SMT.AKHILA K NAMBIAR** ## **RESPONDENTS/RESPONDENTS:** **1 VALSALA @ P.T. VALSALA TEACHER, 56 YEARS,W/O.K.V.GOPALAN NAIR, SREEVALSAM HOUSE, KOTTUR(P.O),KOYILANDY,KOZHIKODE(DIST),PIN-673618. 2 BINITHA, W/O.RAJESH,AYYAPPANMACKOOL HOUSE, KOTTUR(P.O),KOYILANDY,KOZHIKODE(DIST),PIN-673618. 3 THE SECRETARY, KOTTUR GRAMA PANCHAYAT, AVITANALLUR(P.O),KOYILANDY,KOZHIKODE(DIST), PIN-673618. 4 THE RETURNING OFFICER, G-11037, KOTTUR GRAMA PANCHAYATH, DAIRY EXTENSION SERVICE OFFICER, BALUSSERY BLOCK,BALUSSERY,PIN-673618.** **R1 BY ADVS. SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR R3 BY ADVS. SMT.M.MANJU SRI.R.SUDHISH** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 8.3.2019, THE COURT ON 15.03.2019 PASSED THE FOLLOWING:** **CRP.No. 588 of 2017 : 2 :** ## **T.V.ANILKUMAR, J.** ## **--------------------------------C.R.P.No.588 of 2017 ---------------------------------Dated this the 15[th] day of March, 2019** ## **O R D E R** The 1[st] respondent in E.O.P.No.4/2015 before the Munsiff Court, Koyilandy challenged the maintainability of the election petition through I.A.No.2215/2016 and being aggrieved by the impugned order dismissing the petition on 27.9.2017, she filed this Civil Revision Petition under Section 115 of the Code of Civil Procedure. 2. The election petition was filed by the 1[st] respondent in this revision petition. She was a candidate sponsored by Indian National Congress in an election held to Ward No.18 of Kottur Grama Panchayat on 2.11.2015. She secured 515 votes whereas the returned candidate, who is the petitioner herein and the 1[st] respondent in the election petition also secured equal votes. A BJP candidate who is the 2[nd] respondent in the election petition secured only 81 votes. In view of the equality of votes secured by petitioner and the 1[st] respondent herein, the returning officer by draw of lot ## **CRP.No. 588 of 2017 : 3 :** declared the petitioner herein to be as the returned candidate. Being aggrieved by the decision of the returning officer, the 1[st] respondent herein filed E.O.P.No.4/2015 challenging the validity of election on the ground that a few postal ballot votes were improperly rejected by the returning officer and the rejection materially affected the result of the election. The petitioner herein challenged the maintainability of the election petition on the ground that many of the mandatory provisions of the Kerala Panchayat Raj Act, 1994 (for short 'the Act') were not complied with by the 1[st] respondent. The court below, by impugned order dated 27.9.2017 on I.A.No.2215/2016 dismissed the plea objecting maintainability and held the election petition to be in order. The subject matter of challenge in this Civil Revision Petition is the correctness of the order passed by the Munsiff Court, Koyilandy. 3. The petitioner as well as 1[st] respondent secured 7 postal votes out of the total 17 postal votes cast in the election dated 2.11.2015. The remaining 10 votes were rejected by the returning officer on the ground that the voters ## **CRP.No. 588 of 2017 : 4 :** failed to write their names in Form No.16 of Kerala Panchayat Raj (Conduct of Election) Rules, 1995 and therefore those votes are invalid. The contention of the petitioner in the election petition is that the postal voters had, in fact, signed the declaration in Form No.16 and also subscribed their signatures attested as per Form No.17 and therefore the postal votes cast by 10 voters were valid under law. 4. Under Section 102(1)(d) and (iii) of the Act, improper rejection of a valid vote is a ground for setting aside an election since such rejection affects the result of the election. According to the 1[st] respondent who questioned the maintainability of the election petition, there is no sufficient cause of action to maintain the election petition since the election petitioner has not put forth a case that he would have secured the majority of postal votes if they had not been improperly rejected by the returning officer. 5. Another ground taken up to challenge the maintainability of the election petition is that there is no concise statement of material facts as required by Section 91 (1)(a) of the Act and therefore the petition warrants a ## **CRP.No. 588 of 2017 : 5 :** dismissal under Section 93 of the Act. Misjoinder of returning officer is another ground taken up for canvassing dismissal of the petition. It is further alleged that there is no proper verification as required by Order VI Rule 15 of the C.P.C. and the schedule of documents was not at all verified as required by law. Non supply of true copy of properly attested election petition is also one of the grounds pressed into service for dismissal of the petition. The court below, after considering the rival submissions made by the contesting parties, dismissed I.A.No.2215/2016 and allowed the election petition to proceed as if it is in order. 6. I heard the learned counsel for the petitioner as well as the 1[st] respondent. 7. On a perusal of the election petition as a whole, I am satisfied that there is concise statement of material facts as opined by the court below. There is also proper verification of the pleadings in compliance with Order VI Rule 15 of the C.P.C. Same is the view taken by the court below also. Misjoinder of parties is not a reason to dismiss an election petition as held in **Chintha Dharmarajan** v. **Mary Anto** [ **2002** ## **CRP.No. 588 of 2017 : 6 :** **(2) KLT 478]** . The contention of the petitioner appears to be that the list of documents referred to in the election petition below the relief column formed integral part of the pleadings and therefore the respondents were entitled to be supplied with copies of documents as well as the petition duly signed and verified by the petitioner herself. This argument can hold good only if the list of documents could be construed as forming part of the pleadings and not otherwise. On going through the pleadings as a whole, I am satisfied that the election petitioner never intended to treat the list of documents mentioned in the original petition to form part of the pleadings at all. Those documents were intended only to be tendered in evidence in support of the case of the petitioner. List of documents not being part of the pleadings in my opinion, the respondents were not entitled to copies of those documents also as required by Section 91(2) of the Act. This appears to be the legal position laid down in **Joshi C.P.** v. **Kalyan Singh Chouhan and Another** , **[2010 KHC 6990]** , **Harischandra** v. **S.K.Mohammed and Others [1996 (1) KLJ 591]** , **Mary Thomas** v. **Anil Akkara and Others [2017 (2)** **CRP.No. 588 of 2017 : 7 :** **KHC 518]** . Therefore, non supply of true copy of petition in the manner indicated in Section 89(2) and Section 91(2) of the Act is not a legal ground on which the election petition could be dismissed at the very threshold. Even otherwise also, it is not a matter which goes to the merit of the dispute in question and therefore itself such a defect could be allowed to be cured by the court below before passing an order of dismissal. This legal position is discernible from **Umesh** v. **Challiyil K.P.Rajendran [2008 (2) KHC 4 (SC)].** 8. It was lastly argued by the learned counsel for the petitioner that in the absence of returned candidate averring in this election petition that had the improperly rejected votes been counted as valid votes in her favour, she would have won the election, no cause of action for setting aside the present election petition could be said to have arisen. I do not agree to this contention because Section 102(1)(d) (iii) of the Act provides that the improper rejection of a valid vote by itself is a ground for declaring an election to be void. It goes without saying that if the 10 postal ballot votes polled are proved to have been improperly rejected, it would materially **CRP.No. 588 of 2017 : 8 :** affect the result of the election in sofar as it concerns the returned candidate, the petitioner herein. In **Tara Prasad Bahinipati** v. **Rabi Narayan Nanda** [ **2018 KHC 2060]** , it was held that even in the absence of averment that improper acceptance of vote would have materially affected the result of returned candidate, the election petition cannot be dismissed on the ground of non disclosure of cause of action. 8. Having gone through the objections raised by the petitioner herein as to maintainability and having heard the rival submissions of the parties, I am satisfied that no ground is made out for accepting the plea of non maintainability and dismissing the election petition. In my view, the impugned order requires only to be confirmed. In the result, C.R.P.No.588/2017 fails and it is dismissed confirming the impugned order dated 27.9.2017 in I.A.No.2215/2016 in E.O.P.No.4/2015 on the file of Munsiff Court, Koyilandy. Sd/- ## **T.V.ANILKUMAR, JUDGE** Bb _[True copy] P.A to Judge_