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Kolleth Mohammed Master Vs. the Munsiff, Tirur and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKerala High Court
Decided On
Case NumberO.P. No. 6978 of 1981
Judge
Reported inAIR1984Ker202
ActsKerain Panchayat Act, 1960 - Sections 22; Kerala Panchayat (Decision of Election Disputes) Rules, 1963 - Rule 5, 5(1), 5(2), 5(3), 5(4), 5(5), 5(6) and 5(8)
AppellantKolleth Mohammed Master
RespondentThe Munsiff, Tirur and anr.
Appellant Advocate P.K. Shamsuddin and; A.A. Abdul Hassan, Advs.
Respondent Advocate Siby Mathew and; N.L. Krishnamoorthy, Advs.
DispositionPetition allowed
Cases Referred and Mithilesh Kumar v. Baidyanath.
Excerpt:
.....by amendments or by process of withdrawal of grounds in parts - petition allowed. - - the learned munsiff entered a finding that inasmuch as there was no failure to comply with the requirements of sub-rule (4) of rule 5, non-compliance with sub-rule (5) of rule 5 was of no consequence so far as the maintainability of the election petition was concerned. in any view, unless the defect or non-compliance with the sub-rules or the sub-rule which is violated affects the entire election petition, like sub-rules (1), (2), (3), (4) and (6) of rule 5 and sub-rule (1) of rule 25 there is no reason to dismiss the petition. that defect cannot be said of sub-rule (5) and at the worst infraction of that sub-rule can lead to the dismissal of the petition in so far as it relates to that ground...........of rule 5 (5) of the rules had not been complied with, raised by the writ petitioner, the learned munsiff on 7-4-1980 ordered the recounting of the votes. this decision was challenged by the returned candidate, the writ petitioner in the writ petition, o. p. 1658 of 1980-l. thiscourt by the judgment dated 1-7-1980 disposed of that writ petition directing the learned munsiff to raise an additional issue, whether the election petition filed before him was maintainable in the light of the contention raised by the writ petitioner that the election petitioner did not comply with the requirements of sub-rule (5) of rule 5 of the rules, and, therefore, the election petition was liable to be dismissed under sub-rule (8) of that rule. it was also therein stated that if the decision on.....
Judgment:

Bhaskaran Actg. C. J.

1. This writ petition, referred to the Division Bench, raises an important question of law touching the maintainability of an election petition filed under Section 22 of the Kerala Panchayat Act (the Act) and Rule 5 of the Kerala Panchayat (Decision of Election Disputes) Rules, 1963 (the Rules) when that petition in which the petitioner alleges corrupt or illegal practices is not accompanied by a list signed and verified in accordance with the provisions contained in Sub-rule (5) of Rule 5 of the Rules. A further question whether thepetitioner could seek to sustain the election petition by moving the Court to delete the ground based on corrupt or illegal practice also arises in this writ petition.

2. The writ petitioner was declared elected to Athawanad Panchayat in the election held on 18-9-1979, having obtained 427 votes as against 419 votes obtained by his rival, the second respondent herein, hereinafter referred to as the election petitioner. The election petitioner filed Election Petition No. 2 of 1979 on the file of the Munsiff of Tirur under Section 22 of the Act and Rule 5 of the Rules for setting aside the election and for declaring that he was duly elected, on the allegation that the writ petitioner had indulged in corrupt practices. It would appear that the writ petitioner contended that the election petition was bound to be dismissed for non-compliance with the mandatory requirement of Sub-rule (5) of Rule 5 of the Rules inasmuch as it was not accompanied by a list of corrupt practices signed and verified in accordance with the provisions of that sub-rule. Thereafter the election petitioner filed I. A. No. 2017 of 1979 for permission to file a list of corrupt practices, and also to amend the election petition. The Court below on 11-12-1979 dismissed this interlocutory application accepting the contentions of the writ petitioner that such an application was not maintainable in law.

3. When the election petition was taken up for hearing the writ petitioner reiterated the stand that the election petition was not maintainable for the reason that the provisions of Rule 5 (5) of the Rules had not been complied with; and, therefore, the election petition was liable to be dismissed in limine in accordance with the provisions contained in Rule 5 (8) of the Rules. Faced with this situation, the counsel for the election petitioner chose to press only one point, namely, that which related to the recounting. Rejecting the contentions, based on the non-maintainability of the election petition on the ground that the provisions of Rule 5 (5) of the Rules had not been complied with, raised by the writ petitioner, the learned Munsiff on 7-4-1980 ordered the recounting of the votes. This decision was challenged by the returned candidate, the writ petitioner in the writ petition, O. P. 1658 of 1980-L. ThisCourt by the judgment dated 1-7-1980 disposed of that writ petition directing the learned Munsiff to raise an additional issue, whether the election petition filed before him was maintainable in the light of the contention raised by the writ petitioner that the election petitioner did not comply with the requirements of Sub-rule (5) of Rule 5 of the Rules, and, therefore, the election petition was liable to be dismissed under Sub-rule (8) of that Rule. It was also therein stated that if the decision on the preliminary point went in favour of the election petitioner, the order for recounting would stand subject to certain clarifications in regard to the manner in which the recounting was to be done.

4. After the remand, the matter was disposed of by the learned Munsiff by his order dated 18-8-1980, a true copy of which is Ext. P-1; and therein the view taken by the learned Munsiff was that the ground to set aside the election based on allegations of corrupt practices not having been pressed by the election petitioner, all that was necessary was to see whether the election petition was not maintainable for non-compliance with the mandaotry provisions with regard to the other grounds raised to challenge the election. The learned Munsiff entered a finding that inasmuch as there was no failure to comply with the requirements of Sub-rule (4) of Rule 5, non-compliance with Sub-rule (5) of Rule 5 was of no consequence so far as the maintainability of the election petition was concerned. In that view the learned Munsiff again ordered recounting of the votes. Towards the end of Ext. P-1 judgment the learned Munsiff stated as follows:

'Apart from that in view of the fact that the petitioner is not seeking relief on the ground of corrupt practices, it is not necessary to go into the question of maintainability of the petition for the non-compliance of Section 5(5). If that is so it cannot be said that under Section 5 (8) for the non-compliance of the mandatory provisions, the petition is not maintainable.

X XX XX

But as far as this petition is concerned, when the allegations of corrupt practices taken as ground to set aside the election remains as not pressed, we have only to consider the other grounds taken to set aside the election and to see whether thepetitioner has complied with the mandatory provisions with regard to that matters taken as a ground to set aside the election.'

5. Aggrieved by Ext. P-1 judgment the writ petitioner filed O. P. No. 3016 of 1980-L which was dismissed by this Court by the judgment dated 18-3-1981, a true copy of which is Ext. P-2. Agreeing with the reasoning of the learned Munsiff this Court in Ext. P-2 judgment expressed the view:

'In any view, unless the defect or non-compliance with the sub-rules or the sub-rule which is violated affects the entire election petition, like Sub-rules (1), (2), (3), (4) and (6) of Rule 5 and Sub-rule (1) of Rule 25 there is no reason to dismiss the petition. That defect cannot be said of Sub-rule (5) and at the worst infraction of that sub-rule can lead to the dismissal of the petition in so far as it relates to that ground. Even if such partial dismissal is impermissible, no problem need arise in the instant case for with the 2nd respondent not pressing the ground, it has ceased to be in controversy leaving the rest of the grounds intact. I do not agree that the petition is liable to dismissal on the ground of non-compliance with Sub-rule (5)'.

6. The writ petitioner carried the matter in appeal; and Writ Appeal No. 168 of 1981 filed by him was allowed by a Division Bench of this Court as per the judgment dated 23-7-1981, a true copy of which is Ext. P-3 The Division Bench pointed out inter alia, that in the present case no application for leave to withdraw the election petition or any part thereof as required under Rule 24 (2) had been filed; nor did the learned Munsiff notice Rule 24 (4) of the Rules or decide that leave was to be granted or not. It further stated that the withdrawal or abandonment of a part of the claim advanced in the election petition was governed by the rule applicable to withdrawal and abandonment of the election petition as a whole was well settled by the decision of the Supreme Court in Mallappa Basappa v. Basavaraj Ayyappa, AIR 1958 SC 698 (703-4). The conclusion reached by the Division Bench was that the election petitioner had not withdrawn the allegations of corrupt practices and his claim to set aside the election on that score. The result was that the Division Bench directed the learned Munsiff to decide Issue No. 4as directed in O. P. No. 1658 of 1980 and in the light of what was stated in that judgment (Ext. P-3).

7. When the matter was received back in the Court below, the election petitioner filed I. A. No. 1312 of 1981 purported to be under Sub-rule (2) of Rule 24 of the Rules for permission to withdraw all the allegations with regard to corrupt practices. The learned Munsiff passed orders on that application on 28-11-1981, a true copy thereof is Ext. P-4. Though in paragraphs 1 and 2 of Ext. P-4 order reference is made to the directions in the judgments in O. P-1638 of 1980 and W. A. No. 168 of 1981 (Ext. P-3) that additional Issue No. 4 'whether the petition is maintainable for not complying with the provisions contained in Rule 5 (5) of the Kerala Panchayats (Decision of Election Disputes) Rules 1963' was to be first decided before considering the other questions, that question, is not seen to have been decided, What, on the other hand, the learned Munsiff did was to decide I. A. No. 1312 of 1981 which was an application filed by the election petitioner for permission to withdraw the allegations with respect to the corrupt practices. The present writ petition has been filed by the petitioner to challenge the validity of Ext. P-4 order.

8. It was contended by Sri P. K. Shamsuddin, the counsel for the petitioner, that Ext. P-4 order was passed in contravention of the direction contained in Ext. P-3 judgment of the Division Bench of this Court and, therefore, it was liable to be quashed. It was pointed out that the real direction given by the Division Bench in Ext. P-3 judgment was to consider preliminarily whether the election petition was liable to be rejected under Sub-rule (8) of Rule 5 of the Rules as directed in O. P. No. 1658 of 1980; and, therefore that direction could not be allowed to be circumvented by admitting to the file a new interlocutory application and deciding the merits of that application as though the application in the form in which it was filed was maintainable. In substance the submission made by Sri Shamsuddin was that Ext. P-4 order was passed in violation of the directions given by this Court in Ext. P-3 judgment and, therefore, it was liable to be quashed. It was also contended that once an election petition was set in motion, it was not open to a party to withdraw it in parts.

9. Now we will extract below Sub-rules (5) and (8) of Rule 5 of the Rules with which we are intimately concerned in this writ petition:

'(5) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or Illegal practice and the date and place of the commission of each such practice,

(8) If the provisions of Sub-rule (1), (2), (3), (4), (5) or (6) of this rule or Sub-rule (i) of Rule 25 are not complied with, the Munsiff shall dismiss the petition.'

It is the admitted case that the main allegation, if not the only allegation, urged as a ground in the election petition for setting aside the election was that the writ petitioner was guilty of corrupt and illegal practices. That the election petition was filed without complying with the provisions of Sub-rule (5) of Rule 5 of the Rules, therefore, admits of no doubt. The normal consequence would have been the dismissal of the election petition as mandated by Sub-rule (8) of Rule 5 of the Rules. The Division Bench in Ext. P3 judgment directed the learned Munsiff to decide that issue as a preliminary point; instead of doing that, what the learned Munsiff is seen to have done is to admit a new interlocutory application for permission to withdraw the ground relating to corrupt practices alleged and to decide that question which could not be said to be in obedience to the directions given in that judgment. That apart, the real question is whether the election petition which admittedly did not conform to the mandatory provisions of Sub-rule (5) of Rule 5 of the Rules was not liable to be dismissed straightway for that reason as enjoined by Sub-rule (8) of that rule. In other words, could the election petitioner be allowed to get over that consequence which flows from the non-compliance with the provisions of Sub-rule (5) of Rule, 5 read with Sub-rule (8) of that rule by resorting to withdrawal of the allegations in support of the ground of corrupt practices and to seek to have theelection set aside on other grounds, if any.

10. In our view the position is clear and is beyond doubt. Sub-rule (8) of Rule 5 is positive that if the provisions of any of the Sub-rules (1), (2), (3), (4), (5) or (6) of Rule 5 are not complied with, the Munsiff has no other option but to dismiss the election petition. It would also mean that an election petition which does not comply with the provisions of the various sub-rules of Rule 5 is not maintainable in law and is liable to be dismissed straightway. For the application of Sub-rule (6) of that rule which empowers the Munsiff to allow the amendment of the particulars included in the list mentioned in Sub-rule (5), there should necessarily have been a list accompanying the election petition. Sub-rule (6) of Rule 5 does not in terms empower the Munsiff to allow to introduce a list for the first time; and that would mean that the absence of a list signed and verified in the manner prescribed is not a defect which could be cured by the introduction of a new list after the filing of the election petition. In other words, where there is a violation of the mandatory provision that an election petition in which corrupt practice is alleged as a ground is not accompanied by a list signed and verified in the manner prescribed, the defect goes to the very root of the matter which could not be cured subsequently, and the Munsiff is left with no other option except to dismiss the election petition straightway in accordance with the provisions contained in Sub-rule (8) of Rule 5. The right to challenge an election is a statutory right and, therefore, the terms of that statute have to be complied with. The legislative policy behind the statute is to put a stop to the proceeding at its very inception if the election petitioner failed to comply with the mandatory provisions contained in the Rules, These provisions have to be construed strictly, not liberally so as to defeat the object and purpose of the provisions contained in the Act and the Rules.

11. In K. Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687 the Supreme Court has held that a preliminary objection with regard to the non-compliance with the provisions of Section 117 of the Representation of the People Act, should be entertained and decided at the initial stage, and should not be relegated to thestate of hearing the petition. Though the election petitioner attempted to make out a case of non-compliance with the provisions of Section 117 of the Representation of the People Act, in as much as the treasury receipt for furnishing security for the costs of the petition was not obtained in the name of the proper person, on facts the Supreme Court found that there was no defect in that respect. It was also held in that decision that the non-joinder of necessary parties to the election petition could not be cured by amendment inasmuch as the Election Tribunal had no power to grant such an amendment, be it by way of withdrawal or abandonment of a part of the claim or otherwise, once the election petition had been presented with the election petitioner claiming such further declaration.

12. In paragraph 8 of the decision of the Supreme Court in Mohan Raj v. Surendra Kumar, AIR 1969 SC 677, referring to Section 86(1) of the Representation of the People Act which lays down--

'The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117'-

Hidayatullah, C. J., who spoke for the Bench, has observed as follows, at page 680 of the report:

'This is a peremptory provision and admits of no exception. The Court must enforce it strictly if there is a non-compliance with the requirements of Section 82 among others'

In paragraph 10 of the same Judgment, at page 681 of the report, there is also the following observation:

'No doubt the power of amendment is preserved to the Court and Order 1, Rule 10 enables the Court to strike out parties but the Court cannot use Order 6, Rule 17 or O, 1, Rule 10 to avoid the consequences of non-joinder for which a special provision is to be found in the Act. The court can order an amendment and even strike out & party who is not necessary. But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all. The Civil Procedure Code applies subject to the pro-visions of the Representation of the People Act and any rules made thereunder (see Section 87). When the Act, enjoins thepenalty of dismissal of the petition for non-joinder of a party the provisions of the Civil Procedure Code cannot be used as curative means to save the petition.'

13. In Charanlal v. Nandkishore, AIR 1973 SC 2464, towards the end of paragraph 5, at page 2467, Jaganmohan Reddy, J., who spoke for the Bench, has observed as follows:

'The marginal note of Section 86, namely 'Trial of election petitions', does not indicate that under Sub-section (1) of Section 86 an election petition cannot be dismissed for non-compliance with the provisions set out therein, unless notice is issued to the respondent. Where the language is clear and can admit of no other meaning such as is evident from Sub-section (i) of Section 86, the marginal note cannot be read to control that power.'

In paragraph 6 of the same judgment the view expressed by the learned Judge is

'We are clearly of the view that the non-deposit of the security along with the election petition as required under Section 117 of the Act, leaves no option to the court but to reject it.'

14. The above decision (AIR 1973 SC 2464) has been noticed by Chandrachud, C. J., who spoke for the Bench in Aeltemesh Rein v. Chandulal, AIR 1981 SC 1199, wherein in paragraph 3 at page 1200 it is stated as follows:

'The only question which survives is as to what is the consequence of non compliance with Section 117 of the Act. That question has been settled by the decision of this Court in Charan Lal v. Nand Kishore, (1974) I SCR 294 : AIR 1973 SC 2464, wherein it was held that the High Court has ho option but to reject an election petition which is not accompanied by the payment of security amount as provided in Section 117 of the Act, Section 86(1) of the Act provides that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82., or 117. In that view of the matter, the High Court was right in dismissing the election petition summarily.'

15. Reference could also be made to the decision of the Supreme Court in Mithilesh Kumar v. Baidyanath, AIR 1984 SC 305. That was a ease where the election petitioner had made allegations of corrupt practices against the electedCandidate. The Supreme Court pointed out that in the copy of the petition supplied to the returned candidate there were mistakes as regards the names of the persons in the list that is to say complete omission of some names which had been mentioned in the election petition but not in the copy, giving wrong names, and some names given in the petition appeared to be males, but in the copy they appeared to be females. Pointed out these mistakes the Supreme Court observed that the mistakes in the copy of election petition were vital and would seriously, prejudice the defence and that in those circumstances the election petition was liable to be dismissed in limine. In paragraph 15 of the decision at page 307, Fazal Ali, J., who spoke for the Bench, has summarised the principles which should govern the point in issue. The learned Judge said:

'(1) That where the copy of the election petition served on the returned candidate contains only clerical or typographical mistakes which are of no consequence, the petition cannot be dismissed straightway under Section 86 of the Act;

(2) a true copy means a copy which is wholly and substantially the same as the original and where there are insignificant or minimal mistakes, the Court may not take notice thereof;

(3) where the copy contains important omissions or discrepancies of a vital nature, which are likely to cause prejudice to the defence of the returned candidate it cannot be said that there has been a substantial compliance of the provisions of Section 81(2) of the Act.

(4) prima facie, the statute uses the words 'true copy' and the concept of substantial compliance cannot be extended too far to include serious or vital mistakes which shed the character of a true copy so that the copy furnished to the returned candidate cannot be said to be a true copy within the meaning of Section 81(3) of the Act; and

(5) as Section 81(3) is meant to protect and safeguard the sacrosanct electoral process so as not to disturb the verdict of the voters, there is no room for giving a liberal or broad interpretation to the provisions of the said section.'

16. The decision of the Supreme Court in P. Nalla Thampy v. B. L. Shanker, AIR 1984 SC 135 stands on a differentfooting. That was a case where order for omission of one of the reliefs claimed in the petition, pasred earlier, and which had become final, was held to be not challengeable at a later stage. In paragraph 8 of the judgment at page 137 of the report Ranganath Misra, J., who spoke for the Bench, had also quoted the words of Mahajan, C. J. in Jagan Nath v. Jaswant Singh, 1954 SCR 892 at p. 895 : AIR 1954 SC 210 at p. 212, as follows:

'The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action of law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.'

17. Shri Siby Mathew, the counsel for the election petitioner, however, sought to support Ext. P4 order impugned in this writ petition placing reliance on the decision of the Supreme Court in Shiv Chand v. Ujagar Singh, AIR 1978 SC 1583. That was a case in which the appellant before the Supreme Court was the election petitioner, he having been a defeated candidate in the General Elections held in June, 1977. There were qute a few candidates, including one Shri Malsingh who appears to have had retired from the contest for the seat although duly nominated as a candidate. The petitioner challenged the election by filing a petition wherein, inter alia, he made allegations constituting the corrupt practice against the returned candidate and Shri Malsingh. Section 82 of the Representation of the People Act is attracted to such a case; and that provision states that a petitioner shall join as respondent to his petition any candidate against whom allegations of any corrupt practice are made in the petition. The respondent, in his written, statement, raised a preliminary objection that the failure to join Shri Malsingh as a respondent entailed dismissal of the election petition. The petitioner filed two applications, one for bringing on record Shri Mal Singh, and the other to delete the corrupt practice imputed to Sri Mal Singh, Both these petitions were dismissed by the High Court. The Supreme Court, however, reversed the decision of the High Court dismissing the application by Sri Mal Singh to come on record exercising the procedural Tight he had under Section 86(4) of the said Act.

18. Whatever Krishna Iyer, J., spoke for the Bench in that case has to he understood in the context in which it was said. In our opinion, the observations have to be understood in the background of the contention of the election petitioner that in exercise of the statutory provision under Section 86(4) of the said Act he had a right to come on record and that could not be denied to him. That position has been sufficiently made clear by Krishna Iyer, J., in paragraph 8 at page 1585. Repelling the contentions of the respondent before the Supreme Court, the learned Judge stated:

'Obviously that cannot be done because the provisions of the Representation of the People Act where they lay down specific prescriptions must prevail and cannot be frustrated by importing the Code of Civil Procedure. Here, however, Section 86(4) of the Act itself entitles Mal Singh to be joined as respondent. That right cannot be defeated and once he comes on record as party the petition is in order and cannot be dismissed for non-joinder.'

It may also be noted that no reference is made by Krishna Iyer, J., in that judgment of the decision of the Supreme Court in Kamaraja Nadar's case, AIR 1958 SC 687 where the Supreme Court had laid down that the preliminary objection with regard to the non-compliance with the provisions of Section 117 of she Representation of the People Act, should be entertained and decided at the initial stage and should not be relegated to the stage of hearing the petition and that the non-joinder of necessary parties to the election petition could not be cured by amendment. In the light of the subsequent decisions of the Supreme Court in Aeltemesh Rein v. Chandulal, AIR 1981 SC 1199 and Mithilesh Kumar v. Baidyanath. AIR 1984 SC 305 we have no doubt that the observations of Krishna Iyer, J. on the facts of that case (Shiv Chand's case, AIR 1978 SC 1583) could not be understood to lay down a principle thatif an election petition is filed without complying with the mandatory provisions, such a petition would not he liable to be dismissed straightway, but could be allowed to be cured by amendments or by the process of withdrawal of the grounds in parts.

19. For the foregoing reasons we allow the writ petition quashing Ext. P4. The learned Munsiff would decide the matter in accordance with law and following the directions given by this Court in Ext. P 3 judgment. There will be no order as to costs.


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