C.P. Rajan vs Thalappilly Radhakrishnan and Another

Balagangadharan Nair, J.—Petitioner and the 1st Respondent were the rival candidates for election to the Wadakkancherry Panchayat from ward No. 10. The election took place on 18th September 1979 and the Petitioner who secured the majority of votes was declared elected on 19th September 1979. The first Respondent thereupon filed an election petition--Election O.P. No. 24 of 1979--before the Munsiff, Wadakkancherry, the 2nd Respondent, challenging the petitioner''s election on the ground of certain alleged corrupt practices. Although the petition mentioned these practices it was not accompanied by a list as required by Rule 5(5) of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963 which provides:

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.

Rule 5(8) which is the other relevant provision that falls to be considered reads:

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

The Petitioner raised a preliminary objection before the 2nd Respondent that the election petition was liable to dismissal under Rule 5(8) for non-compliance with the provisions of Rule 5( ). By his order Ext. P-1, dated 29th March 1980 the 2nd Respondent overruled the objection in the view that the defect was only a formal one and as there was substantial compliance with Rule 5(5) the petition should be tried on the merits. In support of his conclusion the 2nd. Respondent referred to a number of decisions of the Supreme Court which in his view had laid down that substantial compliance with the analogous provisions of the Representation of People Act, 1951 was sufficient. He also referred to Rule 11 which prescribes that "Subject to the provisions of the Act and of any rules made thereunder, every election petition shall be tried by the Munsiff, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of the 1908) to the trial of suits" and contended that as the CPC applies ''it goes without saying that any formal defect can be cured at any point of lime and justice should not suffer for any formal or procedural defect."

The Petitioner challenges the order Ext. P-1.

The 1st Respondent has not entered appearance.

The reliance on Rule 11 and the conclusion that the possibility of such a defect being curable under the Code of Civil Procedure, made in Ext. P-1 is misplaced for, apart from other things, the opening words of Rule 11 give primacy to the Act and the rules, rather than the Code in the trial of election Petitions and the Code itself could be applied only as far as may be the Act and the Rules--here the Rules for the Act is silent-must therefore be the determining consideration.

The 2nd Respondent has referred to several decisions as supporting his view. It is necessary to examine these decisions, all under the Representation of People Act, as counsel for the Petitioner maintained that they do not support the 2nd Respondent�s conclusion.

The first of the cases Dhoom Singh Vs. Prakash Chandra Sethi and Others, has no relevancy as it merely ruled, so far as material, that non-compliance with the requirements of Section 81(3) of the Representation of People Act in the Petitioner not attesting copies of the election petition to be true copies and in not signing them could not have the effect of withdrawing the election petition, even assuming such conduct to be collusive or fraudulent.

Shri Udhav Singh Vs. Madhav Rao Scindia, is equally irrelevant as it was merely concerned with the question of non-joinder of parties, construction of pleadings and the distinction between material facts and particulars in the Representation of People Act.

I could not find what bearing Balwan Singh Vs. Prakash Chand and Others, has on the Point. It therefore calls for no discussion.

In Thakur Virendra Singh Vs. Vimal Kumar, an objection was taken that the verification of the election petition and the affidavit did not contain sufficient particulars of the corrupt practices attributed to the successful candidate. Section 83 which deals with the contents of the election petition provides by Sub-section (1)(b) that it "shall set forth full particulars of any corrupt practice that the Petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice;" The proviso to Sub-section (1) lays down that "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". The Supreme Court found that the allegations of corrupt practice and particulars thereof as given in paragraph 13 of the election petition were sufficiently clear and precise and that the affidavit accompanying the petition in support of the allegations of corrupt practice and the particulars thereof also conformed to the prescribed form. The court held that in these circumstances the preliminary objection for dismissal of the petition could not be sustained. The court also relied upon Section 99 of the CPC which says that a defect which does not affect the merits of the case or the jurisdiction of the court cannot invalidate the decision. (The appeal in that case was from the final decision of the election petition.) In my view the case has no application and it does not in any event settle the question in favour of the 1st respondent.

The provisions in the Representation of People Act are different from the present rules and it is not likely that any decision on the former would conclude the question involved in the present case. For that reason it is not also necessary to discuss too many cases on the Act.

In Sharif-ud-din Vs. Abdul Gani Lone, the Supreme Court observed:

Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.

Section 89(3) of the Jammu and Kashmir Representation of the People Act, 1957 provided that 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. Section 94(1) laid down that the High Court shall dismiss an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 25. These provisions correspond to Section 81(3) and Section 86(1) respectively of the Representation of People Act, 1951. In the case that arose before the Supreme Court copies of the election petition were attested as true copies by the Advocate but not by the petitioner. The Supreme Court held that the provision for attestation was a mandatory requirement and that non-compliance with the requirement should result in the dismissal of the petition as provided in Section 94.

This case and the observations quoted above provide support to the petitioner. The language of Rule 5(5) is clearly mandatory and so is the language of Rule 5(8). The object of Sub-rule (5) is to provide the Respondent to the petition, invariably the successful candidate with a list, Containing full particulars as therein detailed, of any corrupt or illegal practice so as to give him complete notice to defend himself effectively. The importance attached to the provision is obvious from Sub-rule (8) which mandates that if the provisions, inter alia, of Sub-rule (5) are not complied with the Munsiff shall dismiss the petition. As the rule prescribes the manner of doing the act and also the consequence 6f non-compliance, the prescribed consequence must follow in view of the non-compliance. The order Ext. P-1 is therefore liable to be set aside.

Ext. P-1 is quashed. The 2nd Respondent will proceed according to law and in the light of this decision. The Original Petition is allowed but without costs.