IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 952 of 2008(L) ------------------------ OP.1/2005 of J.M.F.C.,PEERUMEDU .................... PETITIONER: ------------ M.T.LISSY,W/O. WILSON KUNNEL HOUSE,IIC PUTHUVAL, VANDIPERIYAR GRAMA PANCHAYATH, MANJUMALA VILLAGE. BY ADV. SRI.P.K.MUHAMMED RESPONDENTS: ------------- 1. K.K.SURENDRAN,AGED 43,S/O. KUMARAN KUNNEL HOUSE, 110 PUTHUVAL, VANDIPERIYAR GRAMA PANCHAYATH, THENGAKKAL P.O., MANJUMALA VILLAGE. 2. RETURNING OFFICER, ASST.REGISTRAR CO-OPERATIVE SOCIETIES, PEERMADE VANDIPERIYAR GRAMA PANCHAYATH PEERMADE KARA, PEERMADEPO, MANJUMALA VILLAGE ,IDUKKI DISTRICT. 3. THE ELECTORAL REGISTRATION OFFICER (SECRETARY) VANDIPERIYAR GRAMA PANCHAYATH VANDIPERIYAR PO, MANJUMALA VILLAGE , IDUKKI DISTRICT. 4. ANTONY VARKEY KUTHUKALLUNGAL HOUSE,MLAMALA, THENGAKKAL P.O., VANDIPERIYAR GRAMA PANCHAYATH MANJUMALA VILLAGE. 5. AVI.K.R., PUTHENMADATHIL HOUSE, THENGAKKAL P.O.,VANDIPERIYAR GRAMA PANCHAYATH MANJUMALA VILLAGE. BY ADV. SRI.JOICE GEORGE FOR R3 SRI.GEORGY GEORGE FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1: TRUE COPY OF ELECTION O.P. NO. 1 OF 2005 ON THE FILE OF MUNSIFF COURT PEERMEDE DATED 24-10-2005. EXT.P2: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 20-2-2006 EXT.P3: TRUE COPY OF THE I.A. NO. 171 OF 2006 DATED 20-2-2006 OF THE HON'BLE ELECTION COURT PEERUMADE EXT.P4: TRUE COPY OF THE ORDER IN I.A. NO. 171 OF 2005 DATED 13-12-2007 IN O.P. NO. 1/2005 OF THE HON'BLE ELECTION COURT PEERUMADE /true copy/ P.A. to Judge V. RAMKUMAR, J --------------------------- W.P.(C) No. 952 of 2008 --------------------------- Dated: 16-09-2008 Judgment The petitioner who was the successful candidate from Ward No. 21 of Wandiperiyar Grama Panchayath in an election which was held on 24-09-2005 was the 3rd respondent in an election petition filed by the first respondent herein as Election O.P. 1 of 2005 before the Election Court (Munsiff's Court) Peerumedu. The first respondent herein was a defeated candidate and he filed the election petition under Sec. 89 read with Sec. 90 of the Kerala Panchayath Raj Act, 1994. The petitioner herein raised a preliminary objection before the court below as to the maintainability of the election petition. The said application to consider the maintainability as a preliminary issue was registered as W.P.(C) No. 952 of 2008 -:2:- I.A. 171 of 2006. It was argued before the court below that since paragraph 9 of the election petition alleged of corrupt practices against the petitioner herein, as per the provison to Sec. 91 (c) of the Act the election petition ought to have been accompanied by an affidavit in the prescribed form. Another objection raised by the petitioner herein was that the election petition was bad for non-joinder of parties within the meaning of Sec. 90 of the Act. The court below overruled the preliminary objection raised by the petitioner herein holding inter alia that the election petitioner has not raised any corrupt practices as enumerated in the statute and there was no specific pleading of corrupt practice in the petition and therefore he was not obliged to file an affidavit in the prescribed form . With regard to the other objection raised by the petitioner herein the court below said that the election petitioner has made all the contesting W.P.(C) No. 952 of 2008 -:3:- candidates as respondents and, therefore, there was compliance of Sec. 90 of the said Act. It is the said order dated 13-12- 2007 passed by the court below which is assailed in this Writ Petition. 2. The learned counsel appearing for the petitioner submitted that there was non-compliance of Sec. 91 (1)(c) of the Act. The learned counsel took me through the election petition wherein after the schedule of documents there is a verification. According to the petitioner the election petition was also to be signed and verified in the manner laid down in the C.P.C. for the verification of pleadings and there is no such verification in the election petition as enjoined by Sec. 91 (1) (c) of the Act and there is only a verification after the the schedule of documents. The argument is that while there is compliance of Sec. 91 (2) of the Act there is non-compliance of Sec. 91 (1) (c) of the Act and this according to the learned counsel W.P.(C) No. 952 of 2008 -:4:- is fatal. 3. In the first place, the petitioner did not raise such a contention before the court below. Secondly, the verification occurring in Ext.P1 election petition is after the schedule of documents and after the signatures of the election petitioner and his counsel. The said verification reads as follows:- "I. K.K. Surendran, aged 43, S/o. Kumaran, Kunnel House, 110 Puthuval, Thengakkal P.O. Elappara Village do hereby solemnly affirm and verify that what is stated above in paragraphs 1 to 15 and the grounds 1 to 6 are true and correct to the best of my knowledge information and belief". Section 91 (2) of the Act reads as follows: “Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition”. The further verification insisted by sub Sec. 2 of Section 91 of the Act is only in cases where the petition contains a schedule or annexure . Merely because the the election petitioner has chosen to call the list of W.P.(C) No. 952 of 2008 -:5:- documents as schedule of documents, it cannot be treated as a schedule as contemplated by sub section 2 of Sec. 91 of the Act. Hence it cannot be said that there is non compliance of Sec. 91 (2) of the Act. Since there was no schedule or Annexure to the petition except a schedule of documents there was no need to apply sub section 2 of Sec. 91 by verifying the same. All that apart Sec. 93 (1) reads as follows: "The court shall dismiss an election petition which does not comply with the provisions of Sec. 89 or Section 90 or Sec. 115”. The non-compliance alleged is not of Sec. 89, 90 or 115 but Sec. 91. When the statute has not contemplated the consequence of dismissal of the election petition for the non-compliance of Sec.91 of the Act, the petitioner cannot request the court to include that also as a ground for dismissal of the petition. As for the findings recorded by the Court below with regard to the W.P.(C) No. 952 of 2008 -:6:- objections raised by the petitioner before that Court, I fully endorse the same. In that view of the matter I find no justification to entertain this Writ Petition, much less, to admit the same which is accordingly dismissed in limine. Dated, this the 16th day of September 2008. V. Ramkumar, Judge. ani