IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 13TH JUNE 2008 / 23RD JYAISHTA 1930 WP(C).No. 17308 of 2008(I) -------------------------- OPEP.8/2005 of MUNSIFF COURT, THALIPARAMBA .................... PETITIONER: ---------- I.V. GOVINDAN, S/O KANNAN, ILLAT VALAPPIL,P.P.XII -340, VELICHANKIL PATTUVAM P.O., PATTUVAM GRAMA PANCHAYATH, PATTUVAM AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADV. SRI.K.T.POULOSE (KORATTY) RESPONDENT: ---------- MUSTHAFA, S/O UMMER, KALLADATH KIDARAM VALAPPIL P.P.XII -26, VELICHANKIL, PATTUVAM P.O., PATTUVAM GRAMA PANCHAYATH, PATTUVAM AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No.17308 OF 2008 ............................................ DATED THIS THE 13th DAY OF JUNE, 2008 JUDGMENT Petitioner is a successful candidate in the election conducted to Ward No.12 of Pattuvam Grama Panchayat. Respondent filed O.P.(Election)No. 8 of 2005 to declare the election of petitioner null and void and to declare respondent as duly elected candidate on the ground of corrupt practice as well as double voting. Petitioner filed Ext.P3 counter statement denying the allegations. He prayed for an order dismissing the application under Section 93(1) of Kerala Panchayat Raj Act 1994(in short 'the Act'). What was contended by the petitioner was that as provided under proviso to Section 91(1)(c) of the Act, respondent has to file an affidavit in the prescribed form, in support of the allegation of such corrupt practice and particulars thereof and the affidavit filed by petitioner is not in accordance with the proviso to Section 91(1)(c) of the Act and the affidavit does not disclose the source from which respondent obtained the information and it is not in the prescribed form and therefore election petition is not maintainable. 2. Learned Munsiff, under Ext.P1 order, found that the WP(C) 17308/2008 2 election petition cannot be dismissed at the threshold for violation of the provisions of Section 91(1)(c) of the Act. It is challenged in this petition filed under Article 227 of Constitution of India. 3. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that learned Munsiff, under Ext.P1 order, not only considered the question whether for non-compliance of the provisions of Section 91(1)(c) an election petition could be dismissed, but also whether there is compliance with Section 91(1)(c) of the Act and that finding is not sustainable. 4. On hearing the learned counsel, I do not find any reason to interfere with Ext.P1 order. An election petition can be dismissed at the threshold only as provided under sub-section (1) of Section 93. Such a dismissal could only be, if the election petition does not comply with the provisions of Section 89 or Section 90 or Section 115 of the Act. Section 89 provides presentation of election petition. Under the said section, an election petition has to be presented on one or more of the grounds specified in Section 102 and Section 103, to the appropriate court specified in Section 88, by the candidate, or, by any elector, within thirty days from the date on which the returned candidate was declared elected and an election petition WP(C) 17308/2008 3 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 90 provides as to who all are parties to an election petition. Section 115 deals with the security of cost. The case of petitioner is not that there is non compliance of either Section 89 or 90 or Section 115. Therefore election petition cannot be dismissed as provided under Section 93(1) at the threshold, even if there is non-compliance with the provisions of Section 91(1)(c) of the Act. Therefore learned Munsiff rightly found that election petition cannot be dismissed. The argument of the learned counsel is that finding of the learned Munsiff with regard to the compliance with the provisions of Section 91(1)(c) is not correct. It is not necessary to consider that question in this petition. The question whether there is compliance with Section 91(1)(c) is to be decided when election petition is disposed after recording the evidence and the impugned Ext.P1 order will not stand in the way of the Munsiff, considering the question. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-