IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH OCTOBER 2011 / 6TH KARTHIKA 1933 OP(C).No. 1374 of 2011(O) -------------------------------------- OPELE.10/2010 of PRL.M.C.,ERNAKULAM .................... PETITIONER (S): --------------------------- PRABHA MURALIDHARAN W/O.MURALIDHARAN, POTTAYIL THEKKATHU EROOR SOUTH PO, TRIPPUNITHURA. BY SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE BY ADVS. SRI.S.MANU SMT.K.DEEPA (PAYYANUR) RESPONDENT(S): ---------------------------- 1. VASUNDHARA DEVI, W/O.SOMAN KORATHATTU HOUSE, EROOR WEST PO TRIPPUNITHURA 682 306. 2. ANITHA PREMKUMAR W/O PREMKUMAR, PALACATTU HOUSE EROOR PO, WEST ,TRIPPUNITHURA 682 306. R1 BY ADVS. SRI.C.S.AJITH PRAKASH, SRI.T.D.SALIM, SRI.PAUL C THOMAS. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OPC. NO.1374/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ELECTION PETITION AS OP(ELE) 10/2010 FILED BY THE IST RESPONDENT/PETITIONER OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM. P2:- COPY OF THE IA 39/2001 SEEKING AMENDMENT OF EXT.P1. P3:- COPY OF THE COUNTER AFFIDAVIT FILED IN IA. 39/2011 BY THE PETITIONER OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM. P4:- COPY OF THE ORDER IN IA. 39/2011 DT. 21.2.2011 OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1374 of 2011 ==================================== Dated this the 28th day of October, 2011 J U D G M E N T Exhibit P4, order dated 21.02.2011 on I.A. No.39 of 2011 in O.P(Ele.) No.10 of 2010 passed by the learned Principal Munsiff, Ernakulam allowing the first respondent to amend the election petition is under challenge at the instance of first respondent in the election petition, the returned candidate. 2. Petitioner and respondents 1 and 2 contested the election held on 25.10.2010 from Ward No.42 of Pottayil Constituency in Thripunithura Municipality. The votes were counted on 27.10.2010 and petitioner was declared elected by a margin of 2 (two) votes over her nearest rival, the first respondent. First respondent challenged the election on various grounds including that 5 (five) bogus voters had cast votes at the election, those votes went in favour of petitioner and if those votes are excluded from the account of petitioner, first respondent has to be declared as elected. On 01.01.2011 first respondent filed Ext.P2, application for amendment of the election petition. In the meantime on 15.01.2011 petitioner filed a counter, obviously O.P(C) No.1374 of 2011 -: 2 :- to the election petition as originally stood but averring that the request for amendment cannot be allowed. Petitioner also preferred separate objection to application for amendment. Learned Principal Munsiff by order dated 21.02.2011 (Ext.P4) allowed the application. Hence this petition in challenge of Ext.P4, order. 3. Learned Senior Advocate appearing for petitioner has contended that since the election petition lacked material averments to declare election of petitioner was void, that could not be supplemented by an amendment of the nature allowed by the learned Munsiff. Learned Senior Advocate contends that amendment caused prejudice to the petitioner in that, had the election petition originally filed contained proper prayer it was possible for the petitioner to request for recrimination under Section 175 of the Kerala Municipalities Act (for short, “the Act”) within the time specified therein, that time has expired by the time Ext.P4, order was passed and petitioner thereby stands prejudiced. Learned Senior Advocate has placed reliance on the decisions in Rajendra Singh v. Usha Rani (1984 SC 956 – paragraphs 8 to 10) and Omana v. Sussi Kunjachan (2003 [1] KLT 525 – paragraphs 11 to 16). O.P(C) No.1374 of 2011 -: 3 :- 4. Learned counsel for the first respondent would contend that Sec.170 of the Act permits the Election Tribunal to follow the procedure provided under the Code of Civil Procedure (for short, “the Code”) and hence allowing amendment is within the power of the Election Tribunal. It is contended that a reading of the averments in the election petition as also the reasons for amendment in Ext.P2, application would show that what is requested for is only clarification and not amendment to any material facts. It is contended that in so far as in the election petition it is requested that first respondent be declared elected, it was within the right of petitioner to seek recrimination if she wished so, invoking Sec.175 of the Act and hence it is idle to contend that since the amendment was allowed only on 21.01.2011 petitioner lost the chance of invoking that right. It is also the contention of learned counsel that since the application for amendment was presented on 01.01.2011 much before petitioner filed counter on 15.01.2011, it could not be contended that Ext.P4, order allowing amendment caused prejudice to the petitioner. 5. To understand the rival contentions it is necessary to refer the material allegations in Ext.P1, election petition as it O.P(C) No.1374 of 2011 -: 4 :- originally stood. In paragraph 4 of the election petition it is stated that counting of votes took place on 27.10.2011, as per the result displayed in the display panel it appeared that out of the 960 votes polled, petitioner secured 456 votes while the first respondent secured 454 votes and the second respondent got 50 votes. There was no invalid votes. In paragraph 5, it is stated that “since the 2 nd respondent secured largest number of votes she is declared as the returned candidate under Sec.136 of the Kerala Municipalities Act, 1994. Thus the margin of victory of the candidate with that of the petitioner is only 2 votes”. In paragraph 7 it is stated that there were five bogus votes cast by persons other than the persons mentioned as serial Nos.1 to 5 stated in paragraph 7. In paragraph 8 it is stated that persons referred to as serial Nos.1 to 5 were out of station, by the time one of them arrived to cast his vote it was revealed that his vote was already cast. It is further alleged that as per the information first respondent received, those 5 bogus votes went in favour of petitioner, those 5 votes were cast by impersonation at the instance of the political party referred in paragraph 8 of the election petition and those five votes are to be deleted from the account of petitioner. Then first respondent would be the person O.P(C) No.1374 of 2011 -: 5 :- who secured the largest number of votes if those five votes are deleted from the account of petitioner. It is also stated that since petitioner was elected by a margin of two votes, the five votes referred to in paragraphs 7 and 8 of the election petition casts by impersonation assumed great significance and that the result of election is materially affected. The reception of five votes in favour of petitioner amounts to improper reception of votes and thereby the result of election is materially affected. In the relief portion the following reliefs are prayed for. “(a) To declare that election held on 25.10.2010 in Ward No.42 of Pottayil Constituency of Thrippunithura Municipality is void. (b) To declare that the petitioner is the duly elected candidate in the election held on 25.10.2010 in Ward No.42 of Pottayil Constituency of Thrippunithura Municipality”. Certain other reliefs are also prayed which are not relevant and O.P(C) No.1374 of 2011 -: 6 :- hence not extracted here. 6. In Ext.P2, application for amendment the following amendments are sought. “(a) In para 5 of the election petition in the first sentence the word “2nd respondent” may be deleted and permit to substitute the word “1st respondent”. (b) In the prayer portion of the election petition in the first prayer (a) after the word “election” the word “of the 1st respondent” may be added and after the date “25.10.2010” and before “in Ward 42 Pottayil Constituency of Thrippunithura Municipality” the following may be added as “and the result declared on 27.10.2010” in the interest of justice”. It is the above which is allowed to be incorporated by amendment. 7. I shall refer to the decisions learned Senior Advocate O.P(C) No.1374 of 2011 -: 7 :- has referred. The decision in Rajendra Singh v. Usha Rani concerned the question whether if a copy of the election petition is not given to the respondent that would be a ground to a dismiss the election petition in limine under Section 81 of the Representation of Peoples Act. Question was answered in the affirmative. In Omana v. Sussi Kunjachan question considered was whether to avoid the consequence of non- impleadment of necessary parties it was within the power of the election petitioner to seek an amendment of the election petition to delete some of the prayers. That question was answered in the negative. It was held that non-impleadment of necessary parties with the reliefs prayed for in the election petition is fatal and that would entail a dismissal of the election petition in limine and to avoid that consequence, election petitioner cannot seek amendment of the petition and seek deletion of certain reliefs prayed for. 8. To me, those decisions have no application so far as the present case is concerned. No doubt, though Sec.170 of the Act permits the Election Tribunal to follow the procedure prescribed by the Code so far as it is applicable, it is not as in the case of other proceedings there could be a liberal approach in the O.P(C) No.1374 of 2011 -: 8 :- matter of amendment of the election petition. For, the election law must be construed strictly. 9. Even assuming so, the question arises whether Ext.P4, order can be sustained. It is not as if any sort of amendment is beyond the jurisdiction of the Election Tribunal. No authority is placed before me to show that the Election Tribunal under any circumstance cannot allow amendment. 10. I have referred to the prayer made in Ext.P1, election petition as also the matter sought to be incorporated by Ext.P2, application. In Ext.P1, the entire allegations are to the effect that petitioner was declared elected by a margin of two votes over first respondent, election of petitioner is materially affected by bogus voting by impersonation which according to the first respondent went in favour of petitioner and the election of petitioner is materially affected. True in relief (a) what is required is to declare the that election held on 25.10.102 from Pottayil Constituency of Thrippunithura Municipality is void. But I must bear in mind that there was only one election on 25.10.2010, that concerned the election in which petitioner and respondents contested and where petitioner was declared elected by a margin of two votes. Thus reading the allegations made in O.P(C) No.1374 of 2011 -: 9 :- the election petition it is clear that the prayer made to declare the election held on 25.10.2010 from Ward No.42 of Pottayil Constituency as void is that of petitioner. For, no other person was declared as elected from that Constituency in the election held on 25.10.2011. 11. The other prayer that first respondent sought to be incorporated by amendment is to make a correction in paragraph 5 of the election petition, the statement that “the second respondent” secured largest number of votes is to be corrected as “first respondent” (i.e. petitioner). This also in my view is only a correction of an inadvertent mistake. In paragraph 4 of the election petition it is stated that the second respondent got only 50 votes while petitioner got 456 votes and the first respondent got 454 votes. Therefore it is clear that the statement in paragraph 5 of the election petition that second respondent got the largest number of votes is only an inadvertent mistake. I am not inclined to think that it was beyond the power of the Election Tribunal to allow correction when it was satisfied that there is an inadvertent mistake. 12. I shall refer to the argument advanced by learned Senior Advocate that the amendment prejudiced right of O.P(C) No.1374 of 2011 -: 10 :- petitioner under Sec.175 of the Act. That provision deals with recrimination and states that where in an election petition a declaration that any candidate other than the returned candidate is duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition has been presented calling in question his election. In the present case it is seen from relief (b) in the election petition that a prayer to declare the first respondent as duly elected from Ward No.42 of Pottayil Constituency of Thrippunithura Municipality was made. That prayer should have alerted petitioner if at all she wished to make an application for recrimination as provided under Sec.175 of the Act. If it is not done, it is at her risk. 13. Having gone through Ext.P1, election petition I can only understand the request made in Ext.P2, application as only a request to correct inadvertent mistakes or omission which is not beyond the power of the Election Tribunal while trying an election petition under Sec.169 of the Act. Viewed in that line I am not inclined to think that petitioner is prejudiced by the amendment allowed. As such no interference is required with O.P(C) No.1374 of 2011 -: 11 :- Ext.P4, order. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv