IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WP(C).No. 27752 of 2008(D) ---------------------------------------- PETITIONER(S): ------------------------- ADV.M.PHILIP KOSHY, S/O. M.P.KOSHY, AGED 52 YEARS, MODIYIL USHUS, MALLAPPALLY WEST, PATHANAMTHITTA DISTRICT. BY ADVS. MR. K.SHAJ, MR.SAJJU.S. RESPONDENT(S): --------------------------- 1. PROF.SAJI CHACKO, S/O. K.K.CHACKO, AGED 48 YEARS, KUZHIVELIL HOUSE, THURITHICADU MURI,KALLOOPPARA VILLAGE, MALLAPPALLY TALUK, PATHANAMTHITTA DISTRICT. 2. MADHU PARUMALA, S/O. GOPALA PANICKER, AGED 43 YEARS, PONVALIL HOUSE, PARUMALA P.O., PATHANAMTHITTA DISTRICT. 3. A.K.SAJEEV, S/O. KUNJUKUNJU, AGED 35 YEARS, MAMANDATHU HOUSE, ANJILITHANAM P.O., THIRUVALLA. R1 BY ADV. MR.JACOB P.ALEX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009 ALONG WITH CRP.NO.705 OF 2008,THE COURT ON 17/08/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.27752/2008 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ELECTION PETITION IN OP(ELECTION)49/05 ON THE FILE OF THE DISTRICT COURT, PATHANAMTHITTA. P2: COPY OF PRELIMINARY OBJECTION FILED BY THE PETITIONER HEREIN IN O.P.(ELECTION) 49/05 BEFORE THE DISTRICT COURT, PATHANAMTHITTA. P3: COPY OF I.A.12/07 FOR AMENDMENT OF ELECTION PETITION FILED BY THE PETITIONER IN OP(ELECTION)49/05 BEFORE THE DISTRICT COURT, PATHANAMTHITTA. P4: COPY OF OBJECTION FILED BY THE PETITIONER HEREIN TO THE AMENDMENT PETITION FILED BY THE FIRST RESPONDENT HEREIN. P5: COPY OF THE ORDER DTD. 04/07/08 IN I.A.12/2007 IN OP(ELECTION) 49/05 OF THE DISTRICT COURT, PATHANAMTHITTA. P6: COPY OF THE ORDER DTD. 04/07/08 DISMISSING THE PRELIMINARY OBJECTION OF MAINTAINABILITY FILED BY THE PETITIONER HEREIN IN OP(ELECTION) 49/05 OF THE DISTRICT COURT, PATHANAMTHITTA. RESPONDENT'S ANNEXURES: ANNEXURE 1: COPY OF THE I.A.87/08 IN O.P.ELECTION 49/05 DISTRICT COURT, PATHANAMTHITTA DTD. 18/01/08. ANNEXURE II: COPY OF THE I.A.917/08 IN O.P.ELECTION 49/05 DISTRICT COURT, PATHANAMTHITTA DTD. 2/08/2008. /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.27752 of 2008 and C.R.P.No. 705 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 17th August, 2009 JUDGMENT Both the Writ Petition and the revision petition emerge from a common order dated 4th July, 2008 passed by the learned District Judge, Pathanamthitta in an election petition, O.P.(Election) No.49 of 2005, allowing an application for amendment moved by the petitioner seeking certain amendments to the petition and of negativing the challenges raised by the returned candidate impeaching the maintainability of the election petition. The returned candidate, the first respondent in the election petition whose election was challenged, has filed the Writ Petition and also the revision. 2. Parties are hereinafter referred to as ranked in the election petition, O.P.(Election) No.49 of 2005 on the file of the court below for the sake of convenience. The first respondent in the election petition was the returned candidate from No.2 constituency, Mallappally Division of Pathanamthitta District Panchayat, the election of which was held on 24.9.2005. Petitioner in the election petition and two others, the 2nd and 3rd respondent in that petition, were the other contesting candidates in the election from that constituency. Having W.P.C.27752/08 & CRP 705/08 - 2 - secured a majority of 71 votes more than the petitioner, the first respondent was declared elected. The election of the first respondent was impeached by the petition in the election petition on various grounds like irregularities and illegalities in the distribution, reception and counting of postal ballot votes, corrupt practices, double voting, impersonation, mistake in counting, nonconsideration of recount application etc. The first respondent, on appearance, challenged the maintainability of the petition on various grounds contending that without going into the trial the petition is liable to be dismissed in limine as not maintainable. Among the challenges raised questioning the maintainability was the absence of proper verification of the annexures filed with the election petition and also that material facts constituting corrupt practices imputed are not spelt out in the petition and so much so the petition was not entertainable. Petitioner moved an application for amendment to furnish some particulars more in the election petition and also sought for permission to rectify the defect in the verification of the annexures produced with the petition. The amendment application was allowed and permission accorded to carry out proper verification of the annexures by the learned District Judge under the orders impugned after hearing the counsel on both sides W.P.C.27752/08 & CRP 705/08 - 3 - and examining such question with reference to the judicial pronouncements applicable. Challenge against the maintainability canvassed by the first respondent was also found against him under the impugned order. Propriety and correctness of the order so passed is challenged in the Writ Petition and also revision, the former ordering the amendment of the petition and the latter against the order passed holding the election petition is maintainable. 3. Having regard to the controversy presented for determination by this court and taking note the limited scope within which it has to be considered, a detailed narration of the allegations raised by the petitioner impeaching the election of the returned candidate, first respondent, or the objections raised by that respondent to resist the election, in the facts involved and the submissions made by the counsel and also with reference to the order passed by the learned District Judge impugned in the Writ Petition and also revision, I find is not necessary for disposal of these petitions. Suffice to state to substantiate the allegations raised in the election petition, the petitioner produced some annexures as A to H. Two paper books, a copy of form No.25, a list of voters who have exercised double voting, another list of voters whose votes are W.P.C.27752/08 & CRP 705/08 - 4 - alleged to have been cast by impersonation, a list of wards in which mistakes had crept in in counting, copy of application submitted for recounting and order of returning officer on that application form part of the annexures referred to above. These annexures were not properly attested and verified as authenticated true copies and there was no supporting affidavit when such annexures was produced as required under Section 62 were raised by the returned candidate as affecting the maintainability of the petition. The allegation stated in the pleadings do not make out a case of corrupt practices imputed in the election and as such the petition was not maintainable was another challenge raised to question its maintainability. Petitioner moved an amendment application to furnish some more particulars with reference to the allegations raised in the petitioner which was seriously objected to by the returned candidate. As indicated earlier, reference in particular to the amendment sought for nor the objections raised thereto is not essential, but it has to be stated that whereas, the petitioner submits that the proposed amendments constitute only furnishing of material particulars the first respondent has a case that such amendments would constitute material facts, that too in respect of the corrupt practices imputed and as such it W.P.C.27752/08 & CRP 705/08 - 5 - could not be brought in by way of amendment. 4. The learned District Judge, after hearing the counsel on both sides and meticulously considering the challenges raised against the maintainability of the petition and also the proposed amendment moved by the petitioner, came to the conclusion that the petition is maintainable and the amendment sought for related to furnishing of material particulars and that has to be allowed. Defects relating to annexures were found curable, and it was also allowed to be rectified. Correctness of the common order passed thereof is impeached in these petitions by the first respondent, the returned candidate. 5. I heard the learned counsel on both sides at length and in the course of such hearing, the legal principles as enunciated by this court and also the apex court on the matter in issue were presented to sustain the case canvassed by the respective sides. However, after going through the order of the learned District Judge impugned in the petitions, wherein almost all the legal principles having a bearing on the issues involved are seen meticulously considered, I find no recapitulation of the legal principles is warranted for disposing these petitions. The learned District Judge has found merit in the challenge of the first respondent/returned candidate that there was no proper W.P.C.27752/08 & CRP 705/08 - 6 - verification of the annexures produced to the election petition, but in the light of the judicial pronouncements applicable, held that such a defect could be considered only as a curable defect not affecting the maintainability of the election petition. The learned District Judge has also taken note that improper verification in the petition and annexures are material only when it affects the root of the case and the opposite party is mislead by such improper documentation. That being not the situation in the present case where improper verification related to some annexures produced with the petition, the learned District Judge found that that defect was not fatal and it is curable and accordingly permission was accorded to the petitioner to cure such defects. I do not find any impropriety or illegality in the view taken by the learned District Judge which is fully supported by the judicial pronouncements of the apex court. So much so, the order passed by the learned District Judge that the defects relating to the improper verification with respect to the annexures produced with the petition are curable overruling the objections raised by the first respondent on that score, as held in the impugned order, is only to be confirmed, and I do so. So much so, the revision filed by the first respondent must fail. W.P.C.27752/08 & CRP 705/08 - 7 - 6. So far as the amendment sought for by the petitioner in I.A.No.12 of 2007, the learned District Judge, after examining the materials and hearing the counsel on both sides, came to the view that such amendments at the most would constitute only furnishing of material particulars and not material facts relating to corrupt practices imputed as contended by the first respondent. In taking that view, which too was formed after taking note of the legal principles enunciated by this court and also the apex court, the application for amendment was allowed. After hearing the counsel on both sides at length, I find that the question whether the particulars brought in by way of amendment to the election petition constituted material facts or amounted to supply of material particulars relating to the election constituting the corrupt practices has to be left open to be examined after recording of the evidence and not to be prejudged at this stage. The learned District Judge, after going through the allegations raised in the election petition, has found that the pleadings are not vague with reference to the specific imputations made to challenge the election and so far as the defects pointed out to resist the petition they are curable and necessary steps taken by the petitioner by way of amendment under I.A.No.12 of 2007, in the given facts of the W.P.C.27752/08 & CRP 705/08 - 8 - case, has to be allowed. In forming that conclusion, the learned District Judge has also given weighty reasons, which I find in the light of the judicial pronouncements applicable are found to be proper and correct. It is also noted that the amendment sought under I.A.No.12 of 2007 has been permitted by the learned District Judge under the impugned order without prejudice to the right of the respondent to contest the petition on merits on triable issues. So much so, what has been ordered by the District Judge in allowing the amendment application I.A.No.12 of 2007 while according permission to the petitioner to cure the defects relating to improper verification accepting the case of the first respondent/returned candidate that in respect of the annexures produced there was such improper verification, but all the same it is curable and rectifiable, is that only the preliminary objections raised by the first respondent on the maintainability of the petition are negatived, without prejudice to his right to contest the petition on merits on triable issues. So much so, whatever contentions available to the first respondent as to the maintainability of the petition for absence of material facts constituting the corrupt practices imputed or on such other grounds are open and left untouched, on the contrary, as expressed by the W.P.C.27752/08 & CRP 705/08 - 9 - learned District Judge remain to be thrashed out to be resolved in trial of the petition. No prejudice whatsoever has been caused to the first respondent, the returned candidate by allowing the amendment. The learned District Judge has expressed in unequivocal terms that only the preliminary objections challenging the maintainability of the petition are negatived and that is done without prejudice to his right to contest the petition on merits on triable issues. I find that the challenges raised against the amendment petition I.A.No.12 of 2007 in such circumstances invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India lacks merit as the order passed by the learned District Judge appears to be correct, sound, and in accordance with legal principles. 7. I make it clear that so far as the improper verification of the annexures A to H, nonsupply of copies of affidavit etc. the challenges raised by the first respondent which have been negatived by the learned District Judge holding it as curable will no longer survive and the decision of the learned District Judge thereof shall be final and conclusive. However as to whether material facts have been newly introduced to sustain the ground of corrupt practices imputed by way of amendment, if that be so, can be canvassed with reference to the W.P.C.27752/08 & CRP 705/08 - 10 - pleadings in the trial of the election petition and no further observation thereof is in fact warranted from this court as the learned District Judge has taken care to hold that the amendment has been allowed without prejudice to the right of the first respondent to contest on merits on all triable issues raised in the petition. 8. Having regard to the fact that the challenge to an election held on 24.9.2005 and the results declared on 27.9.2005 is still pending for adjudication in view of the preliminary objections raised over the maintainability of the petition and the challenges against the orders passed thereof by the court below canvassed before this court by the revision and the Writ Petition, I find an expeditious trial and disposal is essential to advance the ends of justice. The mandate under Section 93(5) of the Kerala Panchayat Raj Act, 1994 commands the court before which an election petition is presented to try and dispose it expeditiously as possible fixing an outer limit of six months from the date of presentation of the petition. Such being the command of the statute and more so, in view of the long delay after the presentation of the petition and the trial, I direct the learned District Judge to give the case top priority in hearing and dispose it as expeditiously as possible, at any rate, within four months from the W.P.C.27752/08 & CRP 705/08 - 11 - date of receipt of a copy of this judgment. 9. The revision petition is dismissed and the Writ Petition is disposed subject to the observations made above directing both sides to suffer their costs. Send a copy of this judgment forthwith to the District Court, Pathanamthitta and handover copy of the judgment to the counsel on both sides on usual terms. srd S.S. SATHEESACHANDRAN, JUDGE