IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 CRP.No. 381 of 2011() --------------------- OP.10/2010 of MUNSIFF COURT,MUVATTUPUZHA .................... REVN. PETITIONER(S): IST RESPONDENT ----------------------------------- REJI SANTO, W/O.SANTO, AGED 37, PALAYIKUDIYIL HOUSE, AYAVANA P.O., MUVATTUPUZHA. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): PETITIONER ------------------------- 1. NANCY JOHN, AGED 50, W/O.JOHN, ARACKAL HOUSE, AYAVANA P.O., ENANELLOOR, MUVATTUPUZHA PIN - 686 676. 2. ALEKUTTY VARGHESE, AGED 65, W/O.VARGHESE, NELLIKKUNNEL HOUSE, AYAVANA-ENANELLOOR, MUVATTUPUZHA PIN - 686 676. R1 BY ADVS. SRI.P.J.MATHEW SRI.THOMAS JOHN AMBOOKEN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: amk. THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.381 of 2011 --------------------------------------- Dated this 11th day of October, 2011 ORDER Respondents in O.P(Ele).No.10 of 2010 of the Court of learned Munsiff, Muvattupuzha is the petitioner, challenging the order dated 10.08.2011 overruling the preliminary objection raised by the petitioner regarding maintainability of the election petition. In the election to the local body, petitioner defeated the first respondent. First respondent challenged election of petitioner on various grounds referred in paragraphs 6 to 17 of the election petition. Petitioner filed a counter contending inter alia, that though first respondent banks upon corrupt practice at the election as understood in Sec.120 of the Kerala Panchayat Raj Act, 1974 (for short, "the Act”), there is no affidavit accompanying the petition in support of the corrupt practice as required under Sec.91 of the Act, there is no material particulars pleaded in the election petition regarding the said corrupt practice and hence the petitioner is liable to be dismissed in limine. The objections were overruled by the learned Munsiff by the impugned order. C.R.P.No.381 of 2011 -: 2 :- 2. Learned counsel for petitioner has referred me to the various allegations in the election petition and in particular, paragraphs 6 and 13. Paragraph 4 of the election petition deals with improper rejection of certain postal ballots for want of the signature of the voter on the large cover which ought to have been counted in favour of the first respondent. Paragraph 6 states that petitioner has won the election due to malpractices committed in the counting of votes, improper reception of votes in favour of the petitioner and improper rejection of votes against the first respondent. Paragraph 7 states about the monogram affixed by the Returning Officer on the back of the ballot paper. Paragraph 8 deals with the defect in printing first respondent's symbol “hand” which appeared like a “shuttle”, which is the symbol of the second respondent. Paragraph 9 of the election petition deals with several votes of the petitioner being invalid but, treated as valid notwithstanding the objection raised by the first respondent at the time of counting. Paragraph 10 states that the counting agent of the first respondent was not given opportunity to inspect the ballot paper. Paragraph 11 states that the Returning Officer has not stated the reason for rejecting the ballot paper which should have been counted in favour of the first respondent. The crucial paragraph petitioner relies on, is paragraph 13 where it is stated, C.R.P.No.381 of 2011 -: 3 :- “On getting the application for recounting, the Returning Officer went to the chamber of the R.D.O. In the chamber of the R.D.O, Sri.Babu Paul M.L.A (LDF) who belongs to Communist Party of India (C.P.I) was present. The counting staffs were mainly from Revenue Department. The Revenue Department is under the Minister from C.P.I. The M.L.A insisted the R.D.O to reject the application for recounting. Returned candidate also belongs to CPI.” In paragraph 6, it is stated, “The first respondent won the election because of the malpractices committed in the counting of votes. There was improper reception of votes in favour of the first respondent and improper rejection of the petitioner.” According to the learned counsel for petitioner, paragraph 13 read along with paragraph 6 of the election petition would show that according to the first respondent the corrupt practice indulged by the Returning Officer or other persons referred to in paragraph 13 was with the consent of petitioner. Learned counsel has brought to my attention Sec.120(8) of the Act which refers to the obtaining or procuring or abetting or attempting to obtain or procure by a candidate or his agent or, by any other person with the consent of a candidate or his election agent, any assistance (other than the giving of votes) for the furtherance of C.R.P.No.381 of 2011 -: 4 :- the prospects of that candidate's election, from any person in the service of a Panchayat or of Government and belonging to any of the following classes (referred to in clauses (a) to (e) of the subsection). 3. Learned counsel for first respondent in response contended that bribery must be of the category mentioned in Sec.120(1) of the Act and to come under sub sec.8 of Sec.120, the obtaining or procuring etc of the service of the persons referred to therein must either be by the candidate or his agent or “by the consent of the candidate or his agent”. Learned counsel has placed reliance on the decision in Swayamprabha Vs. Chandramathy (2007(4) KLT 916) and in particular the observations in paragraph 3 to contend that in the present case there is no allegation that (alleged) corrupt practice was either by the candidate or his election agent or with their consent and as such, allegations in the election petition do not come within corrupt practice as provided under sub sec.8 of Sec.120 of the Act so that an affidavit was required to accompany the election petition as provided under Sec.91 of the Act. 4. I referred to sub sec.8 of Sec.120 of the Act. Presently there is no allegation that (alleged) corrupt practice was indulged in by petitioner or her election agent. The attempt now is to bring the case within the ambit of “with the consent of C.R.P.No.381 of 2011 -: 5 :- the candidate or his election agent”. From paragraph 13 of the election petition there could not be a positive finding at this stage that whatever is said to have been done by the persons referred to therein was with the consent of the petitioner or her election agent. As such, at this stage it is not possible to say that there is non compliance of Sec.91 of the Act and hence the election petition is liable to be dismissed in limine. But I make it clear that it is open to the petitioner to pursue the contention that she has raised as above stated in the trial of the election petition. 5. So far as the contention that there are no material particulars pleaded in the election petition regarding the (alleged) malpractices is concerned, I have referred to relevant paragraphs in the election petition which according to the first respondent is sufficient to sustain the election petition. Having gone through the election petition I am not inclined to say, at this stage that material particulars are lacking. Subject to the observations made above, this civil revision is disposed of directing the learned Munsiff to dispose of the election petition on its merit. (THOMAS P JOSEPH, JUDGE) Sbna/-