ADV.M.PHILIP KOSHY v. PROF.SAJI CHACKO

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 PRELIMINARYOBJECTION 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 andC.R.P.No. 705 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 17th August, 2009JUDGMENTBoth the Writ Petition and the revision petition emerge from acommon order dated 4th July, 2008 passed by the learned DistrictJudge, Pathanamthitta in an election petition, O.P.(Election) No.49 of2005, allowing an application for amendment moved by the petitionerseeking certain amendments to the petition and of negativing thechallenges raised by the returned candidate impeaching themaintainability of the election petition. The returned candidate, thefirst respondent in the election petition whose election waschallenged, has filed the Writ Petition and also the revision. 2. Parties are hereinafter referred to as ranked in the electionpetition, O.P.(Election) No.49 of 2005 on the file of the court belowfor the sake of convenience. The first respondent in the electionpetition was the returned candidate from No.2 constituency,Mallappally Division of Pathanamthitta District Panchayat, the electionof which was held on 24.9.2005. Petitioner in the election petition andtwo others, the 2nd and 3rd respondent in that petition, were the othercontesting 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 firstrespondent was declared elected. The election of the first respondentwas impeached by the petition in the election petition on variousgrounds like irregularities and illegalities in the distribution, receptionand counting of postal ballot votes, corrupt practices, double voting,impersonation, mistake in counting, nonconsideration of recountapplication etc. The first respondent, on appearance, challenged themaintainability of the petition on various grounds contending thatwithout going into the trial the petition is liable to be dismissed inlimine as not maintainable. Among the challenges raised questioningthe maintainability was the absence of proper verification of theannexures filed with the election petition and also that material factsconstituting corrupt practices imputed are not spelt out in the petitionand so much so the petition was not entertainable. Petitioner movedan application for amendment to furnish some particulars more in theelection petition and also sought for permission to rectify the defect inthe verification of the annexures produced with the petition. Theamendment application was allowed and permission accorded to carryout proper verification of the annexures by the learned District Judgeunder 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 judicialpronouncements applicable. Challenge against the maintainabilitycanvassed by the first respondent was also found against him underthe impugned order. Propriety and correctness of the order so passedis challenged in the Writ Petition and also revision, the formerordering the amendment of the petition and the latter against theorder passed holding the election petition is maintainable.3. Having regard to the controversy presented fordetermination by this court and taking note the limited scope withinwhich it has to be considered, a detailed narration of the allegationsraised by the petitioner impeaching the election of the returnedcandidate, first respondent, or the objections raised by thatrespondent to resist the election, in the facts involved and thesubmissions made by the counsel and also with reference to the orderpassed by the learned District Judge impugned in the Writ Petitionand also revision, I find is not necessary for disposal of thesepetitions. Suffice to state to substantiate the allegations raised in theelection petition, the petitioner produced some annexures as A to H.Two paper books, a copy of form No.25, a list of voters who haveexercised 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 whichmistakes had crept in in counting, copy of application submitted forrecounting and order of returning officer on that application form partof the annexures referred to above. These annexures were notproperly attested and verified as authenticated true copies and therewas no supporting affidavit when such annexures was produced asrequired under Section 62 were raised by the returned candidate asaffecting the maintainability of the petition. The allegation stated inthe pleadings do not make out a case of corrupt practices imputed inthe election and as such the petition was not maintainable wasanother challenge raised to question its maintainability. Petitionermoved an amendment application to furnish some more particularswith reference to the allegations raised in the petitioner which wasseriously objected to by the returned candidate. As indicated earlier,reference in particular to the amendment sought for nor theobjections raised thereto is not essential, but it has to be stated thatwhereas, the petitioner submits that the proposed amendmentsconstitute only furnishing of material particulars the first respondenthas 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 bothsides and meticulously considering the challenges raised against themaintainability of the petition and also the proposed amendmentmoved by the petitioner, came to the conclusion that the petition ismaintainable and the amendment sought for related to furnishing ofmaterial particulars and that has to be allowed. Defects relating toannexures were found curable, and it was also allowed to be rectified.Correctness of the common order passed thereof is impeached inthese petitions by the first respondent, the returned candidate.5. I heard the learned counsel on both sides at length and inthe course of such hearing, the legal principles as enunciated by thiscourt and also the apex court on the matter in issue were presentedto sustain the case canvassed by the respective sides. However, aftergoing through the order of the learned District Judge impugned in thepetitions, wherein almost all the legal principles having a bearing onthe issues involved are seen meticulously considered, I find norecapitulation of the legal principles is warranted for disposing thesepetitions. The learned District Judge has found merit in the challengeof 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 inthe light of the judicial pronouncements applicable, held that such adefect could be considered only as a curable defect not affecting themaintainability of the election petition. The learned District Judge hasalso taken note that improper verification in the petition andannexures are material only when it affects the root of the case andthe opposite party is mislead by such improper documentation. Thatbeing not the situation in the present case where improperverification related to some annexures produced with the petition, thelearned District Judge found that that defect was not fatal and it iscurable and accordingly permission was accorded to the petitioner tocure such defects. I do not find any impropriety or illegality in theview taken by the learned District Judge which is fully supported bythe judicial pronouncements of the apex court. So much so, the orderpassed by the learned District Judge that the defects relating to theimproper verification with respect to the annexures produced with thepetition are curable overruling the objections raised by the firstrespondent on that score, as held in the impugned order, is only to beconfirmed, and I do so. So much so, the revision filed by the firstrespondent must fail. W.P.C.27752/08 & CRP 705/08 - 7 -6. So far as the amendment sought for by the petitioner inI.A.No.12 of 2007, the learned District Judge, after examining thematerials and hearing the counsel on both sides, came to the viewthat such amendments at the most would constitute only furnishing ofmaterial particulars and not material facts relating to corruptpractices imputed as contended by the first respondent. In taking thatview, which too was formed after taking note of the legal principlesenunciated by this court and also the apex court, the application foramendment was allowed. After hearing the counsel on both sides atlength, I find that the question whether the particulars brought in byway of amendment to the election petition constituted material factsor amounted to supply of material particulars relating to the electionconstituting the corrupt practices has to be left open to be examinedafter recording of the evidence and not to be prejudged at this stage.The learned District Judge, after going through the allegations raisedin the election petition, has found that the pleadings are not vaguewith reference to the specific imputations made to challenge theelection and so far as the defects pointed out to resist the petitionthey are curable and necessary steps taken by the petitioner by wayof 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 learnedDistrict Judge has also given weighty reasons, which I find in the lightof the judicial pronouncements applicable are found to be proper andcorrect. It is also noted that the amendment sought under I.A.No.12of 2007 has been permitted by the learned District Judge under theimpugned order without prejudice to the right of the respondent tocontest the petition on merits on triable issues. So much so, what hasbeen ordered by the District Judge in allowing the amendmentapplication I.A.No.12 of 2007 while according permission to thepetitioner to cure the defects relating to improper verificationaccepting the case of the first respondent/returned candidate that inrespect of the annexures produced there was such improperverification, but all the same it is curable and rectifiable, is that onlythe preliminary objections raised by the first respondent on themaintainability of the petition are negatived, without prejudice to hisright to contest the petition on merits on triable issues. So much so,whatever contentions available to the first respondent as to themaintainability of the petition for absence of material factsconstituting the corrupt practices imputed or on such other groundsare 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 intrial of the petition. No prejudice whatsoever has been caused to thefirst respondent, the returned candidate by allowing the amendment.The learned District Judge has expressed in unequivocal terms thatonly the preliminary objections challenging the maintainability of thepetition are negatived and that is done without prejudice to his rightto contest the petition on merits on triable issues. I find that thechallenges raised against the amendment petition I.A.No.12 of 2007in such circumstances invoking the supervisory jurisdiction vestedwith this court under Article 227 of the Constitution of India lacksmerit as the order passed by the learned District Judge appears to becorrect, sound, and in accordance with legal principles.7. I make it clear that so far as the improper verification of theannexures A to H, nonsupply of copies of affidavit etc. the challengesraised by the first respondent which have been negatived by thelearned District Judge holding it as curable will no longer survive andthe decision of the learned District Judge thereof shall be final andconclusive. However as to whether material facts have been newlyintroduced to sustain the ground of corrupt practices imputed by wayof 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 furtherobservation thereof is in fact warranted from this court as the learnedDistrict Judge has taken care to hold that the amendment has beenallowed without prejudice to the right of the first respondent tocontest on merits on all triable issues raised in the petition.8. Having regard to the fact that the challenge to an electionheld on 24.9.2005 and the results declared on 27.9.2005 is stillpending for adjudication in view of the preliminary objections raisedover the maintainability of the petition and the challenges against theorders passed thereof by the court below canvassed before this courtby the revision and the Writ Petition, I find an expeditious trial anddisposal is essential to advance the ends of justice. The mandateunder Section 93(5) of the Kerala Panchayat Raj Act, 1994commands the court before which an election petition is presented totry and dispose it expeditiously as possible fixing an outer limit of sixmonths from the date of presentation of the petition. Such being thecommand of the statute and more so, in view of the long delay afterthe presentation of the petition and the trial, I direct the learnedDistrict Judge to give the case top priority in hearing and dispose it asexpeditiously 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 isdisposed subject to the observations made above directing both sidesto suffer their costs. Send a copy of this judgment forthwith to theDistrict Court, Pathanamthitta and handover copy of the judgment tothe counsel on both sides on usual terms.srdS.S. SATHEESACHANDRAN, JUDGE