Kerala High Court
Bindu Vijayakumaran Nair vs Bindu Rajappan on 18 July, 2001
ORDER K.A. Mohamed Shafi, J.
1. This CRP is filed by the 1st counter petitioner in O.P.(Election) 3/2000 on the file of the II Addl. Munsiff's Court, Thiruvananthapuram challenging the order dated 18.1.2001 in I.A. No. 10870/2000.
2. The above O.P. is field by the respondent-petitioner challenging the election of the revision petitioner from Ward No. 15 (Kariyam Constituency ) of Sreekariyam Grama Panchayat. the revision petitioner filed the above I.A. to consider the preliminary issue regarding the maintainability of the O.P. alleging that the O.P. is not maintainable since it is filed in violation of the mandatory provisions of S.89(1) & (2) of the Kerala Panchayat Raj Act, 1994 in so far as the copy of the election petition served upon the revision petitioner is not attested as true copy by the respondent in page Nos.1 to 4 of the petition and therefore, the O.P. is liable to be dismissed in limine.
3. The respondent has contended that there is no violation of S.89(1) & (2) of the Kerala Panchayat Raj Act and the O.P. field in strict compliance of the provisions of the Act. The respondent has also contended that it is not necessary to attest every page of the copy of the election petition by the petitioner and it sufficient if the petitioner attested the last page of the petition. The lower court found that the non attestation on all pages in the O.P. by the petitioner therein is not fatal and it is sufficient if the petitur attested at the foot of the petition and therefore, held that the election O.P. is maintainable. Accordingly, the lower court dismissed the I.A. Hence this revision is preferred by the petitioner before this Court.
4. The counsel for the respondent relying upon the decision in Leela v. Pushpam (1996 (2) KLT 350) submitted that the orders passed by the Munsiff's Court while hearing an lection petition under the Panchayat Raj Act are no revisable under S.115 of the CPC since the Munsiff's Court was functioning as persona designata and not a court under the CPC and therefore, the above revision challenging the order passed by the Munsiff's Court in the above election petition is not maintainable before this Court.
5. But in a subsequent decision in Sushama v. Mercy Antony (1999 (3) KLT 818) a Division Bench of this Court has held that are vision under S.115 of the CPC is maintainable against the orders passed by the subordinate Court exercising jurisdiction conferred under the Panchayat Raj Act.
6. The counsel for the respondent submitted that the above decision of the Division Bench of this Court is not applicable to the facts of this case since the question that arose before the Division Bench was whether a revision under S.115 of the CPC is maintainable before this Court against the order passed by the appellate authority viz. the District Court on appals field under S.113 of the Kerala Panchayat Raj Act, 1994 or under S.189 of the Municipalities Act, 1994 and the question involved in t his case is whether this Court has got jurisdiction to entertain a revision under S.115 of the CPC against the order passed by the Munisff's Court considering the election petition under the Kerala Panchayat Raj Act, 1994.
7. The above submission made by the counsel for the respondent is of no force. If the law is applicable to the appellate authority functioning under special statute or under general law, the same law is applicable to the subordinate authority functioning under the same provisions of law. Therefore it is clear that the above order passed by the Munsiff's Court regarding the maintainability of the election petition is revisable by this Court under S.115 of the CPC. Therefore, the objection raised by the respondent against the maintainability of the revision petition is overruled.
8. The contention of the revision petitioner is that the above election petition is not sustainable in view of the violation of the mandatory provision of S.89(1) of the Panchayat Raj Act, 1994 and therefore the same is liable to be dismissed in limine. S./89 of the Panchayat Raj Act deals with the filing of election petitions. S.89(1) stipulates that the election petition should be presented before the competent court within 30 days of the election. S.89(2) mandates that every election petition should be accompanied by as many copies there of as there are respondent mentioned in the petition and every such copy should be attested by the petitioner under his signature to be the true copy of the petition.
9. The revision petitioner/first respondent in the election petition has contended that the copy of the election petition received by him didnot contain the verification and signature of the petitioner in the election petition in all the pages. Therefore according to him, the mandatory provision of S.89(2) of the Panchayat Raj Act is violated. He submits that even if there is no verification in all the pages of the copy of the election petition, there should be atleast signature of the election petitioner in all the page of the election petition. In support of his contention, the counsel for the revision petitioner relied upon several rulings.
11. In the decision reported in A. Mohammed v.Nalakath Soopy (1997 (1) KLT 697), a single Judge of this Court observed as follows:
"It is no doubt true that the affixing of the signature in original in the copy at the place where the deponent has signed and at the place where the petitioner has signed in the original and at the place where the petitioner has verified the original may not be necessary But in the absence of those signatures at the place where they are now place, it could not be said that the copies would correspond to the original or that the copies could be considered as true copies of the original. In such a situation, in my view, affixing of at least another signature at the bottom of the concerned pages even if there if no attestation as the true copy by the petitioner was needed at least to hold that there was substantial compliance with the requirement of attestation as true copies within the meaning of S.81(3) of the Act."
12. In the decision reported in Narendra Bhikahi Darade v.Kalyanrao Jaywantrao Patil & Ors. (AIR 2000 Bom. 362), single Judge of the Bombay High Court has observed as follows:
"In the copy of the Election Petition absence of verification of concise statement and affidavit can be treated as not only a defect under S.83(2), but a lot a non-compliance of the S.81(3) of the Act as the true copy of the Election Petition cannot be said to be served on the respondent."
13. The counsel for the respondent submitted that S.89(2) of the Panchayat Raj Act mandates only attestation of copy of the election petition by the petitioner and it doe snot stipulate that every page of the copy should be attested and attestation of the copy of the election petition at the foot of the petition is sufficient compliance of S.89(2) of the Panchayat Raj Act. In support of his contention, the counsel for the respondent relied upon the decision reported in F.A. Sapa v. Singora (1991 (3) SCC 375), wherein a three Judges bench of Supreme Court has observed as follows:
"On a plain reading of S.81(3) it becomes clear that the requirement of that provision is: (i) the election petition should be accompanied by as many copies thereof as there are respondent mentioned in the petition and (ii) every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. There is no dispute in regard to the compliance of the first part. So far as the second part is concerned, all that the section requires is that the copy should be attested by the petitioner to be a true coy of the petition under his own signature. The requirement of this part of the provision is met by each copy having been signed at the foot thereof by the concerned petitioner. What is essential is that the petitioner must take the responsibility of the copy being a true copy of the Original Petition and sign in token thereof. No particular form of attestation is prescribed; all that the sub-section enjoins is that the petitioner must attest the copy under his own signature to be a true copy of the petition. BY clarifying the same as true copy and by putting his signature at the foot thereof, the petitioner of each Election Petition had clearly complied with the letter and spirit of S.81 (3) of the R.P.Act."
14. In the decision reported in Advocate Thomas v. Varghese Paul (1996 (2) KLJ 283), a Single Judge of this Court following the above dictum, laid down by the Supreme Court, observed as follows:-
"Attestation made at the foot of the substantial compliance of the provisions of S.89(2) of the Panchayat Raj Act."
15. It is not in dispute that S.81 (3) of the Representation of People's Act under which the aforementioned case arose before the Supreme Court and the provisions of S.89(2) of the Kerala Panchayat Raj Act, are identical. Therefore, the counsel for the respondent submitted that the decision reported in 1996(2) KLJ 283 relying upon the above judgment of the Supreme Court reported in 1991 (3) SCC 375 laying down that attestation of the election petition at the foot of the copy of the petition is proper compliance of S.89(2) of the Kerala Panchayat Raj Act should be accepted, in preference to the judgment of another Single Judge of this Court reported in 1997 (1) KLT 697, relied upon by the counsel for the petitioner.
16. The counsel for the revision petitioner submitted that in the decision reported in 1991(3) SCC 375, the question came up before the Supreme Court was regarding attestation of the copy of the election petition served upon the respondents as true copy of the original petition and not the signature of the election petitioner to be put in all pages of the copies. It is clear from the observations made by the Supreme Court in the judgment that the Supreme Court has considered the requirement of attestation as well as the signature in the copy of the election petition while laying down the law as aforesaid. Therefore this contention raised by the revision petitioner that the Supreme Court has only considered attestation and did not consider the requirements of signature in every page of the copy of the petition is not sustainable.
17. It is submitted by the counsel for the petitioner that in view of the settled position of law that when there is conflict of decision between two benches of co-ordinate jurisdiction, the decisions rendered by the Court later in point of time should be followed the judgment reported in 1997 (1) KLT 697 relied upon by him should be followed. It is seen that the judgment reported in 1997 (1) KLT 697 is pronounced by the single Judge of the Court on 22.8.1996 and the decision reported in 1996 (2) KLJ 283 is pronounced by another single Judge of this Court on 16.8.1996. Therefore the judgment reported in 1997 (1) KLT 697 is later in point of time. But it has to be noted that in the decision reported in 1997 (1) KLT 697 the judgment rendered by the three Judges Bench of the Supreme Court reported in 1991 (3) SCC 375 is not adverted to or considered by the Single Judge. Probably that decision might not have been brought to the notice of the Single Judge while considering the case. But in the decision reported in 1996 (2) KLJ 283, the learned Single Judge has extracted the observations made by the Supreme Court in the decision reported in 1991 (3) SCC 375 and followed the dictum laid down by the Supreme Court in that judgment. Therefore I am inclined to follow the judgment of the Single Judge reported in 1996 (2) KLJ 283, following the decision of the Supreme Court reported in 1991 (3) SCC 375 in preference to the judgment of this Court reported in 1997 (1) KLT 697 and hold that attestation at he foot of the copy of the petition is sufficient compliance of S.89(2) of the Panchayat Raj Act and due to the mere fact that the signature of he election petitioner is not affixed in some of the pages of the copy served upon the respondent, it cannot be contended that the mandatory provisions of S.89(2) of the Panchayat Raj Act is not complied with and therefore the Election Petition should be dismissed in limine.
18. It is clear from my foregoing discussions that the contention raised by the revision petitioner that the respondent should attest the copy of the election petition served upon her as true coy on all the pages in compliance of S.89(2) of the Kerala Panchayat Raj Act and non-compliance of that mandatory provision is fatal and as such the election petition is not maintainable and the same should be dismissed in limine is not sustainable. It is also clear that the failure to attest the copy of the election petition as true copy on all pages of the copy of the election. Therefore, the lower court is perfectly justified in negativing the contentions raised by the revision petitioner that the election petition is liable to be dismissed in limine for violation of the mandatory provisions of S.89(2) of the Kerala Panchayat Raj Act.
Hence I find the above revision petition is devoid of any merits and the same is dismissed.