DEVAKI Vs. KAVERI AMMA

JUDGEMENT

(1.) THE petitioner was declared as a Member of Ward I of paivalika Grama Panchayat in Kasargode Panchayat in the election conducted on 23. 9. 1995. THE 1 st respondent in the O. P. filed a petition under Sec. 88 (a)of the Kerala Panchayath Raj Act (for short 'the Act') before the Principal munsiff, Kasargode on 29. 9. 1995 challenging the election of the petitioner on the ground that the counting of votes was not properly done. THE said O. P. filed by the 1 st respondent was numbered as O. P. No. 6 of 1995 and notice was sent to the petitioner on the above said petition along with the copy of the election petition.

(2.) THE petitioner on receipt of the notice in the election petition and the copy of the election petition filed an objection before the Principal Munsiff raising 3 points, namely: (1) that the Govt. have not notified the appropriate courts for dealing election cases after consulting the High Court as contemplated under Sec. 89 (c) of the Act, and so the principal Munsiff, Kasaragode, has no jurisdiction to deal with the election petition filed by the 1 st respondent; (2) that the election petition was not properly filed in terms of sub-sec. (2) of Sec. 89 of the Act as the 1st respondent did not attest the copies of the election petition under his own signature to be true copies of the petition; (3) that the election petition was not signed by the petitioner in O. P. No. 6 of 1995 in the manner laid down in the Civil procedure Code and the petitioner did not sign the annexure or the schedule and verify the same in the same manner as in the petition. THE Principal Munsiff, on consideration of the above three points dismissed the petition by his order under Ext. P3. This O. P. is in challenge of the said order.

(3.) NOW let me consider the 2nd contention of the petitioner, namely, that the 1 st respondent did not attest the election petition under his own signature to be a true copy of the petition. I feel that there is some force in the contention of the petitioner. The Supreme Court in sharif-ud-Din v. Abdul Gani Lone' (MR 1980 SC 303) while interpreting Sec. 89 (3)of the Jammu & Kashmir Representation of the People Act (Act 4 of 1957), which provision is pari materia with the present provision under Sec. 89 (2) of the Act, held that the requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non-compliance with that requirement should result in the dismissal to the petition. The contention that the provision is only procedural in character was negatived by the Supreme Court in the above said judgment and held that the object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition appear to be that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be a true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the petition after it is filed into court. Emphasising on the words "under his own signature" occurring in the Section the Supreme Court held that the copy of the petition should contain the signature of the petitioner himself and that the accusation by an advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature. , The earlier judgment of the Supreme Court in Kama/am v. Dr. V. A Syed Mohammed (AIR 1978 SC 840) relied upon by the respondents in this O. P. was also considered by the Supreme Court in the above case and ultimately held that the provision requiring the petitioner to attest a copy of the petition under his own signature to be a true copy of the petition is mandatory in nature. In view of the judgment of the Supreme Court in Sarifud-Din v. Abdul Gani (MR 1980 SC 303)I fee! that the contention of the petitioner has to be upheld and the order ext. P3 of the Principal Munsiff has to be set aside on this ground. The contention of the counsel for the respondents is that an election petition can be filed within 30 days as contemplated under Sec. 89 of the Act and that the said petition was filed in time on 29. 9. 1995 after the results of the election were declared declaring the petitioner as the successful candidate on 28. 9. 1995. He would submit, that on receipt of the notice in the election petition and a copy of the election petition, the petitioner raised an objection on 6. 10. 1995 which was rejected by Ext, P3 -order on 21. 10. 1995 giving 3 days' time to the first respondent to cure the defects and the defects were cured immediately thereafter and hence the petition filed by the 1 st respondent was without any defect as the curing of the defects were done within 30 days from the date of the declaration of election results.