SARASWATHI Vs. KAMALA

JUDGEMENT

(1.) The revision petitioner was the successful candidate from Ward VI of Kumbadaje Grama Panchayat in the Panchayat Election held on 23.9.1995. One of the defeated candidates, respondent No. 1 herein filed an Election Petition OP 9 of 1995 under S.88(b) of the Kerala Panchayat Raj Act, hereinafter called the Act, challenging the election of the revision petitioner. The revision petitioner raised objections to the Election Petition. Among the various objections, she also raised two preliminary objections regarding the maintainability of the Election Petition and sought a rejection of the Election Petition under S.93(1) of the Act. The two objections raised were that the Election Petition was not presented by the Election Petitioner (the present first respondent) in person as required by S.89 of the Act. The other was that there were allegations of corrupt practice in the Election Petition but the same was not supported by an affidavit as contemplated by S.91 of the Act and consequently, the Election Petition was not in accordance with S.89 of the Act. On the side of the Election Petitioner, it was contended in answer that there was no obligation on the petitioner to file an Election Petition in person and the presentation of the Election Petition by her counsel was sufficient compliance with the requirements of S.89 of the Act On the second aspect it was contended that the Election Petition was not based on any corrupt practice as contended by the successful candidate and therefore there was no need to file an affidavit as contemplated by S.91 of the Act. It was alternatively contended that failure to comply with S.91 of the Act was not fatal to the Election Petition so as to lead to its rejection under S.93(1) of the Act.

(2.) The Munsiff's Court, which is the forum constituted for the trial of the Election Petitions upheld the objection that since the Election Petition was not presented by the election petitioner in person, the same was liable to be rejected. That court also came to the conclusion that the Election Petition did contain allegations of corrupt practice and consequently it ought to have been supported by an affidavit as contemplated by S.91 of the Act. The Munsiffs Court therefore, dismissed the Election Petition.

(3.) In view of the Explanation to S.93(1) of the Act, the Election Petitioner filed an appeal under S.113 of the Act before the District Court. That Court took the view that there was no obligation that an Election Petition under the Act should be presented by a candidate in person and that a presentation through counsel was sufficient compliance with the requirements of the Act. That court also held that the Election was not being challeged by the Election Petitioner on the ground of corrupt practices as clarified by counsel for the Election Petitioner and consequently, no affidavit as contemplated under S.91 of the Act was needed. In that view, it also overruled the contention on behalf of the returned candidate that the failure to serve a copy of the affidavit supporting the Election Petition would be a violation of S.89(2) of the Act leading to a rejection of the Election Petition under S.93(1) of the Act. It thus revised the order of the 'Munsiff Court and directed the Munsiff Court to try the Election Petition on merits. This decision of the District Court is challenged by the successful candidate in this revision.