ORDER
M.R. Hariharan Nair, J.
1. Heard both sides on the aspect of maintainability of this Election Petition based on preliminary objections raised by the first respondent.
2. The petitioner and the respondents contested the election from No. 125 Eravipuram Legislative Assembly Constituency, the polling with regard to which took place on 10.5.2001. The petitioner was a Muslim League candidate and the first respondent represented the Revolutionary Socialist Party. When the results of the election was declared on 13.5.2001, the first respondent was declared elected with a margin of 21 votes. While the petitioner got 55617 votes, the first respondent got 55638 votes. The details of votes secured by other candidates (respondents 2 to 4) are not relevant for deciding the present controversy and hence not mentioned here.
3. The challenge made by the petitioner with regard to the declaration of result is under several heards. He contends that the 4 persons named in Annexure A voted twice, the result of which is that both votes cast by them would be void. the next allegation is that the 9 persons mentioned in Annexure B, though they were voters included in the electoral roll, were actually deceased as on the date of election and that in their place some other impersonators voted. As regards the 13 voters mentioned in Annexure C, the allegation is that they were actually aborad and that there was impersonation in their place. Likewise, as regards the 17 voters mentioned in Annexure D, the allegation is hat they were actually out of station on the date of poll and that there was impersonation resulting in undue benefit to the first respondent. As regards the five persons mentioned in Annexure E, the allegation is that by the time they reached the polling booth somebody else had already cast their votes and that they could not give tender votes which were not counted. The petitioner contends that the votes given in their name by impersonators went in favour of the first respondent and those votes were also taken into account while declaring the result.
4. Based on Annexure F, which is a copy of a letter addressed to the District Collector, Kollam, the contention is that large number of voters whose names were in the final electoral roll were not permitted to vote by the Presiding Officer on the ground that their names did not appear in the marked voters list handed over to him and actually three pages of the voters list containing Sl. Nos. 1249 to 1330 were missing in the voters list supplied to the Presiding Officer of Booth No. 185 of the Constituency and that even after complaint was made as per Annexure F, two of the three missing pages were delivered to the Presiding Officer at about 2.30 p.m. and the remaining one page was delivered only at 3.30 pm with the result that 48 persons coming within the said group had to return without voting. The contention is that refusal to receive these 48 votes has materially affected the result of the election. The details of these voters are in Annexure G.
5. As regards the six voters mentioned in Annexure H, the contention is that they were denied postal ballot papers though they were entitled therefor and their votes were in fact cast by impersonation which were also taken into account while declaring the result. Annexure I is one of the complaints filed in the above matter. Annexure J gives the names of 34 voters, who exercised their franchise through postal ballot. The allegation is that there was no due attention by any Gazetted Officer as contemplated by law and that in the absence of such attestation their postal votes should not have been taken into account as done by the Returning Officer. Annexure K is a copy of complaint preferred by the Chief Election Agent of the petitioner on 13.5.2001 alleging that many of the postal ballots were found tempered with and that many of those ballot papers contained markings which appears to have been made by one and the same person.
6. Annexure L gives the details of 141 voters who could not exercise their franchise as their names had been deleted after the last date for filing nominations, which was not permissible at all. It is alleged that many such persons made written complaint to the Presiding Officers of the concerned polling booths seeking permission to exercise their franchise and that the requests were wrongly denied. Annexures M to P are copies of the complaints made by voters of the above category. Annexure Q is a copy of the complaint made by 58 voters of Eravipuram Legislative Assembly Constituency expressing similar grievance. As regard the 14 voters mentioned in Annexure R, the allegation is that they were not allowed to vote for the reason that in the marked list their names were underlined with red ink. It is alleged that the names of these voters were removed by the concerned officers to safeguard the interest of the political party then in power and that had they been permitted to vote, they would have voted in favour of the petitioner who could then have won by a comfortable majority.
7. The preliminary objections raised by the first respondent are the following:- Firstly it is argued that the petition, which was filed in Court on 26.6.2001, is not maintainable as it was presented beyond the period of 45 days which is the period of limitation prescribed under S. 81(1) of the Representation of the People Act, 1951 (for short ‘the Act’). The second contention is that the petitioner has not been properly verified as contemplated in S. 83(1)(c) of the Act. It is pointed out that at least some of the contentions raised by the petitioner are based on information only and that it has not been stated so int eh verification portion. The third contention is that there is no proper authentication of the English translation of those of the annexures aforementioned. Which are in Malayalam as contemplated, made by any advocate, assuring that the translations are true vis-a-vis the originals which are in Malayalam. In this regard the requirements in R.219 of the Kerala High Court Rules is also relied on. Lastly it is argued that what is supplied to the respondent is not a true copy of the originals produced in court.
8. The points for decision therefore are:-
1) Whether the E.P. is filed within time?
2) Whether the E.P. is liable to be rejected for any of the reasons pointed out by the 1st respondent?
9. Point No. 1: As regards the first contention, the position is covered by the decision in Tarun Prasad Chetterjee v. Dinanath Sharma (2000 (8) SCC 649). The decision is authority for the proposition that S. 9 of the General Clauses Act is applicable with regard to election petitions as well in view of R. 2(6) of the Representation of the People (Conduct of Election & Election Petition) Rules, 1951 and that the date of election (date of declaration of election) is liable to be excluded while computing the period of 45 days. In view of the said position, the present petition filed on 26.6.2001 is not barred by limitation as it was filed on the 44th day from 14.5.2001.
10. Point No. 2: In the index available at the facing sheet of the election petition presented in Court the Election Petition is said to contain pages 1 to 11 and Annexure A is said to be available at page 12 thereof. The First respondent has produced before Court the copy of the Election Petition received by him which would show that the corresponding sheet the Election Petition is said to contain pages 1 to 12 and Annexure A is mentioned to be available at page 13. Similarly there is corresponding difference with regard to the pages in which Annexures B to R are also available in the original and in the copy. Full details thereof need not be mentioned here. Suffice it to say that in the original of Annexure R is in page 55 but in the copy it is in page 56.
11. It is based on the above discrepancy that the contention of the first respondent that thee is no service of a true copy, (in the sense, identical copy) on him, is built up. I find no substance in the aforesaid contention. Though it is a fact that the page numbers differ as stated above, the reason for the discrepancy is that the verification of the Election Petition at the last portion thereof ended at the close of page 11 in the original. As regards the copy for service on the first respondent, it had further to be certified as a true copy, for which some more space was additionally required in the copy. The required space was not available in page 11. That is why the certificate as true copy had to be incorporated in an extra page in the copy. In fact the contents of page 12 in the copy is nothing but the certificate as true copy of the Election Petition. Obviously the first respondent cannot at all be misled in any manner by the incorporation of an additional page as above. What is served is an identical copy; but with the certification as true copy at the end. The respondents are not at all prejudiced in any manner in the matter of service of copy as above. Nor has the petitioner achieved any undue benefit by service of copy with an additional page wherein certification as true copy was included.
12. The object of serving a true copy of the Election Petition and the affidavit field in support of the allegation of corrupt practice and other grounds on the respondent in an Election Petition is to enable the respondent to understand the charge against him so that he can effectively meet the same in the written statement and prepare his defense. It is not the form the mattes, but it is the substance. What is intended is only service of a copy which is substantially the same as the original and which does not either contain any additional material or any omission vis-a-vis the original. The copy should be such as to enable the respondent to understand the case against him and to meet the allegations effectively. Though the copy which differs in material particulars from the original cannot be treated as a true copy, there is no requirement of law that a photographic reproduction of the original should itself be served on the respondent. The test is whether the variation, if any, is intended or calculated to mislead the respondents. The position is covered by the decision of 6 Judges in T.M. Jacob v. C. Poulose & Ors. (AIR 1999 SC 1359). That was a case where the Original Petition contained an endorsement that the affidavit concerned had been duly affirmed, signed and verified by the petitioner before a notary. Copy of the affidavit served on the respondent did not contain the name and address of the notary or his stamp. After considering eh relevant case law on the point, especially the decision of 5 Judges in Muruka Radhey Shyam Ram Kumar v. I. Roop Singh Rathore & Ors. (AIR 1964 SC 1545) the court found that the Election Petition was not liable to be rejected merely for the reason that what was served on the respondent was not an exact copy of the original. Only impermissible violations will entail rejection of Election Petition. In view of the decision of these Constitution Benches, it is not necessary to refer to the decisions cited at the Bar which are of beaches of lesser strength and based on different facts. In the circumstances the argument advanced by the learned counsel for the respondent in support of his plea that the petition is liable to be rejected on the above ground does not deserve any merit.
13. The other contention of the respondent is that the English Translation of Annexures F, I, K, M, N, O and P, which are produced as Annexure F(a), I(a) and so on, are not certified as true copy by the petitioner’s advocate as warranted by R. 219 of the Kerala High Court Rules. The said provision is to the effect that no document in any language other than English shall be permitted in evidence unless it is accompanied by an English translation, which shall either be the official translation or the translation, the accuracy of which is certified by an advocate of the High Court. As far as Annexures F(a), I(a) etc. aforementioned are concerned, there is certification by the petitioner declaring that the document is a true English translation of the documents mentioned as annexures concerned produced in the Election Petition and believed by him to be the same. Underneath the said verification not only the petitioner but also his counsel has signed. In fact the signature of the counsel appears under the following words “verified today this the 26th day of June, 2001 at Ernakulam”. However, he has not put the words ‘certified as true translation’ above his signature.
14. The question arises whether the lapse justifies rejection of the petition. According to the learned counsel for the first respondent a distinction has to be drawn between cases where full details contained in the annexures are also incorporated in the body of the petition and other cases where full details are available only in the annexures and where the gist thereof alone is contained in the body of the petition. He further contended that the case whether the full text of the annexures is not available in the body as it happens here, in the absence of proper certification under R. 219 the petition has to be rejected on the footing that there is no properly filed election petition. The petitioner, however, maintains that the bar in R. 219 is only against ‘reception in evidence’ of the document concerned and that he would cure the defect before the case reaches the stage of trial.
15. A more or less similar question came up before a Bench of 3 learned Judges in Dr. Vijay Laxmi Sadhoo v. Jagdish ((2001) 2 SCC 247). The defect involved there was in fact graver in nature in so far as the defect in verification involved there was in the alteration of the affidavit supporting averments of corrupt practices and a valid affidavit being the sine qua non for maintainability of the petition. Following the dictum in an earlier Bench decision of 3 Judges in F.A. Sapa v. Singora & Ords. (AIR 1991 SC 1557) that if the document concerned is not an integral part and is referred to in the E.P. only as an item of evidence of any fact, the defect in verification would not be fatal, the Apex Court reiterated that the defect would be curable and that the E.P. cannot be dismissed under S. 86 of the Act in Such circumstances. As held in F.A. Sapa’s case the interests of justice would be served in the present case if an opportunity is allowed to the petitioner to cure the defect under R. 219 of the High Court Rules before the stage of evidence is reached. The findings in G. Mallikarjunappa & Anr. v. Shamanur Shivasankarappa & Ors. ((2001 4 SC 428); Bhagwan Rambhau Karankal v. Chandrakant Batesingh Raghuwanshi & Ors. (2001 (6) Supreme 101) and in the decision of the Constitution Bench in T.M. Jacob’s case (1994) 4 SCC 274) also fully justify this conclusion.
16. The other contention of the respondent is that the verification made by the petitioner is not proper in so far as he has not separately shown which all details are from information received by him and from whom and which others are within his own direct knowledge as required under O. VI R.15 of the C.P.C. This aspect was considered in K.M. Mani v. P.J. Antony & Ors. ((1979) 2 SCC 221). It was found that it was enough for the election petitioner to say that the statements made in the relevant paragraphs are true to his information and that this would be sufficient compliance with O. VI R. 15 of the C.P.C. though the verficiation made in that case was only that the averments in paragraphs 3 to 6 were true according to the information received by the petitioner. It may be mentioned here, with reference to the details of the challenge about which reference has already been made, that there is no allegation of any corrupt practice involved in the present petition and that the allegations are only with regard to double voting, denial of voting, failure to take into account postal votes and the like. In such a case it cannot be said that there is much scope for detailed verification with regard to each and every fact. This is a case where the petitioner asserts that all the details mentioned in paragraphs 1 to 12 are true to the best of his knowledge, information and belief and no part thereof is false. I am of the view that in the nature of the contentions contained in the petition, the verification as above is proper and sufficient. I also record the submission made by the learned counsel for the petitioner that if there is any further verification required, the petitioner would be ready to comply with the directions of the court in that regard. That such defects in verification are curable is clear from para 8 of the decision of the Constitution Bench in Muruka Redhey Shyam Ram Kumar’s case (supra) also where the identical question was considered and it was found that such defects are curable and does not justify dismissal of the Election Petition itself.
In the circumstances I am of the view that the objections raised by the respondent are insufficient to reject the Election Petition. The petitioners will be free to move for the required amendments to cure the defects mentioned supra.
17. Written statement has already been filed in the case. Objection to the Recrimination motion petition has also been filed. Post the case for issues to 17.9.2001.