IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 185 of 2010()
1. KUNNATHADATHIL KUTTIHASSAN,
... Petitioner
Vs
1. M.ABDUL KAREEM @ KUNHIPPA,
... Respondent
For Petitioner :SRI.T.SETHUMADHAVAN
For Respondent :SRI.SAJU.S.A
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/06/2010
O R D E R
THOMAS P JOSEPH, J.
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C.R.P.No. 185 of 2010
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Dated this 15th day of June, 2010
ORDER
The returning officer declared petitioner as elected from
ward No.11 of Othukkungal Grama Panchayath, in Malappuram
District by a margin of 3 votes against his only rival, the
respondent. Respondent was not satisfied with the manner in
which some voters were permitted to exercise their franchise and
the rejection of one postal ballot which was cast in his favour.
Challenging the election mainly on the said illegalities respondent
filed petition before the Election Tribunal (O.P.No.45 of 2005). The
Election Tribunal vide order dated 21-11-2009 found illegality in
the manner in which 3 voters were permitted to vote through their
companions and in the rejection of one postal ballot cast in favour
of respondent. The votes exercised by those voters through their
companions were found to be in favour of petitioner and the same
was rejected. The postal ballot found to be illegally rejected by the
returning officer was found cast in favour of respondent. That vote
was accepted. Accordingly respondent was declared elected by a
margin of one vote. The order of the Election Tribunal was
challenged by petitioner before learned District Judge, Manjeri in
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A.S.No. 47 of 2009 but, in vain. Judgment of learned District Judge
is under challenge in this revision. Learned counsel for petitioner
contends that finding of the courts below that there was illegality in
3 (three) voters being permitted to vote through companions is not
sustainable. According to the learned counsel there are no sufficient
pleadings in the petition to support the evidence brought in by the
respondent and hence no reliance can be placed on such evidence.
Reliance is placed on the decisions in Om Prabha Jain Vs. Abnash
Chand & Another (AIR 1968 SC 1083) and Vijayaraghavan Vs.
Girija Surendran (2002(1) KLT Case No.110). It is also the
contention of learned counsel that there is no proper identity of the
voters referred to in paragraph 4 of the petition and the persons
examined by the Advocate Commissioner and referred to by PWs.13
and 14. It is also contended by the learned counsel that rejection of
postal ballot contained in Ext.X1 is valid. At any rate the relevant
documents are not brought into evidence in that those documents
are not marked in evidence and hence cannot be relied on. Reliance
is placed on the decision in Achuthananthan Vs. Francis (2001(1)
KLT 740). Learned Senior Advocate appearing for respondent in
response contended that there is sufficient evidence to show that 3
persons were permitted to exercise their franchise through
companions illegally and against the mandate of Rule 36 of the
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Kerala Panchayath Raj (Conduct of Election) Rules (for short, “the
Rules”). It is also contended that contention now advanced as to
want of identity is not sustainable on account of intrinsic evidence on
record and also since no such contention was raised in any of the
courts below. It is the further contention of learned Senior Advocate
that the postal ballot was rejected by the returning officer without
any valid reason and courts below are right in concluding that
respondent has won by a margin of one vote.
2. It is not disputed that petitioner was declared elected by
the returning officer from the ward in question by a majority of three
(3) votes. Several grounds are set up in the petition in challenge of
the election. But, in the evidence, allegations are confined to
allowing three persons to vote through companions and rejection of
one postal ballot. Averments concerning the above grounds are set
forth in paragraph 4, 5 and 12 of the election petition.
3. In paragraph 4 of the election petition it is stated that
Abdul Gafoor and Abdul Rahiman of Kunnathadathil house (serial
Nos.490 and 492 respectively, in Ext.A2, voters list) are mentally
retarded persons incapable of making a free decision of their own as
to their choice of candidate at the election but against the mandate
of Rule 36 of the Rules their votes were allowed to be cast through
their companions who were active workers of the political party to
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which petitioner belonged. Their votes cannot be reckoned for the
purpose of deciding the winner at the election. In paragraph 5 of the
election petition it is contended that Kunnathadathil Gafoor, serial
No.490 in Ext.A2 though physically handicapped, had no incapacity
to identify the symbol and mark the symbol on his own, he did not
require the assistance of a companion as provided in Rule 36 of the
Rules but his companion was permitted to cast the vote which is
illegal. In paragraph 12 of the election petition averments concerned
alleged illegal rejection of one postal ballot which was otherwise cast
in his favour. Petitioner denied the allegations. So far as allegations
in paragraph 4 of the petition regarding Abdul Gafoor and Abdul
Rahiman of Kunnathadathil house is concerned, petitioner while
admitting that the said persons were allowed to vote through
companions denied that they were mentally unsound so as to be not
able to decide on their own about their choice of candidate. Hence
the returning officer has not committing any illegality in permitting
the said persons to vote through their companions. So far as
averment in paragraph 5 of the election petition is concerned, it is
contended by petitioner that Kunnathadathil Gafoor was in such a
physical condition that he could not exercise his vote except with the
assistance of a companion and hence there is nothing illegal in
permitting him to vote with the assistance of a companion. When it
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came to the alleged rejection of postal ballot it is contended that
postal ballot was not in accordance with the relevant rules and that
the cover in form No.19 referred to a different booth and ward
number and hence the returning officer was justified in rejecting the
same.
4. I have referred to the rival contentions concerning
companion voting of Abdul Gafoor and Abdul Rahiman of
“Kunnathadathil house”. PW14 is the father of Abdul Gafoor and
Abdul Rahiman. PW13 was the Medical Officer of Primary Health
Centre, Kottakkal and he issued Exts.A7 and A8, certificates relating
to the mental condition of Abdul Gafoor and Abdul Rahiman (I will be
referring to the contention of learned counsel for petitioner about
identity of the said persons a bit later). Evidence of PW14 shows
that his sons, Abdul Gafoor and Abdul Rahiman are suffering from
congenital mental retardation. PW13 had occasion to examine the
said persons. He is acquainted with the said persons and PW14 for
quite sometime. PW13, after examination of the said Abdul Gafoor
and Abdul Rahiman issued Exts.A7 and A8 certifying that Abdul
Gafoor is suffering from mental retardation by 50% and Abdul
Rahiman is suffering from the same illness by 45%. The Advocate
Commissioner who conducted a voir dire examination of the said
Abdul Gafoor and Abdul Rahiman as per order of the Election
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Tribunal has concluded and reported that the said persons are
mentally retarded and are not able to take decision of their own.
Thus, it is with reference to the said evidence of PWs.13 and 14,
Exts.A7 and A8 and the report of the Advocate Commissioner that
courts below came to the conclusion that Abdul Gafoor and Abdul
Rahiman are mentally retarded congenitally and on account of that
were unable to take a decision of their own.
5. Then the next question is whether the returning officer is
legally correct in permitting them to vote through companions.
PW.14 exercised the vote for Abdul Rahiman as companion while
Noushad, a nephew of PW14 voted as companion for Abdul Gafoor.
Under Rule 36 of the Rules, provision is made for companion voting.
The provision says,
“if the Presiding Officer is satisfied that
owing to blindness or other physical infirmity an
elector is unable to recognize the symbols on the
ballot paper or to make a mark thereon without
assistance, the Presiding Officer shall permit the
elector to take with him a companion of not less
than eighteen years of age to the voting
compartment for recording the vote on the ballot
paper on his behalf and in accordance with his
wishes, and if necessary, for folding the ballot
paper so as to conceal the vote and inserting it
into the ballot box”.
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(emphasis supplied)
Going by Rule 36, it leaves me in no doubt that grant of permission
for companion voting is permissible only when the Presiding Officer
is satisfied that due to blindness or other physical infirmity an elector
is unable to recognize the symbols or make a mark thereon in
accordance with his wishes. The Rule also makes it abundantly
clear that the companion is to vote on behalf of the elector and in
accordance with the wishes of the elector. Rule 36 contemplates that
the elector who is permitted to have companion voting must be able
to form and express his wish as to the choice of the candidate but on
account of blindness or other physical infirmity is unable to
recognize the symbols or to make a mark on it. Rule 36 does not
take in a case where on account of insanity, mental retardation or for
any other reason the elector is unable to form or express his own
wish as to the candidate for him he wishes to vote. If such an
interpretation is accepted it would mean that the vote of a mentally
retarded or insane person is being cast not by the said elector but
the companion concerned as the latter wishes. He is not carrying
out the wish of the elector concerned. In short, it is not a case of the
elector concerned voting. That is not the purport of Rule 36 of the
Rules. No doubt, under Section 17 (1(b)) of the Kerala Panchayat
Raj Act (for short, “the Act”) a person shall be disqualified for
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registration in an electoral roll only if he is of unsound mind and
stands so declared by a competent court. In this case there is no
contention for any of the parties that any competent court has
declared Abdul Gafoor and/or Abdul Rahiman as persons of unsound
mind. That only meant that the said persons were eligible or
qualified for registration in the electoral roll but, did not mean that
they came within the purview of Rule 36 for the purpose of
companion voting. Evidence on record as I stated above and the
courts below concurrently held is that on account of congenital
mental retardation of Abdul Gafoor and Abdul Rahiman were not
able to form or express their wish as to the candidate to whom they
wanted to exercise their vote. In that situation Rule 36 of the Rules
had no application and the Presiding Officer could not legally permit
the said persons to vote through their companions. Finding of the
courts below that permission granted for companion voting for Abdul
Gafoor and Abdul Rahiman is contrary to Rule 36 of the Rules and
hence is illegal does not call for interference on facts or in law.
6. The more forcible argument advanced by the learned
counsel for petitioner is that there is no proper identity of voters
under Sl. Nos.490 and 492 of Ext.A2 referred to in the election
petition. With Abdul Gafoor and Abdul Rahiman referred to in the
evidence of Pws.13 and 14 and Exts.A7 and A8, who are Sl.Nos.542
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and 543 of Ext.A2. According to the learned counsel, in paragraph 4
of the election petition what is averred is that serial Nos.490 and
492, ‘Abdul Gafoor and Abdul Rahiman of Kunnathadathil’ are not of
sound mind, could not have exercised their votes and the Presiding
Officer was not legally correct in permitting them to have companion
voting but, the evidence brought in is in respect of Sl. Nos.542 and
543 (Abdul Gafoor and Abdul Rahiman of Kunnakkaden house) who
are not proved to be serial Nos.490 and 492 referred to in the
election petition. There is no proof of identity as regards the persons
referred to in paragraph 4 of the election petition as serial Nos.490
and 492 and the persons referred to in the evidence ;of Pws.13 and
14 and Exts.A7 and A8.
7. The argument sounds attractive and requires
consideration. Nowhere in the election petition it is stated that
Abdul Gafoor and Abdul Rahiman referred to in paragraph 4 of the
petition are ‘serial Nos.542 and 543’ in Ext.A2 or belong to
‘Kunnakkaden house’. Instead averments in paragraph 4 relate to
Abdul Gafoor and Abdul Rahiman (Sl. Nos.490 and 492 in Ext.A2) of
‘Kunnathadathil house’. The question is whether it is the very same
electors described as serial Nos.490 and 492 who are examined by
the Advocate Commissioner referred to in Exts.A7 and A8 and
regarding whom PWs.13 and 14 have given evidence. It is seen from
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the records that to examine Abdul Gafoor and Abdul Rahiman of
‘Kunnathadathil house’ (Sl. Nos.490 and 492 in Ext.A2) respondent
had taken out summons vide order on I.A.No.1955 of 2005 but that
summons was returned with the endorsement that Abdul Gafoor and
Abdul Rahiman refused to accept the summons stating that they are
not residing in ‘Kunnathadathil house’ (as stated in Sl. Nos.490 and
492 of Ext.A2) but are ‘Kunnakadan Abdul Gafoor and Abdul
Rahiman’ (as stated in Sl.Nos.542 and 543 of Ext.A2). Following
that, respondent filed I.A.No.143 of 2007 to issue summons to the
said persons in the house name of “Kunnakadan” (as described in
serial Nos.542 and 543 of Ext.A2). That application was rejected by
the Election Tribunal observing that there is no foundation to that
effect in the election petition. Respondent challenged that order in
this court in W.P.C.No.4824 of 2007. That writ petition was allowed
by this court observing that respondent is at liberty to take summons
to the said persons (in the house name ‘Kunnakkaden’). Accordingly
summons was issued to the said persons. It is the said persons who
were examined by the Advocate Commissioner. It is pertinent to
note from the averments in paragraph 2 of the affidavit in support of
I.A.No.143 of 2007 that it is stated that Abdul Gafoor and Abdul
Rahiman (serial Nos.490 and 492 of Ext.A2) also have vote (in the
same booth) as serial Nos.542 and 543 of Ext.A2. In the counter
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statement filed by petitioner in response to the said affidavit there is
no denial of the statement that Abdul Gafoor and Abdul Rahiman
(voter Nos.490 and 492) do have vote as serial Nos.542 and 543 also.
Instead, what is contended in paragraph 2 of the counter statement
is that the application (I.A.No.143 of 2007) is filed to receive a list of
witnesses – Kunnakadan Abdul Gafoor and Abdul Rahiman (who are
voter Nos.542 and 543 in Ext.A2) and that there is no allegation
against the said voters and hence they need not be summoned as
witnesses. The identity referred to in paragraph 2 of the affidavit in
support of I.A.No.143 of 2007 was not disputed by petitioner in his
counter statement.
8. PW.14 denied that he has a house name as
‘Kunnathadathil’ and asserted that he is ‘Kunnakadan’ Moideenkutty.
He deposed that his house No. is 340. As per his evidence in the said
house, along with him his two sons, Abdul Gafoor and Abdul
Rahiman, wife, Pathumma and daughter, Ami were residing. He
stated that he has no other house in any other house number. It is
interesting to note that in Ext.A2, serial Nos.488 to 492 are
“Kunnathadathil” Moideenkutty, his wife Pathumma, sons, Abdul
Gafoor and Abdul Rahiman and daughter, Ami. When it came to
serial Nos.540 to 543 (in Ext.A2), it refers to “Kunnakadan”
Moideenkutty, wife, Pathumma and sons, Abdul Gafoor and Abdul
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Rahiman. There is no difference in the name of father of
Moideenkutty (there is however, slight difference in the age of the
electors). There is no mention of daughter, Ami in serial Nos.540 to
543. I find that though there is difference in the house number,
house name and some difference in the age of persons described in
serial Nos.488 to 492 and serial Nos.540 to 543, the name of electors
given are the same. A further fact to be noted from the report of
Advocate Commissioner is that the Commissioner examined
“Kunnakadan” Abdul Gafoor and Abdul Rahiman in “their house
bearing door Nos.301”. It is also seen from the report of Advocate
Commissioner that he had issued notice to the counsel on both sides
scheduling examination of the said persons “at their house bearing
door No.301”. There was no objection to the examination of the said
persons “in their house bearing door No.301”. On the other hand the
deposition of the said witnesses recorded by the Advocate
Commissioner are counter signed by counsel on both sides. Thus
there is intrinsic evidence from the report of the Advocate
Commissioner which is not challenged that Abdul Gafoor and Abdul
Rahiman who were examined by the Advocate Commissioner are
residents of the house bearing door No.301. It is seen from Ext.A2
that in serial Nos.488 to 492, the new house number is given as ‘301’
along with house No.340. In serial Nos.540 to 543 the house
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numbers given are 323, 478 and ‘340’. In other words in Ext.A2, for
serial Nos.488 to 492 and 540 to 543, a common door number is
given as “340”. PW14 claimed that his house No. is ‘340’. I stated
that for serial Nos.488 to 492 a new house number is given as “301”
ie, in respect of Kunnathadathil Moideenkutty, his sons Abdul Gafoor
and Abdul Rahiman, wife Pathumma and daughter, Ami. Thus it is
clear from Ext.A2 that PW14 and his sons Abdul Gafoor and Abdul
Rahiman were residing in house No.301 (which also has door
No.340) at the relevant time. It is that house number which the
Advocate Commissioner has described in his report as door number
301 in which witnesses, Abdul Gafoor and Abdul Rahiman are
residing. Thus, it is clear that it is the very same persons referred to
as serial Nos.490 and 492 who were examined by the Advocate
Commissioner though, their name appeared in the very same voters
list (Ext.A2) under serial Nos.542 and 543 as well. That is what the
respondent has stated in paragraph No.2 of his affidavit in support of
I.A.No.143 of 2007 (to issue summons to the said persons) and which
I said, was not disputed in the counter statement of petitioner.
9. I must also bear in mind, as the learned Senior Advocate
appearing for respondent has argued that no contention regarding
identity of said persons (between serial Nos.490 and 492 and 542
and 543) was raised before the learned District Judge as revealed
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from the memorandum of appeal. No such contention is seen raised
in the Election Tribunal also. In the circumstances I am not
impressed by the contention advanced by the learned counsel (for
the first time in the revision petition) that there is dispute regarding
identity which has been not addressed by the courts below or that
the identity is not established.
10. So far as contention regarding lack of pleadings is
concerned that is concerning identity of serial Nos.490 and 492 and
serial Nos.542 and 543. The decisions relied on by the learned
counsel for petitioner involved cases where allegations which
ultimately affected the validity of election (grounds set up) were not
pleaded in the and it was held that in the absence of specific plea,
evidence cannot be looked into. It is the case of respondent that
Abdul Gafoor and Abdul Rahiman who belonged to Kunnathadathil
house are serial Nos.490 and 492 in Ext.A2 but when the summons
was not accepted by them, respondent learned that names of the
same persons figure in Ext.A2, voters list as serial Nos.542 and 543
also in which address summons was issued as permitted by this court
and the said elector were examined by the Advocate Commissioner.
As such, it is not a case of lack of pleadings as learned counsel for
petitioner puts it. Thus, it is on record that Abdul Gafoor and Abdul
Rahiman referred to in the petition were mentally retarded, were not
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able to form or express their own wish as to the candidate to whom
they should exercise their vote through companions and hence
permission granted for companion voting was against rule 36 of the
Rules. I find little reason to interfere with the said finding.
11. Then comes the case of Kunnathadathil Gafoor, examined
as PW7. It is not disputed that he was permitted to vote through a
companion. There is no dispute that PW1 is physically handicapped
but the question is whether his physical disability is such that the
Presiding Officer was justified in permitting companion voting for
him. There is no case or evidence that PW7 had any blindness or
mental incapacity which disabled him from recognizing the symbols
on the ballot paper or making a mark on it. Evidence of PW7 shows
that he was running a telephone booth and was riding a three
wheeler (scooter) during the relevant time. He was physically carried
to the booth by the companion and the companion was permitted to
exercise his vote. But evidence is that PW7 had no difficulty to
recognize the symbols on the ballot paper and make a mark on it on
his own. His physical disability was only for walking. It is seen from
the deposition of PW.7 that he has put his signature on each page. It
is evident that PW7could have recognized the symbols on the ballot
paper and made a mark on it on his own without the assistance of
any companion, once he was brought into the polling booth.
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Assistance was required only to take down to the polling booth. Rule
36 of the Rules therefore had no application in the case of PW7.
Hence permitting PW7 to vote through companion was against Rule
36 and hence illegal. Courts below found that procedure adopted by
the Presiding Officer in that regard is illegal. I have no reason to
disagree.
12. What remained is the validity of rejection of the postal
ballot. The Presiding Officer rejected that postal ballot for the
reason that the outer cover in form No.19 (marked Ext.X1) contained
a different endorsement regarding ward number. It is not disputed
that the ward in question is ward No.11 (of Othukkungal Grama
Panchayath) and the booth name is ‘Valiyaparamba’. On the outer
side of cover in form No.19 the ward number stated is ‘No.12’ but
the booth name is written correctly as ‘Valiyaparamba’. Rule 50 of
the Rules speaks about postal ballot. That provision says that
Presiding Officer shall before commencement of counting of ballot
papers in the ballot box deal with the postal ballot papers in the
manner provided therein. As per sub rule (c) if the declaration is not
valid, the postal ballot is to be rejected. In this case only defect
Presiding Officer noticed so far as the postal ballot under challenge
is that on the outer side of the cover in Form No.19 a different ward
number was written but, admittedly, by the Presiding Officer himself.
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Name of the ward stated was correct. Inner cover contained the
declaration in Form No.16 made by the elector which admittedly
related to the ward in question. In the circumstance Presiding
Officer was not justified in rejecting the postal ballot for the reason
of the mistake (may be, inadvertent) he committed in making
endorsement on the outer cover in Form No.19 regarding the ward
number. Rejection of the postal ballot paper was therefore illegal as
the courts below also held.
13. Learned counsel for petitioner has an argument that
relevant election papers are not exhibited in evidence and hence the
same cannot be looked into. It is in support of that contention
learned counsel has relied on the decision in Achuthananthan Vs.
Francis (supra). Mere production of seal box of postal papers or
documents forming part of recording of election was held to be not
sufficient. In this case the relevant votes, postal or otherwise or its
counter foils have not been exhibited in evidence but paragraph 24
and 25 of the order of Election Tribunal state the procedure adopted
by the election Tribunal in this regard. It is stated that in the
presence of both parties and their counsel the envelope in Form
No.19 (marked Ext.X1) was opened and the postal ballot in it was
identified through PW4 (Presiding Officer) who was recalled and
further examined. It is true that PW4 stated that at the time of his
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earlier examination Ext..X1 cover was seen not opened but at the
time of his further examination that cover was seen opened. Reason
is that in the meantime as permitted by this court in W.P.C.No.7412
of 2007 the Election Tribunal had opened the relevant papers in the
presence of parties and counsel as stated in paragraph 24 of its
order. Similar was the case with respect to the votes cast by Abdul
Gafoor, Abdul Rahiman and PW7. That was also done in the
presence of both parties and their counsel. The proceedings
prepared by the Election Tribunal in that regard is signed by
counsel on both sides. In that situation, petitioner has no reason to
complain that the said documents are not exhibited in evidence and
hence cannot be looked into. I reject that contention.
14. On the question whether finding entered by the courts
below have materially affected result of the election, following facts
and figures assume importance.
Votes polled by the candidates as declared by the Presiding Officer (PW.4)
Petitioner – 312
Respondent – 309
(petitioner was declared elected by a majority of three votes)
The Election Tribunal after referring to the ballot papers of Abdul
Gafoor, Abdul Rahiman and PW7 has held that those votes went in
favour of petitioner. Those three votes being illegally cast, are to be
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excluded. That means, less those three votes (which were cast in
violation of Rule 36 of the Rules) votes polled by the petitioner came
to 309 (312-3). The postal ballot which was illegally rejected by the
PW4, the Presiding Officer was cast in favour of respondent. It has
to be counted in favour of the respondent. It brought the votes
polled by the respondent to 310 (309+1). That means, respondent
has won the election by one vote. It follows that the illegality
committed at the election as found above has materially affected the
result of election. In the circumstances I do not find reason to
interfere with the judgment/order under challenge.
The revision petition fails. It is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-