Constitution of India - Article 227 -Kerala Panchayat Raj Act, 1994 - Section 87

Judgment :

The following questions arise for consideration in this original petition filed under Article 227 of the Constitution of India:

i) Can an election petition be amended wherein the election has been called in question on the ground of 'double voting' and not on the ground of 'corrupt practice' ?

ii) Is an amendment of the election petition permissible after the date fixed for the respondents to appear when the trial is deemed to have commenced in law ?

iii) Whether 'material facts' or 'particulars' could be introduced by such amendment after the time limit prescribed to question the election and is not the plea then barred by limitation ?

Divergent answers come from Mr.D.Krishna Prasad, Advocate on behalf of the petitioner and Mr.Jose J Matheikel, Advocate on behalf of the first respondent for these questions.

2. The petitioner is the returned candidate from Ward No.XIII of Kallar Grama Panchayat whose election has been called in question by the first respondent. The first respondent lost the election by a margin of two votes and has filed the election petition under Section 87 of the Kerala Panchayat Raj Act, 1994. The first respondent averred in the election petition that 7 votes cast in favour of the petitioner are liable to be eschewed on account of double voting. The names of the seven voters who allegedly indulged in double voting have been well furnished in the election petition. Reliance is placed on Section 76(3) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act') which is extracted hereunder:-

“76. Right to vote: (1) ..........

(2) ..............

(3) No person shall vote at a general election in more than one constituency of the same level, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.

Reliance is also placed on Section 102(1)(d)(iv) of the Act which is extracted hereunder:

102. Grounds for declaring election to be void: (1) Subject to the provisions of subsection (2), if the court is of opinion -

(a) ................

(b) ..................

(c) ..................

(d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected -

(i) .................

(ii) .................

(ca) ..................

(iii) .................

(iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, the court shall declare that the election of the returned candidate to be void.” The election petition seeks to declare that the election of the petitioner is void and that the first respondent is the duly elected candidate from the ward in question.

3. The election petition was filed on 25.11.2010 within the permissible period of 30 days from 27.10.2010 the date on which the petitioner was declared elected. The petitioner filed a statement of recrimination on 7.2.2011 as provided under Section 99 of the Act challenging the rival claim of the first respondent. The first respondent thereafter filed an application on 21.1.2012 seeking to amend the election petition. The purpose of the amendment was to incorporate the name of one more voter in the election petition who had allegedly indulged in double voting. The first respondent called in aid Section 94 of the Act to sustain the plea for amendment of the election petition. The petitioner filed an objection to the application for amendment contending inter alia that it is impermissible under the Act. The petitioner contended that an amendment of an election petition could be resorted to only when the election is challenged on corrupt practice. Heavy reliance was placed on Section 93(4) of the Act which specifically allows particulars of corrupt practice to be amended. The court below has allowed the application for amendment which is impugned by the petitioner in this original petition.

4. The petitioner str