P.A. Mohammed, J.

1. The common question involved in this batch of Writ Petitions relates to the power of this Court under Article 226 or 227 of the Constitution of India to interfere with the interlocutory orders passed by the Courts/Election Tribunals in deciding the election petitions arising out of the elections to the local bodies like Panchayat, Municipal Corporations etc. The elections to the Panchayats and Municipal Corporations are regulated by the provisions contained in Chapter X of the Kerala Panchayat Raj Act, 1994 and Chapter X of the Kerala Municipality Act, 1994, as the case may be. The election involved in O.P. No. 13650 of 1996 relates to the Municipal Corporation and the rest of the Writ Petitions relate to election to Panchayats.

2. At the outset, it was argued on behalf of the contesting Respondents that these Writ Petitions are not maintainable in view of the decision of the Division Bench of this Court in Bhargavan v. Majeed 1960 K.L.T. 1262 inasmuch as the orders challenged are purely interlocutory orders passed by Election Tribunals in the main Election Petitions pending before them. In order to decide this question it is essential to examine the ambit and scope of the powers of this Court under Articles 226 and 227, the nature of the interlocutory orders and the true scope of the principles laid down by the Division Bench in the aforesaid case.

3. The Writ Petitions, O.P. Nos. 11280, 11222 and 10853 of 1996 are specifically filed under Article 227 of the Constitution of India invoking the power of superintendence in view of the decision of this Court in Leela v. Pushpam 1996 (2) K.L.T. 350 wherein it is held that the orders of the Munsiffs Court while hearing an election petition under the Panchayat Raj Act are not revisable under Section 115 of the Code of Civil Procedure. In this context what immediately strikes the attention of this Court is the famous observation of Harries, C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee : A.I.R. 1951 Cal. 193 [LQ/CalHC/1950/243] .

Though this Court has a right to interfere with decisions of Courts and Tribunals under its power of superintendence, it appears to me that what right must be exercised most sparingly and only in appropriate cases.

Now let us examine as to how the Supreme Court magnified the extent of this power of superintendence under Article 227 of the Constitution. On behalf of the Constitution Bench of the Supreme Court, S.R. Das, J. in Waryan Singh and Anr. v. Amarnath and Anr. : A.I.R. 1954 S.C. 215 observed thus:

This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee : A.I.R. 1951 Cal. 193 [LQ/CalHC/1950/243] (S.B.) to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting more errors. As rightly pointed out by the Judicial Commissioner in the case before us the lower Courts in refusing to make an order for ejectment acted arbitrarily. The lower Courts realised the legal position but in effect declined to do what was by Section 13(2)(i) incumbent on them to do and thereby refused to exercise jurisdiction vested in them by law. It was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.

In Delhi Judicial Service Association v. State of Gujarat : (1991) 4 S.C.C. 406 the Supreme Court held:

Article 227 confers supervisory jurisdiction on the High Court and in exercise of that power High Court may correct judicial orders of subordinate Courts, in addition to that, the High Court has administrative control over the subordinate Courts.

Thus it is safe to hold that the power of superintendence conferred upon the High Court under Article 227 is not confined to administrative superintendence only but includes the power of judicial revision also even in cases where no appeal or revision lies to the High Court under the ordinary law.

4. The Supreme Court after discussing the decisions in Ganpat Ladha v. Sashikant Vishnu Shinde : A.I.R. 1978 S.C. 955, India Pipe Fitting Co. v. Fakruddin M.A. Baker : A.I.R. 1978 S.C. 45, Mrs. Labhkuwar Bhagweni Shah v. Janardhan Mahadeo Kalan A.I.R. 1983 S.C. 538 and Chandayarkar Sita Ratna Rao v. Ashalata : A.I.R. 1987 S.C. 117 dealing with power of superintendence under Article 227 and Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale : A.I.R. 1960 S.C. 137 a case under Article 226, held in Venkatlal C. Pittie v. Bright Bros. (Pvt.) Ltd. : A.I.R. 1987 S.C. 1939 thus:

But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the facts the absence of clear cut-down reasons where the question depends upon the appreciation of evidence. The High Court should not interfere with a finding within the jurisdiction of the inferior tribunal or Court except where the finding is perverse in law in the sense that no reasonable person properly instructed in law could have come to such a finding or there is misdirection in law or view or fact has been taken in the teeth of preponderance of evidence or the finding is not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction.

From the above it is seen that the Supreme Court has not drawn any difference between the width of exercise of power under Article 226 and Article 227. The principles laid down in Venkatlal G. Pitties case : A.I.R. 1987 S.C. 1939 supra would apply in so far as the exercise of power in both the cases. At the same time the jurisdiction under these two Articles is separate and independent. In this context it is apt to note that the judicial superintendence conferred by Article 227 is not limited by the technical rules which govern the power to issue writ of certiorari under Article 226. Thus the power under Article 226 would be available for exercise when there is an application by the aggrieved party. On the other hand the power under Article 227 may be exercised by the Court suo motu if there are circumstances warranting such action.

5. Let us now examine what actually is an interlocutory order contemplated in the Division Bench decision of this Court in Bhargavans case 1960 K.L.T. 1262 supra. Halsburys Laws of England, Third Edition, Vol. 22 page 744 defines an interlocutory order as this:

An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure (p), or (2) is made after judgment, and merely directs how the declarations of right already given in the final judgment are to be worked out, is termed interlocutory (q). An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.

The Full Bench decision of this Court in K.S. Das v. State of Kerala 1992 (2) K.L.T. 358 (F.B.) said:

...interlocutory orders may mean purely procedural orders and not orders which affect or touch upon rights of parties or matters of moment, though the main case is not disposed of. In that sense, they are not final. But they are interlocutory orders which are not mere orders of a procedural nature, but can be treated as a kind of intermediate orders which affect or touch upon rights of parties or are matters of moment. It all depends upon the context of the words in the Act taken as a whole and the intention of the legislature.

Thus the interlocutory order is one that is passed during the tendency of a proceeding with does not finally determine the proceeding before the Court or the Tribunal, but at the same time it may be conclusive as to the subordinate matter it deals with. This may be akin to pre-trial orders like Mareva Injunction and Anton Piller Orders known to English Civil Justice.

6. Placing reliance on Veluswami v. Raja Nainar : A.I.R. 1959 S.C. 422, A. Sanjeevi Reddy v. G.C. Kondayya : A.I.R. 1960 A.P. 421, Y.B. Charan v. K.T. Mangalmurthi : A.I.R. 1958 Bom 397 [LQ/BomHC/1957/304] , K. Kamaraja Nadar v. Kunju Thevar : A.I.R. 1958 S.C. 687 and Mallappa Basappa v. Basavaraj Ayyappa : A.I.R. 1958 S.C. 698 the Division Bench of this Court in Bhargavans case 1960 K.L.T. 1262 supra held thus:

The aforesaid cases establish the proposition, therefore, that should the decision in the interlocutory order be such as to affect the very root of the case, the powers under Article 226 or 227 may well be exercised. Another exception is that should reversal of the interlocutory order be necessary to prevent extraordinary inconvenience and embarrassment in the conduct of the case, certiorari may be issued.

The above decision arose from a proceeding under Article 226 of the Constitution where an order passed by the Election Tribunal constituted under the Representation of People Act, 1950 rejecting an objection to a witness being examined in the Election Petition before the Tribunal. Here the Court declined to interfere by exercising the discretionary power under Article 226. The same Division Bench reiterated the above rule in C. Achutka Menon v. Election Tribunal, Trichur 1960 K.L.T. 1257. Following this decision a learned Single Judge of this Court, Vaidialingam, J. (as he then was) held in P. Kunjuraman v. V.R. Krishna Iyer 1960 K.L.T. 1267 that interference can be made against the decision on an interlocutory order, if the order goes to the very root of the case or reversal of the order is necessary to prevent extra ordinary inconvenience and embarrassment in the conduct of the case.

7. The reasons envisaged immediately above for interference may be the one pertaining to the maintainability of the Election Petition. The decision on maintainability of a petition is no doubt a matter which goes to the root of the case and if it is allowed to operate it will cause inconvenience and embarrassment in the conduct of the Election Petition. This is a preliminary point which requires to be deeided at the threshold of the proceeding. In administrative law this question has been described as application of the collateral fact doctrine. P.P. Craig in his administrative law, Second Edition, page 242 said:

The most widely accepted theoretical explanation of which issues should be held to go to jurisdiction has been collateral or preliminary or jurisdictional fact doctrine. It has a long historical lineage but the most sophisticated explanation is that given by Diplock, L.J. as he then was. The explanation is more easily understood if broken down into a number of stages.

The author further said:

A tribunal is given power on the existence of certain conditions, there are certain preliminary questions that it must decide before it can proceed to the merits. These include matters such as whether the tribunal was properly constituted and whether the case was of a kind referred to in the statute. The tribunal must make an initial determination on such matters but its decision is not conclusive. If the Court on review believes that the requisite situation spoken of in the statute did not exist then the conclusion reached by the tribunal will be a nullity. Such preliminary questions can involve fact, law or discretion.

8. In order to appreciate interlocutory order on an issue regarding the maintainability it is essential to examine the scope of the main petition wherefrom such orders arose and its trial under the provisions of the Kerala Panchayat Raj Act, 1994. Article 243-O(b) of the Constitution mandates that no election to any panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the legislature of a State. Section 87 of the Kerala Panchayat Raj Act, 1994 which was framed in pursuance of Constitution (Seventy-third Amendment) Act, 1992 reflects the mandate of the said Article. Under Section 89 an election petition may be presented on one or more of the grounds specified in Sections 102 and 103 to the appropriate Court specified in Section 88 within thirty days from the date on which the returned candidate was declared elected. Sub-section (5) of Section 93 ordains that such election petition shall be tried as expeditiously as possible and shall be disposed of within six months from the date on which the election petition is presented to the Court for trial. A similar provision is contained in Sub-section (5) of Section 169 of the Kerala Municipalities Act, 1994. It could be seen from these provisions that there is a clearly specified time- schedule for the trial of election Petitions unlike the ordinary suits filed before the civil Courts. The challenge against the interlocutory orders passed by the Courts while dealing with such petitions will have to be examined with due care and extreme caution because the expeditious trial of the main petition may not be interrupted by any process of this Court. In this context it would be apt to note the following observation of the Supreme Court in K. Kamaraja Nadar v. Kunju Thevar and Ors. : A.I.R 1958 S.C. 687 as reproduced in Inamati Mallappa Basappa v. Desai Basavaraj Ayyappa and Ors. : A.I.R. 1958 S.C. 698.

An election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power.

* * *

An election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also are substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process.

* * *

An election petition is not a suit between two persons, but is a proceeding in which the constituency itself is the principal party interested.

9. In New Piece Goods Bazar Co. Ltd. v. Commissioner of Income Tax A.I.R. 1950 S.C. 165 the Supreme Court held that "It is elementary that the primary duty of a Court is to give effect to the intention of the legislature as expressed in the words used by it and no outside consideration can be called in aid to find that intention." This Court held in Koippally Brothers v. Income Tax Officer 1979 K.L.T. 175 "that statutes have to be construed in a manner promoting the purpose and object of the Act and not too literally so as to defeat the purpose or render the provisions meaningless and otiose." Therefore what is required is a purposive interpretation of the provisions contained in the enactments in question. "The language of the law is inartificial, nevertheless the real purpose of the legislature if that purpose be discernible from its statute will prevail over the literal import of the words employed", so said in Inhabitants of Whiting v. Inhabitants of Lubec (1922) 121 Mc 121.

10. However it was pointed out that what is ultimately involved in this proceeding is the enforcement of remedy by way of judicial review of the orders passed in the interlocutory proceedings. "The power of judicial review is an integral part of our constitutional system and without it there will be no Government of laws and the rule of law would become a teasing illusion and a province of unreality". This is what the Supreme Court said in Minerva Mills Ltd. v. Union of India : A.I.R. 1980 S.C. 1789. Therefore, the remedy of judicial review is the indispensable attribute of enforcement of constitutional rights. That does not however mean the purpose of the legislation can be bye-passed or ignored. What this Court is at present concerned is the maintainability of the main election petitions. The maintainability is a point which goes to the root of the case. However it cannot be said that such a point can be raised at any stage of the proceeding. Because the purpose of the provisions contained in Sub-section (5) of Section 93 would be nullified if it is so allowed. In this context it is apt to recall what the Supreme Court said in K. Kamaraja Nadar v. Kunju Thevar and Ors. : A.I.R 1958 S.C. 687. It said:

If the preliminary objection was not entertained and a decision reached thereupon, further proceedings taken in the Election Petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the second Respondent in suoport of the numerous allegations of corrupt practices attributed by him to the Appellant, his agents or others working on his behalf; examination of a large number of witnesses by or on behalf of the Appellant controverting the allegations made against him; examination of witnesses in support of the recrimination submitted by the Appellant against the second Respondent; and a large number of visits by the Appellant from distant places like Delhi and Bombay to Ranchi resulting in not only heavy expenses and loss of time and diversion of the Appellant from his public duty in the various fields of activity including those in the House of the People. It would mean unnecessary harassment and expenses for the Appellant which could certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the Election Tribunal.

The same result would follow if such preliminary objections are not raised and decided at the initial stage of the proceeding.

11. The purpose of the provisions contained in Section 93(5) of the Kerala Panchayat Raj Act and Section 169(5) of the Kerala Municipalities Act will have to be taken note of by the parties to the litigation and they must be ready to finalise the case within the time-schedule.

In order to bring out the conduct of the contesting parties in this regard this Court can exercise the power of superintendence and scan the proceedings in the main election petition at all stages. When the legislature gives a mandate that the election netitions shall be disposed of within a period of six months from the date on which the election petition was presented, it has got an underlying purpose and object. The parties to the litigation who are coming before this Court challenging the orders passed in interlocutory applications must establish that they were all along vigilant in prosecuting their part of the litigation and there was no delay or latches on their side in taking steps. The process of this Court shall not be allowed to be used for delaying the trial of the election petition. In other words the process of this Court in purported exercise of power under Article 226 or 227, in relation to interlocutory orders shall not pave the way for blocking expeditious and uninterrupted trial of main election petitions except in extraordinary circumstances. In this context it would be profitable to refer what the Supreme Court said in Veluswami v. Raja Nainar : A.I.R. 1959 S.C. 422 at Page 429.

As the question has also been raised as to the propriety of interfering in writ petitions under Article 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon. The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted, but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Article 226. It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Article 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings in fructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, : 1955 2 S.C.R. 428, A.I.R. 1955 S.C. 610. It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under Section 116A, and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. In this view, it would be a proper exercise of discretion under Article 226 to decline to interfere with interlocutory orders.

Placing reliance on the observation of Lord Simonds, L.C. in Senanayake v. Navaratne 1954 A.C. 640 (M), the Supreme Court in Harish Chandra Bajpai and Anr. v. Triloki Singh and Anr. : A.I.R. 1957 S.C. 444 observed:

...public interests equally demand that election disputes should be determined with despatch. That is the reason why a special jurisdiction is created and Tribunals are constituted for the trial of election petitions.

12. As against the decision of this Court in Bhargavans case 1960 K.L.T. 1262 (supra) a Bench decision of Madras High Court in M.A. Muthiah Chettiar v. Sa Ganesan and Anr. : 1958 (1) M.L.J. 110 was cited. There it was held that the order is an interlocutory order and that there is another remedy open by way of appeal would not be a bar to the issue of a writ. While holding so the Court observed to the following effect:

Where therefore, by amendment, a party applying for it seeks to allege a new fact and not merely to explain or clarify a material fact already stated, as a ground for setting aside the election, the same cannot be allowed if the application therefore is made after the period prescribed by Section 81 for filing a petition has elapsed. An order allowing an amendment in such cases would be beyond the jurisdiction of the tribunal and is liable to be quashed by the High Court by a writ of certiorari especially where it is also vitiated by an apparent error.

From the above it is clear that what was involved there was a question of jurisdiction which necessarily goes to the root of the case. The Madras High Court in the above decision has applied the decision of the Supreme Court in Harish Chandra Bajpai and Anr. v. Triloki Singh and Anr. : A.I.R. 1957 S.C. 444. There also the question was related to an interlocutory order permitting an amendment in an election petition. The apex Court in that case observed:

In the present case, having regard to the circumstances stated above, the order of amendment would be open to grave criticism even if it had been made in an ordinary litigation, and in an election matter, it is indefensible. The strongest point in favour of the Respondent is that we should not in special appeal interfere with what is a matter of discretion with the Tribunal. It is not necessary to pursue this matter further, as we are of opinion that the order of amendment dated 28th November 1953 is, for the reasons already stated, beyond the powers of the Tribunal, and therefore must be set aside and the finding based on that amendment that the Appellants had committed the corrupt practice mentioned in Section 123(8) of the Act must be reversed.

What is involved here is also a question of jurisdiction which goes to the root of the case. That being so, I do not think that the decision in Muthiah Chettiars case : 1958 (1) M.L.J. 110 militates against the view taken by the Division Bench of this Court in Bhargavans case 1960 K.L.T. 1262.

13. While examining the correctness of an interlocutory order passed in an election petition applying the principles aforestated, the Court must also draw a distinction between the existence of power and the exercise of power. It cannot be confused that the existence of power and exercise of power is one and same. This Court has always the power under Article 226 and 227 but that does not mean it should exercise the said power when a request is made. The power should be exercised only when the Court finds there are warranting circumstances within the framework of the principles aforesaid. Though every interlocutory order is subject to judicial review under Article 226 and 227 the Court shall at the threshold examine whether such order goes to the very root of the matter or it causes some embarrassment or inconvenience to the parties in the conduct of the cases. Such examination is within the concept of the existence of power and not the exercise of power. Once the Court comes to the conclusion that the order goes to the very root of the case or causes inconvenience or embarrassment in the conduct of the case, then it will be justified in interfering with the orders provided there are warranting reasons for doing so. That is the point where this Court exercises the power conferred on it in setting aside or confirming an interlocutory order.

14. In some of the writ petitions a contention has been advanced that the election petitions involved therein are not maintainable for the reason that the provisions contained in Sections 89(2) and 91(2) of the Panchayat Raj Act, 1994 have not been complied with. It is argued before me that those provisions are mandatory and therefore strict compliance is called for. In order to appreciate this contention, those provisions are extracted hereunder:

Section 89(2): Every election petition shall be accompanied by as many copies thereof as there are Respondents mentioned in the petition and every such copy shall be attested by the Petitioner under his own signature to be a true copy of the petition.

Section 91(2): Any schedule or annexure to the petition shall also be signed by the Petitioner and verified in the same manner as the petition.

Reliance is placed for the position that the above provisions are mandatory, on the decision of the Supreme Court in Sharifud-din v. Abdul Gani Loan : A.I.R. 1980 S.C. 303

15. The distinction between the mandatory and directory provision is well-known and certain. This distinction is well stated in Craies on Statute Law, 6th Edn.

Containing or constituting a command or order; obligatory. The terms mandatory and directory refer to the method by which the legislature sets about attaining its object. When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative (or mandatory); but those which are not essential, and may be disregarded without invalidating the thing to be done, are called directory.

This distinction consists in that the former must be strictly observed while the latter may be substantially complied with. See: H.V. Kamath v. Ahmad Ishaque : A.I.R. 1955 S.C. 233. In Sharifud-dins case : A.I.R. 1980 S.C. 303 supra the Supreme Court observed:

The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deducted from several decisions of Courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word shall while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory.

16. When the provisions contained in Sections 89(2) and 91(2) are read and examined in the backdrop of the legal position stated herein above, there cannot be any doubt as to their mandatory character. A learned Single Judge of this Court in Devaki v. Kaveri Amma 1996 (1) K.L.T. 130 observed that the provision contained in Section 89(2) is mandatory. The said decision was later affirmed by the Division Bench in Kaveri Amma v. Devaki A.I.R. 1996 K.L.J. 845 wherein it has been observed:

A petition filed under Section 89 should comply with all the requirements of that section. If the petition fails to comply with all the requirements of that section, that petition entails dismissal. It cannot be allowed to be withdrawn for enabling the Petitioner to file a proper petition in conformity with the provisions contained in Section 89(2).

In a recent case, Shipra v. Shanti Lal Khoiwat A.I.R. 1996 S.C. 1691 the Supreme Court while dealing with appeals arising from the decisions of the Election Tribunals under the Representation of People Act (43 of 1951) observed:

Therefore, compliance of the statutory requirement is an integral part of the election petition and true copy supplied to the returned candidate should as a sine qua non contain the due verification and attestation by the prescribed authority and certified to be true copy by the election petition in his/her own signature. The principle of substantial compliance cannot be accepted in the fact situation.

Though the provisions contained in Sections 89(2) and 91(2) are strictly to be complied with there are cases where the Tribunals had proceeded with the trial of the cases with an erroneous view that the said provisions are not mandatory. In such cases, the tribunals should be corrected and directed to take fresh decisions in view of the legal position herein before discussed.

17. What remains to be done in this batch of cases is to examine the impugned orders and find out whether any is interference necessary in view of the decisions arrived at herein above.

O.P. No. 12080 of 1996:

Ext. P-3 order passed by the Munsiffs Court allowing an interim application for permission to examine the counterfoils of the used ballot papers of two panchayats is challenged. The allegation of the Petitioner in the election petition is that there was double voting by three voters in two Grama Panchayats. In support of the said allegation P.Ws. 1 and 2 were examined. P.W. 1 has deposed in tune with the averments contained in the petition. P.W. 2 who is the Tahsildar, Kuttanad Taluk and through him Ext. A-3 certificate was marked. In Ext. A-3 certificate it has been stated that three persons whose names and addresses are given in it have got votes in both the Grama Panchayats. In view of the above prima facie case, the learned Munsiff ordered that the counterfoils will be allowed to be examined by the election Petitioner in the presence of the Counsel appearing for the first Respondent therein who is the writ Petitioner. The Supreme Court in M.R. Gopalakrishnan v. Thachady Prabhakaran : 1995 Supp. (2) S.C.C. 101 observed:

The election Petitioner, in order to seek an order of re-count, has to place material and make out a prima facie case on the threshold and before an order of re-count is actually made.

Of course, this direction is made in the case for re-counting. However, the decision of the Supreme Court in Neelalohithadasan Nadar v. George Mascrene 1994 (1) K.L.T. 887 is directly on the question of examination of counterfoils. The observation made by the Supreme Court in this regard pin points that the permission to inspect the counterfoils in order to examine whether there is double voting, is a measure to facilitate the quick trial. It observed:

The commonality of the approach of the parties on the question of double voting must have clearly goaded the Court to adopt such measure to facilitate quick trial. It is the case of the election Petitioner that the Counsel for both the parties inspected the counterfoils on 7th October 1991 in the Registrars room as also on subsequent days, even though there was no written application made and there was no formal written order of the Court.

Since the prima facie case is proved in this case, I am persuaded to confirm Ext. P-3 order impugned in the writ petition. What is involved in this writ petition is no doubt an interlocutory order and the passing of the said order is also justified in the circumstances of the case. The writ petition is accordingly dismissed.

O.P. Nos. 14503 and 14505 of 1996:

In these two writ Petitions the maintainability of the election petitions has been challenged. The question raised in the interlocutory applications is that the provisions contained in Section 89(2) of the Kerala Panchayat Raj Act has not been complied with. Therefore, the said question was decided as a preliminary issue in both cases. However, the Court below rejected those applications on the ground that there is substantial compliance of the provision contained in Section 89(2). From the impugned order it would appear that the Court below, though relied on the decision of the Division Bench in Kaveri Amma v. Smt. Devaki N. Devadiga : 1996 (1) K.L.J. 845, assumed that substantial compliance of the provision would be sufficient. What is required is the strict compliance of the provisions of Section 89(2) as discussed herein before. Thus there is fundamental error in the approach of the Court below in dealing with the question of the maintainability of the election petition. Therefore the appreciation of the entire question is misdirected. There is no doubt that the impugned orders arising out of the interlocutory applications pertain to the root of the case and therefore I am inclined to interfere. Accordingly, the impugned orders are set aside. Consequently, I direct the Munsiff Court to decide the interlocutory applications afresh applying the rule that there shall be strict compliance of the provisions of Section 89(2) of the Act. Since the election petitions are required to be decided expeditiously as observed above, I direct the Court below to decide the interlocutory applications involved in these cases as directed above within a period of one month from the date of receipt of a copy of this judgment.

O.P. No. 11280 of 1996:

Ext. P-1 order rejecting an interlocutory application for amendment of the election petition is challenged in this Original Petition under Article 227 of the Constitution. It was filed alleging that on further enquiries after the filing of the election petition, it was revealed that some other persons had been voted twice, with dishonest intention to take undue advantage for the victory of first Respondent therein. This petition has been filed under Order VI Rule 17 of the Code of Civil Procedure read with Section 93(4) of the Kerala Panchayat Raj Act. By the impugned order, the Court below refused to amend the election petition on the ground that there is no provision in the Act for allowing an amendment unless it is proved that the proposed amendment is, on the ground of corrupt practice as provided in Section 93(4) of the Act. The provisions contained in Section 86(5) of the Representation of People Act and Section 93(5) of the Panchayat Raj Act are in pari materia. The Supreme Court while dealing with a case under the Representation of People Act observed in Sethi Roop Lal v. Malti Thapar : 1994 (2) S.C.C. 579 that exercise of general power under Order VI, Rule 17 of the Code of Civil Procedure stands curtailed by Section 86(5) of the Act when amendment is sought for in respect of any election petition based on corrupt practice. However, in this case both sides admitted that the grounds alleged in the main election petition are not corrupt practice. That being the position, I do not see any error in the impugned order. What is involved is an interlocutory order which does not go to the root of the case. The writ petition is accordingly dismissed. However, this will not preclude the Petitioner from agitating the point in the main election petition at the appropriate stage if it has some relevance in the case.

O.P. Nos. 10853 and 11222 of 1996:

The election Petitioner filed O.P. No. 4 of 1995 before the Munsiffs Court challenging the election of the writ Petitioner on 17th October 1995. After the enquiry, the election petition was posted for orders on 28th March 1996. Thereafter, the writ Petitioner filed I.A. 1162 of 1996 to receive the additional counter. That petition was dismissed by the Munsiff as per order dated 6th April 1996. The said order is challenged in O.P. No. 10853 of 1996. Subsequently, an interim application, I.A. 316/96 was filed before the Munsiff for an order to depute a commissioner for counting the votes polled in the election in Ward No. IV of Koratty Grama Panchayat. That petition was allowed by the Court as per the order dated 10th April 1996. The said order was challenged in O.P. No. 11222 of 1996.

The order passed in I.A. 1162 of 1996 was challenged in C.R.P. No. 918/96 filed under Section 115 of the Code of Civil Procedure. The above revision case along with others came up for consideration before a learned Single Judge of this Court. As observed above, this Court by a common order dated 5th July 1996 in Leela v. Pushpam 1996 (2) K.L.T. 350 held that the orders of the Munsiffs Court while hearing an election petition under the Panchayat Raj Act are not revisable under Section 115 of the Code of Civil Procedure following an earlier decision of the Division Bench of this Court in Beeran v. Rajappan 1980 K.L.T. 210. However, the revision petitions were dismissed by the learned Judge without prejudice to the right of the Petitioners in pursuing other remedies available to them. It was in the aforesaid background, the Petitioner filed O.P. No. 10853 of 1996 under Article 227 of the Constitution seeking to quash the order in I.A. 1162 of 1996 of the Munsiffs Court. The connected O.P. 11222 of 1996 was also filed by the same Petitioner under Article 227 of the constitution seeking to challenge Ext. P-1 order passed by the Munsiff allowing the application, I.A. 316 of 1996 directing the B.D.O. to produce the ballot papers polled in Ward No. IV of Koratty Grama panchayat on or before 25th May 1996.

In the election petition filed by the second Respondent in O.P. No. 10853 of 1996, a counter-affidavit has been filed by the writ Petitioner opposing the claim. The point raised in I.A. 1162/96 was that the writ Petitioner omitted to raise an allegation regarding non-compliance of Section 89(2) of the Kerala Panchayat Raj Act. It is also revealed that the main election petition was posted for evidence twice and the evidence of Petitioner and Respondents was over. It is further seen that in the counter-affidavit or in the evidence of the first Respondent, there was no case regarding the non-compliance of Section 89 1996 (2) K.L.T. 350 of the Act. Even after the evidence a number of postings were given for hearing. Finally, when the main petition was posted for orders on 28th March 1996, the present application for amendment of the counter-affidavit was filed. The learned Munsiff was of the view that there is no bona fides on the part of the writ Petitioner in filing the present I.A. In this context Counsel for the Petitioner submitted that the provisions contained in Section 89(2) is mandatory and therefore non-compliance of the said provisions is fatal. His case is that the impugned order goes to the root of the case and therefore the petition has to be allowed. This being a question relating to the maintainability of the election petition, the party who wants to raise an objection as to the non-compliance of the provisions of Section 89(2), has to raise it at the earliest point of time. Since it is a question pertaining to the very root of the case, it is essential such question not only be raised but also decided at the outset. As pointed out above, this question for the first time came up for consideration before the Court below after the main election petition was posted for orders. This is very fatal to the case of the writ Petitioner. In view of the reasons aforestated, I do not think there is any error in Ext. P-2 order in O.P. No. 10853 of 1996 passed by he Court below and hence no interference is called for. So also Ext. P-1 order passed in O.P. No. 11222 of 996 is purely an interlocutory order which does not go to the root of the case. In view of the principles laid down herein above, no interference is called for. Thus both the writ petitions are dismissed.

O.P. No. 10401 of 1996:

Ext. P-4 order passed by the Court below in Election O.P. No. 27 of 1995 is challenged in this writ petition. The main election petition was filed by the first Respondent under Sections 89, 102 and 103 of the Kerala Panchayat Raj Act, 1994. The main contention advanced by the Petitioner is that the Petitioner in the election petition has not complied with the requirements as contemplated under Sections 89(2) and 91(2) of the Act. I have already held that the provisions contained in Sections 89(2) and 91(2) are mandatory and therefore strict compliance is essential. Counsel for the Petitioner urged that the mandatory requirements contained in the provisions have not been complied with in this case. However, it appears that the Court below proceeded with the interim application on a wrong assumption that even in the case of mandatory provisions substantial compliance would be sufficient. In Sherif-ad-Din v. Abdul Gani Lone : A.I.R. 1980 S.C. 303 the Supreme Court was considering the provisions contained in Section 89(3) of the Jammu and Kashmir Representation of People Act which are in pari materia to the provisions contained in Section 89(2) of the Panchayat Raj Act. There the Supreme Court observed that every copy of the election petition which is intended for service on the Respondents 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 of the petition. The Division Bench of this Court in Kaveri Amma v. Devaki N. Devadiga : 1996 (1) K.L.J. 845said: "Provision contained in Section 89(2) of the Act deals with the form of the petition which is mandatory. If election petition filed before Court is not in conformity with the said form, then that election petition has only to be dismissed without going into the merits or contentions raised therein." In view of the above what is required is strict compliance. The Court below said "there is sufficient compliance with Section 89(2) of the Act". Sufficient compliance or substantial compliance is different from strict compliance as discussed in the paragraphs above. In this context it is apt to recall what the Division Bench said in Kaveri Ammas case 1996 (1) KLT 845 supra. "Provision contained in Section 89(2) is too technical, but technicalities have to be strictly complied with by the Petitioner." Therefore I feel the Court below has not appreciated the question within the correct legal framework. The question should have been decided by the Court below taking a firm view that there must be strict compliance of the provisions of Section 89(2). The maintainability of the main petition is dependent on the ultimate decision on this question and hence it goes to the root of the case. In view of what I said above, I am inclined to set aside Ext. P-4 order and direct the Court below to decide the entire question afresh applying the correct legal position aforestated. At any rate, the decision thereon shall be taken within a period of one month from the date of receipt of a copy of the judgment.