Dr. A. S. ANAND, C. J. I - (1.) -This appeal by special leave is directed against an order dated 18th September, 1996 passed by a learned single Judge of the High Court of Kerala rejecting the application made by the appellant herein seeking dismissal of Election Petition No. 8 of 1996 on various grounds. The brief facts are:
(2.) The appellant (returned candidate) was elected to the Kerala State Legislative Assembly from Priavom Constituency No. 79. While the appellant had secured 51873 votes, respondent No. 1 (election-petitioner) had received 44165 votes. After the result of the election was declared, the first respondent filed Election Petition No. 8 of 1996 challenging the election of the appellant alleging that the election of the appellant stood vitiated by commission of various corrupt practices, as detailed in the Election Petition. The Election Petition was resisted by the appellant and on 29-7-1996 the appellant filed his written objections. Various objections were raised but for the purpose of this appeal we are concerned with the objection raised in paragraph 39 of the written objections to the effect that Annexure-XV supplied to the appellant was not a true copy of Annexure-XV filed with the Election Petition and the election petition was liable to be dismissed on that score alone for non-compliance with the requirements of Section 81(3) of the Representation of the People Act, 1951 (hereinafter 'the Act'). Respondent No. 4 to the Election Petition also raised a preliminary objection on 30th of July, 1996. That objection, however, has no relevance for the present appeal. Respondent No. 1 filed his reply to the written objections on 6-8-1996 in which inter alia, he asserted in paragraph 15 that copy of Annexure-XV served on the appellant was a "true copy" of Annexure-XV filed with the Election Petition and that there was no failure on his part to comply with Section 81(3) of the Act.
(3.) On 6-8-1996, the appellant filed a petition, C.M.P. No. 2903 of 1996, praying that the Election Petition be dismissed for non-compliance with the provisions of Section 81(3) of the Act. The main objection raised in this petition also centered around Annexure-XV, report in the newspaper "Rashtra Deepika". Paragraphs 4 and 5 of C.M.P. No. 2903 of 1996 read thus: "4. I have filed my written statement of objections to the Election Petition on 29-7-1996. I have raised a preliminary objection to the maintainability of the petition under Section 81(3) of the Representation of the People Act. Section 83, clauses (a) and (b) contemplate that an election petition shall contain a concise statement of the materials and also set forth full particulars of any corrupt practice. So whenever there is an allegation of corrupt practice may be contained in a document and the election-petitioner may refer to such document. But when such document should be supplied to the opposite party. It forms an integral part of the election petition. 5. In this case, the petitioner has produced Annexure-XV - a daily newspaper "Rashtra Deepika" to prove one of the corrupt practices. Though a report is mentioned in paragraph 36 of the Election Petition a copy of the report was not served on me. Hence I verified the original petition and found out that the averments in paragraph 36 of the Original Petition and the report in Annexure-XV are entirely different. Non- supply of the report to me is fatal to the maintainability of the Election Petition as Section 81(3) of the Representation of the People Act provides for giving a true copy of the Election Petition to the respondent mandatorily. The copy served on this respondent does not tally with the original Election Petition submitted in the Court. Even the contents of para 36 of the Election Petition do not tally with the statements made in the newspaper report in Rashtra Deepika filed by the petitioner with the Election Petition as filed in Court. As a consequence there is a non-compliance of the requirements provided in Section 81(3) of the R.P. Act which entails dismissal of the Election Petition as mandated by Section 86 of the R. P. Act." ;