IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 WP(C).No. 35398 of 2007(L) ----------------------------------- OPEP.34/2005 of MUNSIFF COURT, MANJERI .................... PETITIONER: ----------------- KOOVAKKADAN UBAID, S/O.MOOSAKKUTTY, PULLANCHERI P.O., MANJERI, MALAPPURAM DISTRICT. BY ADVS. SRI.M.K.DAMODARAN (SR.) SRI.P.K.VIJAYAMOHANAN SRI.GILBERT GEORGE CORREYA RESPONDENTS: --------------------- 1. ABDULLA KOOLIYODAN, S/O.HASSAN, PULLANCHERI P.O., MANJERI, ERNAD TALUK, MALAPPURAM DISTRICT. 2. ERIKKUNNAN ABDUL MAJEED, S/O.MUHAMMED, PAYYANAD, PULLANCHERI P.O., MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.K.HARILAL FOR R.1 SRI.R.GOPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 35398 OF 2007 ------------------------------------------ Dated this the 17th day of July, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P11 and P13 orders passed by the learned Munsiff, Manjeri in two applications. Ext.P11 order was passed in I.A. 1038 of 2007, an application to decide the maintainability of the election petition as a preliminary issue. It was dismissed by the learned Munsiff as the application filed for amendment of the election petition to cure the defects in the election petition was allowed. Ext.P13 order is passed in another similar petition filed to decide the maintainability of the election petition. 2. Learned senior counsel appearing for petitioner and the learned counsel appearing for first respondent were heard. 3. Learned counsel appearing for respondent relying on the Division Bench decision of this Court in Aisha Potty v. Returning Officer (2001(3) KLT 867) pointed out that no petition under Rule 227 of Constitution of India will lie challenging the order passed by the Munsiff in an election WPC35398/07 2 petition. 4. As there was a conflicting decision on the question whether a revision will lie under Section 115 of Code of Civil Procedure or a petition will lie under Article 226 and 227 of Constitution of India, in view of the conflicting decisions in Leela v. Pushpan (1996(2)KLT 350, Saraswathi v. Kamala (1997 (1)KLT 855), and in Bindu Vijayakumaran Nair v. Bindu Rajappan (2001(2) KLJ 280). That question was referred to the Division Bench. That Division Bench answered the reference finding that the Court trying an election petition under Section 88 of Kerala Panchayat Raj Act is a Court subordinate to the High Court and therefore a petition under Section 115 of the Code of Civil Procedure will lie and no petition under Articles 226 and 227 of Constitution of India will lie in view of Article 243-O of the Constitution. In view of the Division Bench decision it can only be found that the writ petition is not maintainable. 5. Apart from that the maintainability of the writ petition I do not find any illegality in the orders passed by the learned Munsiff. The election petition as well as the amendment petition are challenged on the ground of non compliance of the WPC35398/07 3 provisions of Section 167(1)(c) of the Kerala Muncipalities Act. It is based on the fact that details regarding the corrupt practice are not pleaded. The election petition shows that though the word corrupt practice is used, election was not challenged on the ground of corrupt practice. It was challenged only on the ground of double voting. In such circumstances, non compliance of the provisions of Section 167 of Kerala Muncipalities Act is not at all material. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-