IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 11153 of 2008(C) --------------------------------------- PETITIONER(S): ------------------------- PULKUZHIYIL MOHAMMADKUTTY, S/O. KUNHAYINKUTTY, VAVAD AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. MR.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------------------- 1. POOKKOTTIL SADANANDAN, S/O. PERU, THEKKEEDAKUNIYIL HOUSE, VAVAD AMSOM, DESOM, KOZHIKODE. 2. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. R1 BY ADV.MR.A.RANJITH NARAYANAN R2 BY ADV. MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON 26/11/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.11153/2008 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ELECTION PETITION WHICH IS NUMBERED AS O.P.NO.18/2007 ON THE MUNSIFF COURT II, KOZHIKODE DTD. 22/02/2007. P2: COPY OF THE ORDER DTD. 27/03/2008 OF THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.11153 of 2008-C = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of November, 2009. JUDGMENT “CR” 1.The petitioner lost to the first respondent in the election to the Koduvally Grama Panchayat from Ward No.2. He filed Ext.P1 petition before the competent court challenging that election. While so, at the instance of another person, the Kerala State Election Commission declared that the first respondent member is disqualified in terms of the provisions of Section 35(1)(q) read with Section 159 of the Kerala Panchayat Raj Act, 1994, for short, the “Act”. That decision has been confirmed by this Court today. 2.In the wake of the disqualification incurred by the first respondent and the declaration in that regard by the Commission, the petitioner apprehends that there will be a by-election. He WPC11153/08 -: 2 :- pleads is that the main ground in his election petition Ext.P1 is allegation of double voting. He accordingly, seeks an order directing the Election Commission defer the by-election until the disposal of Ext.P1 election petition filed by the petitioner since he has sought for an order therein that he be declared as elected. 3.Chapter X of the Act relates to disputes regarding election. Section 87 therein provides that no election shall be called in question except by an election petition presented in accordance with the provisions of that Chapter. Section 102 provides the grounds for declaring election to be void and Section 103 provides grounds on which a candidate other than the returned candidate may be declared to have been elected. Sections 89 to 92 provide the jurisdiction and requirements to be complied with regarding joinder of parties, contents of petition etc. Sections 93 to 99 regulate the trial of election petitions and Sections 100 and WPC11153/08 -: 3 :- 101 provide for the decision of the courts and other orders to be made by the court. Ultimately, Section 107(1) categorically states that an order under Section 100 or Section 101 shall take effect as soon as it is pronounced by the court. Sub section 2 of Section 107 saves all proceedings in which the member whose election is declared as invalid had participated, from invalidation on that ground. An order declaring the election as void takes effect as soon as it is pronounced. This is the effect of sub-section 1 of Section 107. The continued trial of the election petition against a member who has since become disqualified, cannot be insisted upon since the elected member, even before the election petition si decided, has ceased to be a member by the operation of Section 35(1) of the Act and the decision declaring the election of the returned candidate to be void can take effect only from the date on which the court orders so, this being the effect of Sections 100 and 107(1). WPC11153/08 -: 4 :- For the aforesaid reasons, the petitioner is not entitled to the relief sought for. The writ petition fails and is accordingly dismissed. THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/2511