IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH JULY 2008 / 2ND SRAVANA 1930 WP(C).No. 17892 of 2007(E) -------------------------- I.A.NO.13/2006 IN OPEP.13/2005 of MUNI-MAGI.COURT,PATTAMBI .................... PETITIONER: -------------------- C.K.SAITHALI, S/O.SAITHUTTY, AGED 48 YEARS, CHEENAMKUNNATH HOUSE, MARUTHUR PO, OTTAPALAM TALUK. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.R.JAYACHANDRAN RESPONDENTS: ------------------------- 1. MR M.R.JAYASANKAR, AGED 40 YEARS, S/O.M.R.WARRIER, RESIDING AT KAIVALYAM, P.O.KALLADIPATTA, ONGALLUR GRAMA PANCHAYATH, OTTAPPALAM TALUK - 679 313. 2. MR. VENUGOPALAN, AGED ABOUT 38 YEARS, S/O.GOPALAN NAIR, VELLOPPULLI PUTHEN VEEDU, MARUTHUR P.O., OTTAPALAM TALUK. 3. THE RETURNING OFFICER FOR ELECTIONS TO THE ONGALLUR GRAMA PANCHAYAT (AGRICULTURAL OFFICER, KRISHI BHAVAN, ONGALLUR, KALLADIPATTA PO IN OTTAPALAM TALUK). 4. THE ELECTORAL REGISTRATION OFFICER, SECRETARY, ONGALLUR GRAMA PANCHAYATH. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R3&4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.17892/2007 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ELECTION PETITION NO.13 OF 2005 FILED BY THE FIRST RESPONDENT BEFORE THE MUNSIFF MAGISTRATE, PATTAMBI. EXT.P2: COPY OF THE PRELIMINARY OBJECTION FILED BY THE PETITIONER IN ELECTION O.P. 13 OF 2005. EXT.P3: COPY OF I.A.NO.13/2005 IN ELECTION O P 13 OF 2005 FILED BY THE PETITIONER. EXT.P4: COPY OF THE ORDER DTD. 12/03/2007 IN I.A.NO.13 OF 2006 IN ELECTION PETN.NO.13 OF 2005 ON THE FILE OF THE MUNSIFF MAGISTRATE, PATTAMBI. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.17892 of 2007 ------------------------------- Dated this the 24th July, 2008. J U D G M E N T Petitioner is the elected candidate in Ward No.20 of Ongallur Grama Panchayat. First respondent filed Election Petition No.13 of 2005 before Munsiff Magistrate Court, Pattambi, to set aside the election of the petitioner. Petitioner filed Ext.P3 petition to dismiss the election petition accepting the preliminary objection. In Ext.P2 preliminary objection filed by the petitioner, it was contended that the election petition is not maintainable as it is not filed in accordance with the relevant provisions of the Kerala Panchayat Raj Act (for short ‘the Act’). Under Ext.P4 order, learned Munsiff dismissed the application holding that election petition can be dismissed only after recording the evidence. This petition is filed under Article 227 of the Constitution of India to quash Ext.P4 order. 2. The learned counsel appearing for the petitioner was heard. Though notice was served on the first respondent, the election petitioner, he did not appear. W.P.(C) No.17892 of 2007 2 3. Under Ext.P2 objection, petitioner specifically contended that the election can be declared void only on one or more of the specific grounds provided under Section 102 of the Act, and the election petition does not contain any such grounds, and, therefore, election petition is to be dismissed. It was argued that d the learned Munsiff did not consider the objection and dismissed the petition under Ext.P4 order, without applying his mind. On hearing the learned counsel, and on going through Ext.P4 order, I find force in the submission. 4. Section 102 of the Act provides the grounds for declaring the election to be void. An election could be declared void only on any of the grounds provided under clause (a), clause (b), clause (c), clause (ca) or clause (d) of sub-section (1) of Section 102 of the Act, subject to the provisions of sub-section (2) therein. Section 87 of the Act provides for an election petition. Under the said section, no election can be called in question except by an election petition presented in accordance with the provisions under Chapter X. Sub section (1) of Section 89 of the Act provides that an election petition calling in question any election can be presented on one or more of the W.P.(C) No.17892 of 2007 3 grounds specified in Sections 102 or 103, to the appropriate Court as specified in Section 88, by any candidate at such election or by any elector within 30 days from the date on which the returned candidate was declared elected. 5. Section 91 of the Act provides the contents of an election petition. Sub section (1) of Section 93 of the Act provides for dismissal of an election on preliminary grounds. Under sub-section (1), an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 115 shall be dismissed as provided thereunder. Therefore, if an election petition is filed not in conformity with Section 89 of the Act, it is liable to be dismissed at the threshold, as provided under sub section (1) of Section 93 of the Act. Under sub section (1) of Section 89 of the Act, an election petition to set aside election can be filed only on one or more of the grounds specified in Sections 102 and 103 of the Act. It is the specific case of the petitioner in Ext.P2 objection that the grounds alleged in the election petition to set aside the election are not any of the grounds provided under Sections 102 or 103 of the Act, and, therefore, the petition is not maintainable. W.P.(C) No.17892 of 2007 4 6. Unfortunately, learned Munsiff did not consider this aspect and dismissed the petition under Ext.P4 order. Hence, Ext.P4 order is quashed. Learned Munsiff is directed to reconsider the question and pass appropriate orders, in accordance with law. Learned Munsiff shall consider whether the petition is liable to be dismissed on any of the grounds, as provided under Section 93(1) of the Kerala Panchayat Raj Act. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.