IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 OP(C).No. 1639 of 2011(O) ------------------------- EA.54/2011 of I ADDL.DISTRICT COURT, ERNAKULAM .................... PETITIONER ------------------ UMMANI.N.M, AGED ABOUT 68 YEARS, W/O.ABDULRAHIMAN, RESIDING AT THACHIYETHU HOUSE, AYAKKADU KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.C.A.MAJEED SRI.K.H.ASIF RESPONDENT(S): --------------- KUMARI.T.K., AGED 37 YEARS, W/O.EKRAM, RESIDING AT KAVUMKALPUTHENPURA HOUSE, AYAKKADU KARA, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT. ADV. SRI.P.FAZIL FOR R1 SRI.A.C.THOMAS ADHIKARAM FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C).No. 1639 of 2011 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF ORDER OF APPELLATE COURT DTD 25.4.2011 IN I.A.NO.2008 OF 2011 IN ELE.APPEAL NO.54 OF 2011 ON THE FILE OF 1ST ADDL. DISTRICT COURT, ERNAKULAM. TRUE COPY PA TO JUDGE. K.T.SANKARAN, J. ------------------------------ O.P(C)No.1639 OF 2011 ------------------------------ Dated this the 2nd day of June, 2011 JUDGMENT The respondent filed Election O.P.No.16 of 2010 before the Munsiff's Court, Muvattupuzha against the petitioner to declare the election of the petitioner from Ayakkad Ward of Pindimana Grama Panchayat as void. The Munsiff's Court allowed the Election O.P. and declared that the election of the petitioner herein is void under Section.102 (1)(ca) of the Kerala Panchayat Raj Act. 2. The petitioner filed Election Appeal No.54 of 2011 before the District Court, Ernakulam challenging the order of the Munsiff's Court. The petitioner filed I.A.No.2008 of 2011 to stay the operation of the order in the Election O.P. and to restrain the Election Commission from issuing fresh notification pursuant to the order in the Election O.P. The learned District Judge passed an order dated 25.4.2011, which reads as follows: O.P(C)No.1639 OF 2011 2 “Advanced as per order in I.A.2075/11. Petition is to stay the operation of the order under challenge. Heard both sides. In the light of the decision in Padmakumar Vs. Unnikrishnan (2004(1)KLT 1097) the appellant/petitioner is permitted to participate in the meetings and proceedings of the Panchayat but he cannot exercise any voting rights in any such meetings or receive any kind of benefits from the Panchayat as if, an elected candidate, until further orders.” 3. The grievance of the petitioner is that the court below did not grant an interim order restraining the Election Commission from issuing fresh notification. The counsel for the petitioner relied on a decision in Padmakumar v. Unnikrishnan (2004(1)KLT 1097), wherein it was held as follows: “However, it will be open to the appellate authority to pass such orders as it deem fit and appropriate in the facts and circumstances of each case so as to preserve right of the parties. It is also necessary in this connection to take into consideration the stand of the Election Commission, that in the absence of any order passed, the Election Commission will be bound to issue a notification for conducting a bye-election. So, if the Election Commission issues notification for bye-election that will virtually render the appeal itself infructuous. It will be open to an appellate court to consider all such aspects and can even impose restrictions on the right of the elected candidate and also to consider whether he could be permitted to participate in the meetings of the Panchayat. These are only general guidelines to be followed while considering the petition seeking interim relief in an election dispute under appeal." O.P(C)No.1639 OF 2011 3 4. In the facts and circumstances of the case, it is only just and proper to grant the prayer made by the petitioner to modify the order dated 25.4.2011 in I.A.No.2008 of 2011 by allowing the prayer restraining the Election Commission from issuing fresh notification. Accordingly, the Original Petition is allowed. The order dated 25th April, 2011 in I.A.No.2008 of 2011 in Election Appeal No.54 of 2011 on the file of the Court of the District Judge, Ernakulam shall stand modified by allowing the prayer to restrain the Election Commission from issuing fresh notification pursuant to the order in Election O.P.No.16 of 2010, Munsiff's Court, Muvattupuzha. K.T.SANKARAN, JUDGE. cms