IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 MFA.No. 128 of 2008() --------------------- OP(ELE.).473/2005 of DISTRICT JUDGE,TRIVANDRUM .................... APPELLANT(S): PETITIONER ------------------------ MOHANDAS, S/O.RAMAKRISHNA KURUP, RESIDING AT P.P.LAND, THOPPIL, MOONGODE.P.O. OTTOR VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.K.RAVIKUMAR RESPONDENT(S): RESPONDENT ------------------------- 1. ANIL KUMAR, S/O.RAMAN, RESIDING AT THEKKATHIL KULAMATTOM.P.O, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM. ADDL.R2 STATE ELECTION COMMISSION REP. BY ITS SECRETARY, LMA JUNCTION, THIRUVANANTHAPURAM. R2 IS IMPLEADED AS PER ORDER IN IA.NO.2836/08 DTD 4.12.2009 ADV. GOVT.PLEADER SRI. BENNY VARGHESE. SRI. MURALI PURUSHOTHAMAN -SC FOR KSEC THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NOS.2837 & 3072/2008 IN MFA.NO.128/2008 DISMISSED 4.12.2009 SD/= M.N. KRISHNAN, JUDGE. /TRUE COPY/ P.A. TO JDUGE CL M.N. KRISHNAN, J. ........................................... M.FA.No.128 OF 2008 ............................................. Dated this the 4th day of December, 2009 J U D G M E N T This is an appeal preferred against the order of the District Judge, Thiruvananthapuram in OP(Election) No.473/2005. The petitioner therein, who has partly succeeded in the petition, has come up in appeal against the rejection of his prayer to declare him as elected under Section 103 of the Panchayat Raj Act. The election petition was filed challenging the election to Division No.8 of Moongodu of Varkala Panchayath. The petitioner before the court below contested therein as a Communist Party of India (Marxist) candidate. The respondent was a Congress- (I) candidate and he had won the election and it is challenging that election, the principal prayer for setting aside the election is filed. 2. I am not elaborately dealing with that matter for the reason that nobody has challenged that finding regarding declaration of election of the respondent before the lower court which has been declared as void under Section 102(c) A of the Act. : 2 : M.FA.No.128 OF 2008 3. The grievance of the present appellant is that since election of the respondent is declared as void, he being the only other candidate, he has to be declared as elected from the said ward. Under what all circumstances such thing can be done has to be looked into. A reading of Section 103 of the Kerala Panchayat Raj Act would reveal that: “If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Court is of opinion- (a) that in fact the petitioner or such other candidate received majority of the valid votes; or (b) that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes, the Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected”. 4. So far as this case is concerned Section 103 (a) does not arise and the contention is that Section 103(b) would be attracted. Section 103 (b) directly relates to corrupt practices. Under Section 2(viii) 'corrupt practice' means any of the practices specified in Section 120. Section 120 deals : 3 : M.FA.No.128 OF 2008 with corrupt practices - bribery, undue influence, etc. (1)Bribery: (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing- (a) a person to stand or not stand as, or to withdraw or not to withdraw from being a candidate at an election, or (b0 an elector to vote or refrain from voting at an election, or as a reward to- (i) a person for having so stood or not stood, or for having withdrawn or not having withdrawn his candidature; or (ii) an elector for having voted or refrained from voting; (B) the receipt of, or agreement to receive, any gratification, whether as a motive or a reward- (a) by a person for standing or not standing as, or for withdrawing or not withdrawing from being, a candidate; or (b) by any person whosoever for himself or any other person for voting or frefraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or not to withdraw his candidature. Explanation:- For the purposes of this clause the term 'gratification' is not restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does not include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in Section 85.” : 4 : M.FA.No.128 OF 2008 5. The ground on which the election was requested to be declared as void is that the candidate must submit a declaration by an affidavit in the prescribed form along with his nomination regarding the liability due etc., if any, he has to pay to the Government or for the local bodies or to any public institution under the head A. When there is non compliance, it becomes the ground for setting aside the election because he is not competent to conduct the election. It was on that basis the election was declared to be void. So, the ground on which the election has been declared as void is not one coming under Section 120 of the Kerala Panchayat Raj Act or in other words, it does not come within the ambit of the word corrupt practice as envisaged under Section 103 (b) of the Kerala Panchayat Raj Act. When it is so, there is no statutory power vested on a court to declare another candidate who has filed the petition as a successful candidate and therefore, the finding of the learned District Judge on that point is perfectly in accordance with law and it does not call for any interference and therefore, the appeal lacks merit and it is dismissed. : 5 : M.FA.No.128 OF 2008 Communicate a copy of this judgment to the Election Commission and to the concerned Block Panchayat and other authorities as provided under the Kerala Panchayat Raj Act. M.N. KRISHNAN, JUDGE cl