IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 CRP.No. 574 of 2009() --------------------- AS.89/2007 of D.C.& SESSIONS COURT,THODUPUZHA EP.15/2005 of MUNI-MAGI COURT, DEVIKULAM .................... REVN. PETITIONER(S)/PETITIONER/APPELLANT/IST RESPONDENT -------------------------------------------------------- SHAJI MATHEW, S/O.MATHEW, AGED 38 YEARS, RESIDING AT THEKKUMKOOTTATHIL HOUSE, THALUMKANDAM KARA, MANKULAM VILLAGE, DEVIKULAM TALUK. BY ADV. SRI.K.GOPALAKRISHNA KURUP SMT.K.DEEPA (PAYYANUR) RESPONDENT(S)/RESPONDENTS/PETITIONER AND THE 2ND RESPONDENT: -------------------------------------- 1. THOMAS CHACKO, AGED 48 YEARS, S/O.CHACKO, RESIDING AT PULICKAL HOUSE, THALUMKANDAM KARA, MANKULAM VILLAGE, DEVIKULAM TALUK. 2. JOSEPH JOSEPH, S/O.JOSEPH, RESIDING AT ELAMPURAYIDAM HOUSE, MANKULAM VILLAGE, DEVIKULAM TALUK. ADV. SRI.JOICE GEORGE FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON 10/03/2010 PASSED THE FOLLOWING: ORDER IN I.A.NO.3179/2009 IN C.R.P.NO.574/2009 CLOSED. 10.03.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.574 OF 2009 () ----------------------------------- Dated this the 10th day of March, 2010 O R D E R Revision petitioner is the returned candidate elected from Ward No.VIII of Mankulam Panchayat in the general election held on 24.9.2005. His election was impeached by the 1st respondent, one among the defeated candidates by filing Election Petition.No.15 of 2005 before the Munsiff Court, Devikulam on the ground he was disqualified to contest the election as he was a defaulter with dues outstanding to the Government as on the date of filing of his nomination, and that revenue recovery proceedings for arrears for the amount due were then pending against him. Nomination paper of the revision petitioner was improperly accepted despite the objection raised before the returning officer was the case of the 1st respondent/the petitioner in the election petition. Since the revision petitioner was a defaulter, he was disqualified to contest the election, and as such, his election is liable to be declared void and set aside was the case CRP.574/09 2 presented in the election petition. The revision petitioner/the 1st respondent in the election petition while admitting that he had availed a loan from Kerala State Backward Development Corporation Limited contended that he was not a defaulter of any revenue arrears due to the Government. The amount due to the Corporation was not an amount due to the Government or Panchayat was his case to contend that no disqualification would visit him for contesting the election as a member of the Panchayat. He further contended that the Corporation had issued him a letter granting him time for payment of the dues and that was in force when he filed his nomination and contested the election. The learned Munsiff, on the materials produced and hearing the counsel on both sides, concluded that the revision petitioner has not suffered any disqualification since the dues from him to the Kerala State Backward Development Corporation Limited could not be considered as dues to the State Government or to the Panchayat. After holding so, for the reason that he had suppressed material particulars in Form 2A application furnished with his nomination paper, in not disclosing his dues CRP.574/09 3 towards the Kerala State Backward Development Corporation Limited, a public sector undertaking, it was held that his election was void on the ground covered under Section 102 (1) (ca) of the Panchayat Raj Act. Concluding so, the learned Munsiff declared the election of the revision petitioner as void, and set aside his election. Challenge raised by the returned candidate preferring an appeal as A.S.No.89 of 2007 before the District Judge, Thodupuzha impeaching the order of the learned Munsiff was negatived by the learned District Judge concurring with the decision of the court below that he had suppressed materials facts in the declaration filed with the nomination paper, and, therefore, his election was rightly declared void. Concurrent decision of the two courts below, as indicated above, is challenged in the revision by the returned candidate. 2. The learned counsel for the revision petitioner inviting my attention to the allegations raised in the petition contended that other than the allegation imputing disqualification against the returned candidate under Section CRP.574/09 4 34 (1) (j) of the Panchayat Raj Act as being a defaulter against whom revenue recovery proceedings are pending, there was no case even impliedly that Form 2A submitted by the returned candidate was a fake in suppressing of material facts or furnishing incorrect or false statements in answer to the various details to be filled up under that Form. The counsel read over to me paragraph 5 of the election petition to emphasise that there was no allegation imputing that Form 2A submitted by the petitioner was a fake or that he had violated Section 52 (1A) of the Panchayat Raj Act rendering his election void under Section 102 (1) (ca) of the above Act. When there was no case from the petitioner in the election petition or any allegation as indicated above, it is submitted, the court below went wrong in raising a point on that question and deciding it against the petitioner on the basis of the materials tendered in the case. The learned counsel further submitted that the learned Munsiff had raised a point on that question as an additional point after recording the evidence as if such a question was raised as a specific ground by the petitioner in the election petition, which, in fact, was not CRP.574/09 5 correct. The learned District judge in appeal has not considered the lack of pleading, and the non-raising of any case in the election petition that Form 2A furnished by the returned candidate is a fake, according to the counsel, while upholding the order of the learned Munsiff setting aside the election. The learned counsel for the revision petitioner submitted that the order of the learned Munsiff as confirmed by the learned District Judge is liable to be set aside invoking the revisional jurisdiction of this Court. The learned counsel for the 1st respondent/petitioner in the election petition contended that both the inferior courts after meticulous consideration of the materials produced have rightly and correctly come to the conclusion that in suppressing the material particulars of the loan due to a public sector undertaking in Form 2A application, the petitioner had violated the mandate under Section 52 (1A) of the Panchayat Raj Act, and on that ground, his election was to be declared void under Section 102 (1) (ca) of the above Act. In the petition, apart from raising allegations under Section 34 (1) (j) of the Panchayat Raj Act imputing disqualification against the CRP.574/09 6 petitioner in view of the arrears due and revenue recovery proceedings pending against him to the Kerala State Backward Development Corporation Limited, it was specifically imputed, according to the counsel, that his election was liable to be set aside under Section 102 (1) (ca) of the Panchayat Raj Act. That being so, according to the counsel, the concurrent decision rendered by the courts below that having suppressed material particulars of the amount due to the public sector undertaking the Form 2A application furnished by the returned candidate was a fake, and, therefore, his election was liable to be declared as void and set aside, does not warrant any interference. 3. I have considered the rival submissions made by the counsel with reference to the order passed by the learned Munsiff and judgment rendered by the learned District Judge confirming that order in appeal. Petitioner in the election petition has impeached the election of the returned candidate/the revision petitioner on the ground that he was a defaulter to a Corporation and revenue recovery proceedings CRP.574/09 7 were pending against him in respect of such dues when he filed his nomination to contest the election. Disqualification was imputed against the petitioner by raising such an allegation under Section 34 (1) (j) of the Panchayat Raj Act, which reads thus: 34. Disqualification of candidates:- (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, if he- ((a) to (i) are not relevant and hence omitted) (j) is in arrears of any kind due by him to the Government or the Panchayat concerned (otherwise than in a fiduciary capacity) upto and inclusive of the previous year in respect of which a bill or notice has been duly served upon him and the time, if any, specified therein for payment has expired; or Both the courts have found on the basis of the materials produced that the amount due from the petitioner to the Kerala State Backward Development Corporation Limited cannot be considered as dues from him to the Government or the Panchayat inviting a disqualification under Section 34 (1) (j) of the Panchayat Raj Act. That concurrent finding entered CRP.574/09 8 by both the courts is conclusive and final and in the present revision, no enquiry thereof is called for. In the election petition, the petitioner has imputed that there was suppression of material facts at the time of filing of nomination by the returned candidate was the view taken by the learned Munsiff to raise an additional point whether the election of the returned candidate “is vitiated for violation under Section 52 (1A) and 102 (1) (ca) of the Panchayat Raj Act”. Mere allegation that the returned candidate has suppressed the material facts at the time of filing of his nomination is sufficient to raise such an additional point during the course of the election petition appears to be the view taken by the learned Munsiff. In fact, to challenge the election of a returned candidate on a ground covered by Section 102 (1) (ca) of the Panchayat Raj Act, there must be specific allegation that Form 2A furnished by him with his nomination paper is a 'fake'; furnishing specific particulars why it is so. Without providing an opportunity to the returned candidate to meet such a case by raising necessary allegations in the pleadings, there cannot be any adjudication CRP.574/09 9 of that question. In the context, it is to be noted that it is not the absence of furnishing details or making of incorrect statement in Form 2A filed with the nomination, which would render it fake, but, whether non-furnishing of the details or wrong statement made would infringe Section 52 (1A) of the Panchayat Raj Act rendering it as a fake. That question has to be analysed with respect to the pleadings and evidence in the case. When no specific case on that ground has been raised in the petition other than a mere allegation that there was some suppression of material facts at the time of filing of the nomination paper, it cannot be contended for a moment that a case had been canvassed that Form 2A furnished with the nomination paper by the returned candidate was imputed as fake to declare his election as void on the ground under Section 102 (1) (ca) of the Panchayat Raj act. The above ground under that Section reads thus: (ca) that the details furnished by the elected candidate under sub section (1A) of section 52 were fake. CRP.574/09 10 Whether an omission to furnish the details in that Form would render it as a fake is a larger question to be considered and that arises for consideration only if a specific case on that ground is set up in the pleading and also evidence is let in to prove such a ground. In the present case, as rightly contended by the learned counsel for the revision petitioner (returned candidate), no ground was set up in the election petition canvassing a case that Form 2A furnished by the returned candidate with his nomination paper was a fake nor that his election was liable to be declared void on the ground under Section 102 (1) (ca) of the Panchayat Raj Act. When no such case has been imputed in the election petition and no opportunity provided to the returned candidate to meet such a case impeaching his election, the additional point raised after the evidence was over by the learned Munsiff as to whether his election is liable to be declared void on the ground under Section 102 (1) (ca) of the Panchayat Raj Act and a finding entered upholding that ground on the materials available in the case was an irregular exercise of jurisdiction and it cannot be sustained. CRP.574/09 11 4. The appellate court, it is seen, has approved the finding of the learned Munsiff after verifying Ext.X2 (a) (Form 2A) filed by the returned candidate with Ext.X1 file relating to the dues of the above candidate to the Kerala State Backward Development Corporation. The learned District Judge, after such verification, concluded that there was wilful suppression of material facts in Form 2A which render the election of the candidate void. The issues were recast, according to the appellate court, on specific pleadings in the case, and the parties knew what was the grievance of the election petitioner and what was the evidence adduced. The finding made and the views expressed by the learned District Judge are factually and also legally incorrect. There was no pleading nor even any allegation impeaching that Form 2A furnished by the returned candidate with the nomination paper was a fake, but only a vague allegation that the nomination was furnished suppressing material facts with respect to the amount due to the Corporation and the revenue recovery proceedings relating to such dues. That allegation is not sufficient to hold CRP.574/09 12 that a case was set up impeaching the election on the ground that Form 2A furnished was 'fake' for declaring the election of the returned candidate as void under Section 102 (1) (ca) of the Panchayat Raj Act. In this context, it may be profitable to take note the distinction between the grounds for declaring an election to be void under Section 102 (1) (a) (b) and (ca) as distinct from clause (d) of that section. Section 102 (1) of the Act reads thus: 102. Grounds for declaring election to be void:- (1) Subject to the provisions of sub- section (2) if the Court is of opinion- (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improperly rejected; or (ca) that the details furnished by the elected candidate under sub-section (1A) of Section 52 were fake; or CRP.574/09 13 (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent; or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void; or (iv) by any non-compliance with the provisions of this Act or of any rules or orders made thereunder, the Court shall declare that the election of the returned candidate to be void. In respect of the grounds under Section 102 (1) (a) (b) (c) and (ca) on establishing any of the grounds thereunder, the election is liable to be declared void, where as in the case of clause (d) under sub section (1) of Section 102 on any of the grounds specified thereunder, it must be further shown over and above proving any such ground, 'the result of the election in so far as it concerns a returned candidate has been materially affected' to declare his election as void. So much CRP.574/09 14 so, on the allegation imputed in the election petition that there was material suppression on the part of the returned candidate in not furnishing the details of the dues from him to the Corporation and also of the revenue recovery proceedings at best, it would fall only under Section 102 (1) (a) or 102 (1) (d) (i) or (iv) of the Act and it was not a case falling under Section 102 (1) (ca) of the Panchayat Raj Act that the details furnished by the elected candidate under sub section (1) of Section 52 were 'fake' or, in other wards, Form 2A furnished by him with the nomination paper was a fake. 5. On the materials produced where it has been found that the disqualification imputed against the returned candidate under Section 34 (1) (j) of the Panchayat Raj Act has no basis, the disqualification imputed against him of filing the nomination suppressing material facts, and contesting the election, is rendered unworthy of any merit. Any omission to state details of the dues in Form 2A furnished with the nomination paper to be set up as a challenge against the election of a returned candidate must be pleaded with specific CRP.574/09 15 particulars and also proved with sufficient materials that in omitting to furnish such details, the Form 2A submitted by him was a 'fake'. Petitioner had no such case in his election petition but only a case of disqualification under Section 34 (1) (j) of the Panchayat Raj Act and suppression of facts relating to that disqualification at the time of furnishing the nomination. Both the courts below have gone wrong in concluding that the election of the petitioner as the returned candidate has to be declared void on the ground under Section 102 (1) (ca) of the Panchayat Raj Act. The order of the learned Munsiff as confirmed by the learned District Judge is liable to be set aside, and I do so. Setting aside the order of the learned Munsiff as confirmed by the learned District Judge, the revision is allowed. Election petition filed by the 1st respondent shall stand dismissed. S.S.SATHEESACHANDRAN JUDGE prp CRP.574/09 16