IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 CRP.No. 361 of 2008() --------------------- AS.63/2006 of D.C. & SESSIONS COURT,KOLLAM OPEL.10/2005 of MUNSIFF COURT, KOTTARAKKARA .................... REVN. PETITIONER(S)/APPELLANT: --------------------- SOMASEKHARAN NAIR,AGEED 38, S/O. GOPALAN NAIR, RESIDING AT AREEKKUDIYIL VEEDU VENDAR MURI, PUTHOOR VILLAGE BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S)/RESPONDENTS: --------------- 1. C.K.DIVAKARAN PILLAI,AGED 66, S/O. KESAVA PILLAI, RESIDING AT CHANDRA BHAVANAM, VENDAR POST, VENDAR MURI, PUTHOOR VILLAGE,KOTTARAKKARA. 2. GOPINATHAN PILLAI, AGED 58, S/O. VELAYUDHA KURUP, RESIDING AT USHA BHAVANAM VENDAR POST, VENDAR MURI, PUTHOOR VILLAGE, KOTTARAKKARA. 3. LIBU, AGED 32, S/O. HEMACHANDRAN, RESIDING AT LAL BHAVANAM,VENDAR POST, VENDAR MURI, PUTHOOR VILLAGE, KOTTARAKKARA. 4. PRAKASH KUMAR, AGED 36, S/O. PRABHAKARAN PILLAI, RESIDING AT GEETHA BHAVANAM, VENDAR POST, VENDAR MURI PUTHOOR VILLAGE, KOTTARAKKARA. 5. THE RETURNING OFFICER, KULAKKADA GRAMA PANCHAYATH THE ASST. REGISTRAR (AUDIT) CO-OPERATIVE DEPARTMENT, KOTTARAKKARA CRP.361/08 6. THE STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM. ADV. SRI.PREMCHAND R.NAIR FOR R1 GOVERNMENT PLEADER SRI.SHYSON P. MANGUZHA FOR R5 & 6 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON 08/03/2010 PASSED THE FOLLOWING: ORDER IN I.A.NO.996/2008 IN CRP.NO.361/2008 DISMISSED. 8.3.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.361 OF 2008 () ----------------------------------- Dated this the 8th day of March, 2010 O R D E R Revision petitioner is the returned candidate elected from Ward No.II of Kulakkada Grama Panchayat in the general election held on 24.9.2005. His election was impeached by the 1st respondent, one among the candidates who contested the election. Respondents 2 to 4 were the other candidates who contested the election from that Ward. Petitioner had secured 667 votes, and his nearest rival, the 1st respondent (petitioner in the election petition), got only 267 votes. Election of the petitioner as the returned candidate was challenged by the 1st respondent filing an election petition as O.P.(Ele.).No.10 of 2005 on the ground that he was a defaulter in respect of a loan due to the bank and revenue recovery proceedings were pending against him when he submitted his nomination to contest in the election. His election was also challenged on the ground that he was the Convener of a CRP.361/08 2 Beneficiary Committee formed in Kulakkada Grama Panchayat, which was selected as a nodal constituency for implementing a project of the State Government and Soil Conservation Department. As a Convener, he had entered into a contract for the implementation of the project, and amounts were received by him for the project. Since he held a contract under the State Government, at the time when he submitted his nomination, he was disqualified to contest the election under Section 34 (1) (g) of the Panchayat Raj Act, was the case of the petitioner in the election petition. There was also an allegation that in the Form 2A application submitted along with his nomination paper, there was no disclosure of the outstanding liability with the bank from which he had availed loan and also that he was a defaulter to such bank. Revision petitioner resisted the petition disputing the allegations raised as baseless. He contended that he was not a defaulter to the bank as imputed and as a Convener to the Beneficiary Committee, he only supervised the work implemented for the project, for which, he was not entitled to any remuneration. His nomination did not suffer from any legal or factual CRP.361/08 3 infirmity was his contention. The other respondents, who had been impleaded as the candidates contested in the election from the Ward, all of them, remained ex parte. 2. Petitioner in the election petition examined three witnesses as PWs.1 to 3. No evidence was let in by the 1st respondent/revision petitioner. Exts.X1 to X4 were marked as court exhibits. The learned Munsiff, on the materials placed, after hearing both sides, concluded that the revision petitioner/returned candidate was disqualified to contest the election since he was a defaulter to a public sector bank, and, thus, suffered the disqualification covered by Section 34 (1) (j) of the Panchayat Raj Act. It was also held that as a Convener of the Beneficiary Committee formed in the Panchayat for implementation of a project with funds advanced by the Government and Soil conservation Department and in view of the subsisting contract entered by the revision petitioner with the Government for implementation of that project, he was disqualified to contest the election. It was also held that in having not furnished the arrears of the amount outstanding CRP.361/08 4 from the revision petitioner to the Bank in the Form 2A application filed with his nomination paper, he had violated Section 52 (1A) of the Panchayat Raj Act, and on that count also, his election was liable to be set aside. On such conclusions formed, the learned Munsiff allowed the election petition setting aside the election of the revision petitioner from Ward No.II of the Kulakkada Grama Panchayat. Appeal preferred against the decision of the learned Munsiff as A.S.No.63 of 2006 before the District Court, Kollam was unsuccessful as the learned District Judge on reappreciating the materials, dismissed the appeal confirming the setting aside of the election. Concurrent decision rendered by two courts below are challenged in the revision. 3. I heard the counsel on both sides. The learned counsel for the revision petitioner assailed the orders of the courts below contending that he was not a defaulter to the bank when he filed the nomination and contested the election. It is submitted that though he had availed a loan from the bank and revenue recovery proceedings were initiated for CRP.361/08 5 realisation of that debt, such proceedings had been stayed by the Government at the time when he submitted his nomination. It is further contended that the contract entered as a Convener of a Beneficiary Committee for implementation of a project would not invite any disqualification to contest the election as covered by Section 34 (1) (g) of the Panchayat Raj Act. He had stated in Form 2A about the loan transaction with the bank but not the arrears due on such loan, at the most, is only an omission which cannot be considered as decisive to conclude that there was material suppression in Form 2A rendering the nomination void. On the other hand, the learned counsel appearing for the 1st respondent/petitioner in the election petition contended that the concurrent findings by both the courts below holding that the revision petitioner/returned candidate was disqualified as being a defaulter under Section 34 (1) (g) and 34 (1) (j) of the Panchayat Raj Act and also that the Form 2A furnished by him with his nomination was a fake, and, therefore, order setting aside his election does not call for any interference in exercise of the revisional jurisdiction. CRP.361/08 6 4. I have considered the rival submissions made by the counsel with reference to the order passed by the learned Munsiff and also the judgment rendered by the learned District Judge confirming the decision of the former setting aside the election of the revision petitioner holding that he was disqualified to contest the election and that there was violation of Section 52 (1A) of the Panchayat Raj Act in the furnishing of Form 2A application with the nomination paper. Perusing the order passed by the learned Munsiff, it is seen that the disqualification imputed against the revision petitioner in the election petition on the grounds under Section 34 (1) (g) and 34 (1) (j) of the Panchayat Raj Act, both of them, and also infringement of Section 52 (1A) of the above Act in furnishing the particulars in Form 2A filed with the nomination paper as alleged by the revision petitioner were found established by the materials tendered in the case, and so much so, the election of the petitioner as a member to the Panchayat was set aside as void. The learned District Judge, after reappreciating the materials, it is seen, upholding the CRP.361/08 7 finding that there was material suppression in furnishing of the particulars in Form 2A application filed by the revision petitioner with his nomination paper and that Form 2A was a fake, concluded that it was unnecessary to go into the questions raised regarding the disqualification imputed under Section 34 (1) (g) and 34 (1) (j) of the Panchayat Raj Act, which too had been found established by the learned Munsiff to set aside his election. Though the learned District Judge has adverted to the allegations imputed and also referred to the provisions relating to the disqualification raised under Section 34 (1) (g) and 34 (1) (j) of the Panchayat Raj Act against the revision petitioner, in view of the conclusion reached, as indicated above, that Form 2A furnished by the revision petitioner was fake and there was violation of Section 52 (1A) of the Panchayat Raj Act, the correctness of the finding entered by the learned Munsiff with respect to the disqualification under Section 34 (1) (g) and 34 (1) (j) of the above Act was not examined in appeal. 5. Though confirmation of the order of the learned CRP.361/08 8 Munsiff setting aside the election of the revision petitioner could be sustained on any one of the grounds, but, when the appeal was preferred against the decision of the learned Munsiff in an election petition, it was incumbent for the appellate court to examine the propriety and correctness of the findings entered on all the grounds which had been found against the returned candidate for setting aside his election and not to rest its conclusions on only one of the grounds alone holding an enquiry with respect to other grounds is uncalled for. The appellate court as the last forum where disputed questions of fact can be considered on reappreciating the evidence, is bound to examine and enter its conclusion on findings entered on all grounds on which the election had been set aside. In the given facts of the case after examining the materials produced with reference to the orders passed, I find that failure of the appellate court in non-considering the correctness of the findings on two of the grounds on which the election of the petitioner was also found liable to be set aside with another, does not warrant a remission of the case to the appellate court in the event of unsettling of the concurrent CRP.361/08 9 finding entered on the only ground, that is, violation of Section 52 (1A) of the Panchayat Raj Act, is held to be unsustainable. I propose to consider all the three grounds canvassed by the 1st respondent/petitioner in the election petition impeaching the election of the revision petitioner, which had been found established by the learned Munsiff for passing an order setting aside the election of the returned candidate. 6. Disqualification was imputed against the returned candidate under Section 34 (1) (g) of the Panchayat Raj Act for the reason the petitioner as the Convener of a Beneficiary Committee had entered into a contract with the Government for undertaking the development and construction work of a Water Shed Project organised by the Government of Kerala and the Soil Conservation Department. The work contract entered by him was still subsisting when he filed nomination and contested the election was the ground canvassed to contend that he was disqualified under Section 34 (1) (g) of the Panchayat Raj Act. The learned Munsiff, placing reliance on Ext.X4, certified copy of the contract executed between the CRP.361/08 10 revision petitioner and the Government has held that contract had been entered by him in his individual capacity and not as a Convener of the Beneficiary Committee. In Ext.X4 agreement, it has not been stated that he had executed the contract on behalf of the Beneficiary Committee and there is also a clause in that contract casting personal liability on him in the event of any loss on account of his default is caused to the Government was taken note by the learned Munsiff to conclude that in view of the contract entered into, which was subsisting at the time of filing his nomination, he suffered the disqualification under Section 34 (1) (g) of the Panchayat Raj Act. Though the attention of the learned Munsiff had been invited to the Kerala Panchayat Raj (Removal of Disqualification of Candidates and Members in Certain cases) Rules, 1995 contending that no disqualification could be imputed against the returned candidate for the contract entered into with the Government as the Convener of the Beneficiary Committee in implementing a project for the Panchayat, the learned Munsiff was not inclined to accept that view holding that the recitals in Ext.X4 show that he had CRP.361/08 11 entered the contract in his personal capacity. The view so taken by the learned Munsiff cannot be approved. The learned Munsiff lost sight of the fact that the revision petitioner could not have entered into Ext.X4 contract for the implementation of the Water Shed project for the Panchayat, but for his election and status as the Convener of the Beneficiary Committee. It is not the way in which the contract is styled nor the clause incorporated in the contract casting personal liability that is to be given significance, but the removal of disqualification given by the statutory rule in respect of such contract which has to be given predominance. This Court in Vijaya v. Kabeer (2005 (1) KLT 358), held that when a person enters into a contract with the local authority on behalf of a Beneficiary Committee, he has no personal interest in the matter and he suffers no disqualification due to any liability of the Beneficiary Committee. In that case, challenge against a member elected to a Municipality was raised contending that as a Convener of the Beneficiary Committee, he was a defaulter to the Municipality. This Court taking note of Rule 3 (iii) of the CRP.361/08 12 Kerala Municipal (Removal of Disqualification of Candidates and Councillors) Rules, 1995, has held that he cannot be termed as a defaulter. In the Panchayath Raj Act also, similar rules applicable to the members of the Panchayat have been framed. Rule 3 (iii) of the Kerala Panchayath Raj (Removal of Disqualification of Candidates and Members in Certain cases) Rules, 1995, reads thus: 3. Removal of Disqualification of Candidates and Members in certain cases:- A person shall not be deemed to have any interest, for the purposes of clause (g) of sub-section (1) of Section 34 or clause (f) of Section 35, in a subsisting contract made with or in any work being done for the Panchayath concerned on the sole reason that he is having a share or interest, in the following cases:- (i) ................ (ii) ................ (iii) undertaking any contribution work in the Panchayath for the benefit of the community, not as a contractor, but as a representative of the community or the sponsor; or (iv) ............ CRP.361/08 13 When the liability was only as a Convener of the Beneficiary Committee, it cannot be termed as the personal liability of the candidate and it will not disqualify him from contesting the election is the spirit behind the above rule. When such a statutory rule carves out an exemption in respect of the liability cast on a person not in his individual capacity, but as a Convener of a Beneficiary Committee on any work undertaken in the Panchayat, whatever be the liability emanating from that work, it cannot be canvassed as a ground of disqualification disentitling him to contest the election. Absence of the recitals in Ext.X4 that the contract had not been executed on behalf of the Beneficiary Committee is totally irrelevant when such a contract could have been entered only as the Convener of the Beneficiary Committee for implementation of the work in the Panchayat. That being so, the disqualification imputed against the revision petitioner on the ground under Section 34 (1) (g) of the Panchayat Raj Act to contend that there was disqualification, has no merit. Conclusion formed by the learned Munsiff holding that he was disqualified under Section 34 (1) (g) of the Panchayat Raj Act CRP.361/08 14 is erroneous and unsustainable. 7. Now with respect to the disqualification imputed under Section 34 (1) (j) of the Panchayat Raj Act against the revision petitioner, the factual basis was that revenue recovery proceedings had been initiated against him in respect of a loan defaulted which had been availed from a bank, namely, State Bank of Travancore, as and when he filed his nomination and contested the election. Indisputably, a stay granted by the Government was in force against the revenue recovery proceedings permitting the petitioner to pay the sum due to the bank in instalments. The Junior Superintendent of Revenue Recovery was examined as PW1 to prove the above disqualification imputed against the returned candidate. He has given evidence that the revenue recovery proceedings were stayed by the Government by order dated 25.8.2005 directing 10% of the amount before 30.10.2005 and the rest in instalments as provided for in the order. On the date of filing of the nomination and also when the election was held, evidently the stay was in force. However, the learned CRP.361/08 15 Munsiff after referring to Ext.X1 file relating to the revenue recovery proceedings has concluded that only an instalment facility is provided by the Government, which cannot be considered as a stay but only a deferred payment. Perusing Ext.X1 file, I find that the absence of the word 'stay' in the communication sent by the Government does not have any significance. On the request made by the revision petitioner instalment facility in respect of the arrears due covered by the revenue recovery proceedings had been granted by the Government subject to conditions as to furnishing of security and also payment of 10% of the amount within the time fixed. At any rate within the time fixed for payment of the initial payment of the 10% of the amount, the revenue recovery proceedings could not have been taken against him for realisation of the arrears due. The evidence of PW1 that the revenue recovery proceedings was stayed by the communication received from the Government should have been taken note of by the learned Munsiff. The learned District Judge has correctly noted that there was no challenge that the stay was in force as against the revenue recovery CRP.361/08 16 proceedings. If there was a stay against the revenue recovery proceedings, whether the revenue recovery proceedings initiated would continue as a disqualification under Section 34 (1) (g) of the Panchayat Raj Act alone need be considered. On a wrong premise that there was no stay but only a deferred payment that question was not considered by the learned Munsiff. In the light of the evidence of PW1, the revenue recovery official and also the communication covered by Ext.X1 file, it is evident that there was a stay of the revenue recovery proceedings when the petitioner filed his nomination to contest the election. In the present context, it is also to be noticed that the disqualification under Section 34 (1) (j) of the Panchayat Raj Act contemplates not only serving of a notice demanding arrears of any kind due to the Government or the Panchayat but expiry of the time for payment specified in such notice. Section 34 (1) (j) of the Panchayat Raj Act 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- CRP.361/08 17 ((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 When there is a stay granted by the Government granting instalments and the period specified for payment of the initial sum of 10% on the amount due has not expired as on the date of filing of the nomination and also when the revision petitioner contested the election, it cannot be stated that he suffered a disqualification under Section 34 (1) (j) of the Panchayat Raj Act. The finding entered by the learned Musniff, to the contrary is wrong, and cannot be sustained. 8. In the declaration (Ext.X3) filed with his nomination paper (Ext.X2), though the revision petitioner had declared his loan due to the bank, there was material suppression in as much as he did not state the arrears of amount due on that loan, but stated it as 'nil' was the finding entered by the CRP.361/08 18 learned Munsiff on the allegation imputed with reference to the violation of Section 52 (1A) of the Panchayat Raj Act by the petitioner in the election petition, to hold that there was in fact such a violation and his election is liable to be set aside on the ground that the declaration given under Form 2A with the nomination paper is fake and void, and, therefore, his election is liable to be set aside under section 102 (1) (ca) of the Panchayat Raj Act. The learned District Judge concurred with the above finding holding that Form 2A furnished by the revision petitioner with his nomination paper was a fake as there was material suppression of fact with respect to the arrears due from him on the loan to the bank, and therefore, there was violation of Section 52 (1A) of the Act rendering his election void. Strangely enough, it is seen that both the courts have not taken note of the allegation imputed in the election petition and also the evidence let in the case to substantiate the challenge to the election of the revision petitioner under Section 52 (1A) of the Panchayat Raj Act. Paragraph 6 of the election petition reads thus: CRP.361/08 19 “6. At the time of filing of the nominations, the candidates were required to file a sworn affidavit before the returning officer, stating various details as required by Rule 6 (2A) of the Election Rules. The said affidavit ought to have been displayed in the notice board also. Though all candidates including the petitioner had preferred sworn affidavits before the returning officer, the affidavits were not displayed in the notice board nor wee any copies issued to anybody as was required under law.” Then, after adverting to the allegations imputed against the returned candidate, which arise under Section 34 (1) (g) and 34 (1) (j) of the Panchayat Raj Act, as described in paragraphs 7 and 8, which are found to be having no relevance, paragraphs 9 and 10 of the election petition read thus: “9. The 1st respondent had cleverly suppressed these facts from the affidavit filed by him. The affidavit had specific columns with regard to loans and liabilities and regarding contracts if any, with the Government and Panchayat. The 1st respondent had materially suppressed his liabilities and contracts mentioned above from the affidavit. This is in violation of the Section 102 (1) (ca) and 52 (1A) of the Panchayat Raj Act.” CRP.361/08 20 “10. Since the affidavit filed by the 1st respondent was not displayed in the notice board by the returning officer, the petitioner and other general public could not point out this matter to the returning officer. The returning officer had improperly accepted the nomination of the 1st respondent. The nomination ought to have been rejected on the above mentioned grounds.” So, from the allegations narrated above, the only imputation made against the returned candidate with respect to violation of Section 102 (1) (ca) and 52 (1A) of the Panchayat Raj Act was to the effect he had materially suppressed his liabilities and contracts in the affidavit. Petitioner in the election petition has not mounted the box to give evidence to present and substantiate his case that Form