IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 MFA.No. 52 of 2009() --------------------------------- OPEP.146/2005 of DISTRICT COURT, ALAPPUZHA .................... APPELLANT(S): ---------------------- S.ATTA, S/O. SAINUDEEN, AGED 56 YEARS HAZEENA MANZIL, MANNACHERRY MURI, MANNANCHERRY PO, MANNANCHERRY VILLAGE MANNANCHERRY PANCHAYAT, WARD NO. 20, ALAPPUZHA. BY ADVS.MR.K.HARILAL MR.R.GOPAN RESPONDENT(S): RESPONDENT ------------------------- NISSAR, S/O.ABOOBACKER, AGED 32 CHILAMBI THAYEL, WARD NO.4 MANNANCHERRY PANCHAYAT, PONNADU PO MANNANCHERRY VILLAGE, ALAPPUZHA. ADV. SRI.BENNY VARGHESE-GOVT.PLEADER (B/O) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... M.F.A.No.52 OF 2009 ............................................. Dated this the 8th day of December, 2009 J U D G M E N T This appeal is preferred against the order of the District Judge, Alappuzha in OP(Election)No.146/2005. The petition was filed for a declaration that election of the respondent from Kavunkal Divison-II of Aryadu Block panchayat is void and to declare that the petitioner is a duly elected candidate. It is the case of the petitioner that he was a contestant to the said division and the respondent was declared elected by a margin of 175 votes. It is specifically averred that there is a clear suppression of facts. In form 2A under Section 6(2)(a) of the Kerala Panchayat Raj Act, the candidate has to make a declaration with regard to prosecution of conviction by a court of law. The respondent was an accused in a criminal case pending as STC 2903/04 of JFCM-VII Coimbatore. Similarly it is contended that revenue recovery proceedings were initiated against the respondent for realisation of an amount of Rs.5,10,774/= and that also has not been disclosed. So by virtue of these two : 2 : M.F.A.No.52 OF 2009 suppression of facts, the claimant has become disqualified to contest the election and therefore, his election is to be declared as void. 2. On the other hand, the respondent would contend that he has not suppressed any material facts and he was not served with summons in any criminal complaint. He has not committed any fraud upon the authorities. It is also submitted that the petition has to be dismissed. 3. In the trial court, Exts.A1 to A4 were marked and PW1 and RW1 were examined. The learned District Judge raised 4 points for consideration and dismissed the application of the election petitioner. It is against that decision, the petitioner has come up in appeal before this Court. 4. The points that arise for determination in the appeal are (1) whether the learned District Judge was erred in dismissing the application on the grounds mentioned in the application. (2) Is there anything to interfere with the decision rendered by the District Judge. 5. Points 1 and 2: : 3 : M.F.A.No.52 OF 2009 The learned counsel for the appellant very strongly contends before me that it is a case where there was an amount outstanding to the Government to the tune of Rs.5,10,774/= and therefore, as contemplated under Section 34(1)(j) of the Kerala Panchayath Raj Act it will attract disqualification which in turn will be a ground for setting aside the election. He would also contend that materials are sufficient to prove the same. In an election petition it has to be stated precisely and specifically the grounds for challenging the election. It has to be specifically averred that arrears of any kind due by him to the Government or the panchayat concerned. Just because a mention is made about the revenue recovery proceedings, it does not mean that there is a specific averment with respect to the arrears of any kind. It may indicate arrears but a specific averment is absolutely necessary to arrive at such a decision. What is specifically averred in the petition is regarding pendency of a criminal complaint as well as suppression of material facts in the affidavit in form 2A regarding revenue recovery proceedings. No where in the election petition there is any : 4 : M.F.A.No.52 OF 2009 averment to the effect that towards a particular head arrear is due and he has not paid it and further that revenue recovery proceedings were initiated for the same. 6. It has to be remembered that election petitions have to be meticulously scrutinized and technicality will always prevail unlike in other cases. So far as the criminal case is concerned, materials are available to show that a person had filed a complaint under Section 138 of the N.I.Act against the respondent in the case. But, the materials would reveal that no form of summons or any warrant has been issued which has come to the knowledge of the respondent. Unless a person is affixed with the knowledge of initiation of a criminal proceedings, he cannot be blamed for not revealing the same in the affidavit. The learned District Judge had considered this aspect and held that it is not proved in this case. When a person is not informed about such an action, it will not amount to suppression of material fact and it will not warrant interference by this Court at this stage. 7. The next question is regarding the revenue recovery : 5 : M.F.A.No.52 OF 2009 proceedings. The materials available would show that revenue recovery proceedings were pending against the respondent in this case and his movable properties were attached and sold for an amount of Rs.5,690/=. Since he had no other properties, the revenue recovery certificate was returned by the District Collector, Alappzuaha to the Regional Transport Officer as per letter dated 8.10.2003, So, the fact that on the date of the filing of the nomination no revenue recovery proceedings were pending against the respondent for the reason that as early as on 8.10.2003 it has been sent back to the authority who wanted to initiate revenue recovery proceedings. When it is so, it has to be stated that there was no revenue recovery proceedings pending against the respondent on the date of filing of the nomination. So, from this discussion, it has to be held that the election petitioner has failed to prove that the respondent was aware of a criminal case pending and he has also failed to prove that revenue recovery proceedings were pending against the respondent on the relevant date of filing of the nomination. These are the two grounds on which the election petition is : 6 : M.F.A.No.52 OF 2009 filed. The learned District Judge after an elaborative consideration of the materials and the case law on the point had decided it in favour of the respondent and against the election petitioner. I do not find any ground to interfere with the order impugned. Therefore, the appeal fails and it is dismissed. Inform the Election Commissioner as contemplated under law by sending a copy of this judgment M.N. KRISHNAN, JUDGE cl : 7 : M.F.A.No.52 OF 2009