IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 CRP.NO. 106 OF 2007(A) ---------------------- {CMA.20/2006 OF THE DISTRICT COURT, KASARAGOD IN OP.10/2005 OF THE PRINCIPAL MUNSIFF, KASARAGOD} .................... REVN. PETITIONER(S): REVISION PETITIONER. --------------------------------------------------- MANJUNATHAN PRASAD RAI, S/O.SEETHARAM RAJ, THALAKANA HOUSE, ICHALANGODU VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.D.KRISHNA PRASAD RESPONDENT(S): APPELANT/RESPONDANT. ------------------------------------------------ SUDHEESH CHANDRA SHETTY, S/O.KRISHNNA SHETTY, MOGERU HOUSE, ICHALANGODU VILLAGE AND POST, KASARAGOD TALUK AND DISTRICT. R1 BY ADVS.SRI.SAJEEV KUMAR K.GOPAL & SRI.BINOY VASUDEVAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON 09/04/2010 PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. --------------------------------------- C.RP.No.106 of 2007 --------------------------------------- Dated this the 9th day of April, 2010 O R D E R The revision is directed against the judgment dated 9.8.2006 in C.M.A.No.20/06 passed by the learned District Judge, Kasaragod. The revision petitioner was the defeated candidate in the election held to Ward No.12 of Mangalpadi Grama Panchayat in the general election held to the panchayats on 26.9.2005. The respondent herein, who secured the majority of votes in the election was declared as the returned candidate in the election from Ward No.12 of the above Panchayat. His election was impeached by the petitioner filing an election petition O.P.(Election) No.12 of 2005 before the Munsiff's Court, Kasaragod alleging that the respondent was disqualified to contest the election since he was a defaulter against whom revenue recovery proceedings had been initiated for realisation of the sum due from him towards the welfare fund constituted under the Kerala Motor C.RP.No.106 of 2007 :: 2 :: Transport Workers' Welfare Fund {for short “the Fund”} The respondent owed a sum of Rs.15,920/- for the year 2000-01 towards the welfare fund constituted under the KMTWWF Act and treating him as a defaulter from whom arrears of public revenue due on land was pending for realisation, revenue recovery proceedings had been initiated against him was the crux of the case canvassed to allege that he suffered disqualification under Section 34(1)(j) of the Kerala Panchayat Raj Act (hereinafter referred to as “the Act'), to contest the election and, so much so, his election as a returned candidate was liable to be set aside. 2. The respondent resisted the imputations levelled against him as to his disqualification for contesting the election contending that arrears due to towards the welfare fund constituted under the KMTWWF Act could not invite disqualification under Section 34(1)(j) of the Act. The revenue recovery C.RP.No.106 of 2007 :: 3 :: proceedings initiated for realisation of arrears due towards the above welfare fund at the most was only a mode of recovery permitted by the statute and it does not postulate that such arrears are due to the panchayat or to the government to invite the disqualification under Section 34(1)(j) of the Act barring him from contesting the election was his defence. 3. No oral evidence was adduced by any of the parties to the proceedings. Other than the identity card issued to the petitioner exhibited as Ext.A1, the only other material tendered was the files relating to the revenue recovery proceedings initiated against the respondent in respect of the arrears due from him towards the KMTWWF Act. Those files summoned and produced from the Executive Officer, Kerala Motor Transport Workers' Welfare Fund Board, and the Tahsildar (RR), Kasaragod were exhibited as Exts.X1 and X2 respectively. The learned Munsiff, after C.RP.No.106 of 2007 :: 4 :: appreciating the facts and circumstances presented in the case, and the materials produced and hearing the counsel on both sides, found merit in the case canvassed by the petitioner that the respondent suffered disqualification under Section 34(1)(j) of the Act, and, therefore, his election to Ward No.12 of Mangalpadi Grama Panchayat was declared void under Section 102 of the Act. 4. In the appeal preferred by the respondent impeaching the correctness of the order of the learned Munsiff setting aside his election, the learned District Judge, after re-appreciation of the materials, came to the conclusion that arrears due from the respondent towards the welfare fund constituted under the KMTWWF Act would not give rise to a disqualification covered under Section 34(1)(j) of the Act. In that view of the matter, the decision of the learned Munsiff was reversed and the election petition was dismissed allowing the appeal. Challenge in the C.RP.No.106 of 2007 :: 5 :: revision is against the propriety, legality and correctness of the judgment so rendered by the learned District Judge in the appeal filed by the respondent, the returned candidate in the election. 5. I heard the counsel on both sides. 6. From the facts and circumstances present in the case and also the submission made by the counsel on the rival side, the short question that crops up for consideration is whether arrears due from the respondent, the returned candidate, towards the Fund in respect of which, admittedly the revenue recovery proceedings were in progress for realisation, would constitute a disqualification under Section 34(1) (j) of the Act rendering the acceptance of his nomination as improper and thus vitiating his election as the returned candidate. Though the respondent, the returned candidate, had disputed the validity of the orders passed by the Executive Officer, Kerala Motor Transport Workers' Welfare Fund Board and also the C.RP.No.106 of 2007 :: 6 :: revenue recovery proceedings on the basis of such order, such contentions were not pressed into service and the submissions were confined to whether the arrears due from the respondent towards the Fund would constitute a disqualification under Section 34(1) (j) of the Act or not. In the given facts of the case also, I find the above question alone required to be considered as the very citadel of the case to impeach the election of the returned candidate canvassed by the petitioner was built on the basis that such dues would invite a disqualification under Section 34(1)(j) of the Act. 7. Section 34 of the Act specifies the disqualifications as against a person from contesting an election to a panchayat. sub section (1)(j) alone is applicable to the present. sub section (1)(j) of Section 34 of the Act reads thus: “34. Disqualification of candidates:- (1) A person shall be disqualified for being C.RP.No.106 of 2007 :: 7 :: chosen as and for being a member of a Panchayat at any level, if he -- xxxxxxxx xxxxxxxx xxxxxxxx (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:” 8. A reading of the sub section indicates that a person from whom any kind of dues from him to the panchayat or the government concerned (otherwise than in a fiduciary capacity) relating to a period upto and inclusive of the previous year would stand disqualified, provided a bill or notice has been duly served upon him and the time specified thereon for payment has expired. So the material question that emerge for consideration in the present case is whether the dues from the respondent towards the C.RP.No.106 of 2007 :: 8 :: welfare fund constituted under KMTWWF Act would constitute dues payable by him to the government or the panchayat. The learned Munsiff, adverting to the provisions of the KMTWWF Act especially Section 10 thereof, providing for revenue recovery proceedings for realisation of the dues from the employer, and also some decisions dealing with the revenue recovery proceedings over arrears of revenue due on public land has formed a conclusion that the dues from an employer to the KMTWWF Act are essentially dues to the government, and in that view of the matter held that the respondent, who was found to be a defaulter against whom revenue recovery proceedings were in progress was disqualified to contest the election. The learned District Judge, after meticulously considering the provisions of the KMTWWF Act has rightly come to the conclusion that the amount that is due from the employer is nothing but a contribution to be paid by him for the welfare of his employees, motor transport C.RP.No.106 of 2007 :: 9 :: workers, employed by him and the mode of recovery of such contribution as dues in the event of default by way of revenue recovery proceedings would not render such su,m as dues to the government inviting a disqualification under Section 34(1)(j) of the Act. A close reading of the provisions of the KMTWWF Act would indicate that the welfare fund collected under that Act is contribution made by the employer and the employees, and no amount is invested by the government in the constitution of such fund. The statute mandates the employer to make a contribution of 8% of the wages of each employee under him, and also the employees to contribute an equal sum, to constitute the fund for the welfare of the employees. In the event of default of the employer to make the contribution as mandated by the statute, Section 10 of the KMTWWF Act provide for realisation of such sum due as his contribution for the fund by resort to the revenue recovery proceedings treating the sum due as C.RP.No.106 of 2007 :: 10 :: contribution as an arrear of public revenue due on land. The mode of recovery is by resort to the provisions of the revenue recovery Act by no stretch of imagination would render the arrears of contribution due from the employer towards the Fund, even when he has been proceeded as a defaulter under the Revenue Recovery Act for realisation of such sum, as dues from him to the government. The contribution to be realised from him towards the fund is, at the most, a dues from him to his employees and not to the government. Statute provides for realisation of such dues from him by means of revenue recovery proceedings which is applicable in the case of realisation of dues to the government treating such dues as arrears of public revenue due on land, will not make such contribution from the employer to the fund as dues to the government inviting a disqualification under Section 34(1)(j) of the Act. The decision rendered by the learned District Judge that the C.RP.No.106 of 2007 :: 11 :: respondent, returned candidate, has not suffered any disqualification under Section 34(1)(j) of the Act on account of his default in payment of contribution towards the welfare fund under KMTWWF Act in respect of which revenue recovery proceedings had been initiated against him is found to be proper and correct. The judgment passed by the learned District Judge in the given facts, and also the law applicable to the case, is unassailable. Revision lacks merit, and it is dismissed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//