IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 CRP.No. 78 of 2007() ------------------------------- EA.73/2006 of DISTRICT COURT,KOLLAM .................... REVN. PETITIONER(S): RESPONDENT IN ELECTION APPEAL ------------------------------------ SRI.SIDHARTHAN NEELAKANTAN, AGED 53 YEARS, MANKONATHU VEEDU, EDAMON P.O., PATHANAPURAM TALUK, KOLLAM DISTRICT. BY ADVS.MR.S.ABHILASH MR.S.HARIKRISHNAN MR.C.UNNIKRISHNAN (KOLLAM) MR.V.VENUGOPALAN NAIR RESPONDENT(S): APPELLANT IN ELECTION APPEAL ------------------------------- SRI.A.KUNJU MYHEEN, AGED 50 YEARS, S/O ABUBAKKER, POONTHOTTATHIL VEEDU, EDAMON P.O., PATHANAPURAM TALUK, KOLLAM DISTRICT. BY MR.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR CAVEATOR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON IA. NO.222/ 2007 IN CRP. NO.78/2007 Dismissed 20.03.2009 SD/- HARUN-UL-RASHID, JUDGE TRUE COPY P.S. TO JUDGE TSS HARUN-UL-RASHID,J. --------------------------- C.R.P.NO.78 OF 2007 ---------------------------- DATED THIS THE 20TH DAY OF MARCH, 2009 O R D E R Revision Petitioner is the petitioner in O.P.(Election) No.8/2005 on the file of the Munsiff's Court, Punalur. The O.P. was filed under the provisions of the Kerala Panchayat Raj Act challenging the election of the respondent herein as the member of Ward No.11 of Thenmala Panchayat. The Munsiff's Court by judgment dated 27/2/2006 set aside the election. The Appellate Court reversed the judgment of the court below and dismissed the election petition. After the poll, the Returning Officer declared the respondent as the elected candidate. He secured a margin of 142 votes. The total number of votes polled were 766. The revision petitioner got 307 votes and the returned candidate got 449 votes. The petitioner challenged the election contending that the respondent is a disqualified candidate and therefore he is disqualified from acting as a member of the Panchayat under -2- CRP.No.78/2007 Sections 34(1) (j) and 35(1)(j) of the Kerala Panchayat Raj Act. It is the case of the revision petitioner that the respondent had dues to the Government and there was a Land Conservancy Case against the respondent, in which the Tahsildar imposed a fine of Rs.1,34,600/-. The respondent did not disclose the above said dues in the prescribed form and therefore under Section 52(1A) he is disqualified from contesting the election. The respondent admitted that the Land Conservancy proceedings had been initiated against him and that the Tahsildar imposed a fine of Rs.200/- and also an amount of Rs.1,34,600/-. His case is that the matter is pending in revision before the District Collector and therefore he contended that the dues assessed by the Tahsildar cannot be taken into account for the purpose of disqualifying him from acting as a member of the Panchayat. Before the Munisff's Court oral and documentary evidences are adduced by both sides. The revision petitioner contended before the court below that the respondent is disqualified from contesting the election under -3- CRP.No.78/2007 Sections 34(1)(j) and 35(1)(j) of the Kerala Panchayat Raj Act. It is not disputed that the material facts sought for in the declaration to be filed along with the nomination paper are not furnished. At the time of submission of nomination, the Tahsidar by order dated 4/11/2004 in the Land Conservancy Case fixed the liability and directed the respondent and other two persons to pay an amount of Rs.1,34,600/-. The said order was challenged in appeal, which was dismissed on 14/2/2005. The nomination along with the details to be furnished under Form 2A was submitted on 6/9/2005. The proceedings for imposition of penalty of Rs.1,34,600/- is initiated against the respondent and two others. The incident that led to the initiation of Land Conservancy proceedings is that the respondent has transported 105 loads of sand unauthorisedly from the Kallada river. On getting information, the site was inspected and the Village Officer registered L.C.No.32/97 and the report is marked as Ext.X2. The mahazar is marked as Ext.X4 and sketch is marked -4- CRP.No.78/2007 as Ext.X5 respectively. The order in L.C.No.32/97 is that the accused have committed the offence of illegal mining and removal of sand from the Kallada river and therefore, the accused are fined a sum of Rs.200/- each and also ordered that they are liable to pay an amount of Rs.1,34,600/- towards the royalty and cost of 105 lorry loads of sand. The learned counsel for the revision petitioner submitted that revision petition filed before the District Collector was also dismissed on 4/11/2006 and during the pendency of Election Appeal No.73/2006 the parties had remitted the fine amount and the amount ordered to be recovered on 11/12/2006. 2. Ext.X12 is the affidavit filed along with the nomination paper, which is marked as Ext.X10. Ext.X11 is the declaration filed by the candidate. The relevant portion in Ext.X11 is marked as Ext.X13. In column (iii) regarding the arrears to the Government, the respondent has stated 'Nil'. He has not stated about the liability of Rs.1,34,600/- to the -5- CRP.No.78/2007 Government in that column, which is against the provisions of Sections 34(1)(j) and 35(1)(j) of the Kerala Pachayat Raj Act. Section 34(1)(j) enjoins that if the candidate is in arrears for any kind dues to the Government or Panchayat concerned, he is disqualified for contesting the election. Section 52(1A) of the Act mandates that the candidate shall furnish the details regarding educational qualification, criminal cases, property details and the liabilities including arrears due to any public sector undertaking or Government or Local Self Government Institutions etc. Election Petition was filed stating violation of Sections 102(a) (b) and 103 (b) of the Act. This is a case where Section 34(j) is attracted and therefore the candidate is disqualified for being chosen as a member of the Panchayat. The election of the respondent is illegal for violation of sub section 1A of Section 52 of the Act. This is a case where he has concealed the fact that there are dues to the Government. For these reasons the election of the respondent as a member of the -6- CRP.No.78/2007 Panchayat is bad in law and he is a person disqualified from contesting the election. 3. The learned counsel for the respondent contended that the fine imposed by the Tahsildar, which confirmed in appeal did not attain the finality at the time of presentation of nomination, since the revision petition filed challenging the order passed by the Tahsildar is pending before the District Collector. 4. This Court, in the decision reported in Siby Joseph v. State Election Commission (2004 (2) KLT 1106) referring to Section 34(1)(b)(i) of the Kerala Panchayat Raj Act as it then was, held that so long as the finding of the guilt has not been subjected to a stay in pending appeal, it is not possible for the petitioner to contend that there is no disqualification for him to continue or function as a member. This Court relied on the decisions reported in B.R.Kapur v. State of Tamil Nadu (AIR 2001 SC 3435) & Vidya Charan Shukla v. Purushotam Lal Kaushik((1981) 2 SCC 84) and held that the mere pendency of -7- CRP.No.78/2007 appeal or revision as the case may be, cannot be taken as a reason for finding that the candidate is disqualified from contesting the election. 5. The Appellate Court considered the judgment of the Munsiff's Court stating that since the revisional authority has seized of the matter, it could not be said that the amounts already made mention of, are actually due from the respondent. The appellate Court observed that the respondent has availed of a statutory remedy and till that is disposed of, it could not be said that the amount is due from the respondent. On the basis of the said reasoning the Appellate Court held that Section 34(1)(i) and Section 52(1A) cannot be said to be attracted. 6. For the reasons stated in the preceding paragraphs, I cannot agree with the view taken by the Appellate Court. For the reasons stated, I am satisfied that the returned candidate is a disqualified candidate and therefore he is disqualified from contesting the election. In the result, the impugned order in -8- CRP.No.78/2007 Election Appeal No.73/06 on the file of the District Court, Kollam is set aside and the judgment of the Munsiff's Court, Punalur in OP(Election)No8/2005 is restored. C.R.P. is allowed. There will be no order as to costs. HARUN-UL-RASHID, Judge. kcv.