IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 CRP.No. 210 of 2009() --------------------- AS.7/2007 of DISTRICT COURT, ALAPPUZHA OP(ELE).3/2005 of MUNSIFF COURT,CHENGANNUR .................... REVN. PETITIONER(S)/APPELLANT/PETITIONER: --------------------- SURESH KUMAR.K., JAYANANDA BHAVANAM, PENNAKKARA P.O., VADAKKUM MURI, ALA VILLAGE. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN RESPONDENT(S)/RESPONDENTS/RESPONDENTS: -------------------------------------- 1. MAHENDRAN, PAZHUKKAMODIYIL, KIZHAKKECHERUVIL, PENNUKKARA. 2. MANOHARAN, MALAMODIPADINJARECHERUVIL, PENNUKKARA, VADAKKUM MURI, ALA VILLAGE, 3. SANTHOSH, SANTHOSH BHAVAN, PENNUKKARA, VADAKKUM MURI, ALA VILLAGE. 4. GRAMA PANCHAYAT, ALA, REP.BY IT SECRETARY, GRAMA PANCHAYAT, ALA. ADV. SRI.N.ASHOK KUMAR FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.210 OF 2009 () ----------------------------------- Dated this the 23rd day of November, 2009 J U D G M E N T The revision is directed against the judgment dated 31.10.2008 in A.S.No.7 of 2007 passed by the learned District Judge, Alappuzha. Revision petitioner was one among the candidates from Ward No.4 of Ala Grama Panchayath, who contested the election, which was held on 24.9.2005. The 1st respondent was declared elected in the election, in which respondents 2 and 3 also contested. The election of the 1st respondent was challenged by the petitioner on the ground that 1st respondent was a defaulter to the Panchayath as on the date of his nomination to contest the election. He had suppressed material facts as to his liability to the Panchayath in respect of a contract work undertaken from the local authority while filling up Form 2A, which was an integral part of his nomination paper. He did not complete the work before March, 2000, the time fixed after collecting a sum of CRP.210/09 2 Rs.72,000/- as advance, and thus he had liability under the contract towards the Panchayath, was the case canvassed by the petitioner. The election petition filed by the petitioner to set aside the election of the 1st respondent was contested only by that respondent. The learned Munsiff, Chengannur, after examining the materials produced and hearing the counsel on both sides, found no merit in the ground canvassed to impeach the election of the 1st respondent, and the election petition was dismissed with cost and compensatory cost. Petitioner challenged the dismissal of the election petition by filing an appeal before the District Court, Alappuzha. The learned District Judge after reappreciating the materials produced, concurring with the views taken by the court below, dismissed the appeal. However, the compensatory cost of Rs.2,000/- awarded by the learned Munsiff was not found legal and correct, and so much so, it was set aside. Revision is preferred challenging the concurrent decision rendered by two courts below holding that the challenges canvassed by the petitioner that the 1st respondent was a defaulter to the local authority as and when he contested the election was CRP.210/09 3 unfounded and his election is not liable to be set aside on the ground so canvassed. 2. I heard the counsel on both sides. As a convener of the Beneficiary Committee in respect of a work of the Panchayath, the 1st respondent collected a sum of Rs.72,000/- and the work remained uncompleted as and when he contested the election was the basis of which his election to a member of the Panchayath was impeached contending that he was a defaulter to the Panchayath and he had suppressed his liability to the Panchayath when Form 2A was filled up and furnished alongwith his nomination paper. Both the courts below relying on 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 the above decision, challenge against a member elected to a Municipality was raised contending that as a convener of the Beneficiary Committee, he was a CRP.210/09 4 defaulter to the Municipality. This Court taking note of Rule 3 (iii) of the 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 Panchayath 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.210/09 5 So long as 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 Panchayath, whatever be the liability emanating from that work, it cannot be canvassed as a ground of disqualification disentitling him to contest the election. View taken by the two courts below in the given facts of the case and materials placed on the basis of the statutory exemption referred to above holding that the liability cast not in his personal interest towards the Panchayath was not a disqualification is proper and correct. Needless to state that the 1st respondent was not bound to disclose about that matter in Form 2A filled along with his nomination paper. The learned counsel for the revision petitioner however canvassed that the decisions rendered by the two courts below should CRP.210/09 6 not be taken as relieving the 1st respondent from his liability towards the Panchayath even if that could not be considered as a ground sufficient to disqualify him from contesting the election. In the proceedings challenging his election, whatever be the findings entered on the question whether he was a defaulter or not to the Panchayath, that would not absolve him if he was otherwise liable to the Panchayath and in proceeding against him as provided by law in respect of such liability. Whether his election as a member of the Panchayath was vitiated on the ground of his disqualification as a defaulter, that alone is the consideration in the proceedings challenging his election, and in doing so, in view of the applicability of Rule 3 (iii) of the Kerala Panchayath Raj (Removal of Disqualification of Candidates and Members in Certain Cases) Rules, 1995, it has been found that he could not be considered as a defaulter and he was not disqualified to contest the election. His liability, if any, to the Panchayath as a convener of the Beneficiary Committee, if it is so, as canvassed by the revision petitioner, is not decided one way or other in the proceedings, and it has to be determined in the CRP.210/09 7 proper forum in proper proceedings, if invited for, in accordance with law. Challenge raised against the election of the 1st respondent as a member of the Panchayath on the grounds canvassed that he was a defaulter to the Panchayath and thus disqualified has been rightly and correctly repelled by both the courts below in view of the statutory provision indicating in unmistakable terms that the liability, if any, cast upon him as a member of the Beneficiary Committee, cannot be taken as disqualifying him from contesting the election. The revision lacks merit, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp