IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 OP(C).No. 1610 of 2011(O) ------------------------- OP(ELECTION) NO.9/2010 of MUNSIFF COURT,VARKALA .................... PETITIONER ------------------------------ KULAMUTTAM SALIM, S/O.ABDULSALAM, AGED 49 YEARS, ANAS COTTAGE, KULAMUTTAM P.O., MANAMPOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.J.JAYAKUMAR SRI.S.JIJI SMT.V.S.BEENA RESPONDENT(S): --------------- 1. A.M.SABU, S/O.ABDUL UDOOD, AGED 51 YEARS, U.L.LAND, KULAMUTTAM P.O., MANAMPOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. 2. S.YAHIYA, S/O.SHERIEF LABBA, AGED 57 YEARS, AFSAL LAND, KULAMUTTAM P.O., MANAMPOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. 3. A.KABEER, S/O.ABDUL AZIZ, AGED 39 YEARS, SASTHANVILA, KULAMUTTAM P.O., MANAMPOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT. (*) 4. ANIL, S/O.SUKUMARAN, AGED 26 YEARS, PULIYIKKACHIRA, KAVALAYOOR P.O., MANAMPOOR VILLAGE, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT.(DELETED) (*)RESPONDENT NO.4 IS DELETED FROM THE ARRAY OF PARTIES AT THE RISK OF THE PETITIONER AS PER ORDER DATED 12.12.2011 IN IA NO.19649/2011. ADV. SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE FOR R1 SRI.S.MANU FOR R1 SRI.PRAKASH P.GEORGE FOR R1 SMT.K.DEEPA (PAYYANUR) FOR R1 THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.1610/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF OP(ELECTION) NO.9/2010 FILED BY THE PETITIONER BEFORE MUNSIFF COURT, VARKALA EXT.P2 TRUE COPY OF OBJECTION FILED BY THE 1ST RESPONDENT IN THE ABOVE OP (ELECTION) EXT.P3 TRUE COPY OF JUDGMENT DATED 12.4.2011 IN OP(ELECTION) NO.9/2010 OF MUNSIFF COURT, VARKALA. RESPONDENTS' EXHIBITS:NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1610 of 2011 -------------------------------------- Dated this the 19th day of December, 2011. JUDGMENT This petition filed under Article 227 of the Constitution of India is in challenge of judgment dated 12.04.2011 in O.P.(Election) No.9 of 2010 of the court of learned Munsiff, Varkala. Petitioner challenged election of 1st respondent to the local authority on the ground that Form-2A submitted by the 1st respondent along with his nomination is fake in that, he did not mention all his assets and liabilities, suppressed the fact that he has two wives and their assets and liabilities. According to the petitioner, election of 1st respondent is liable to be set aside in view of Section 102(1)(ca) and (d)(i) of the Kerala Panchayat Raj Act, 1994 (for short, “the Act”). 1st respondent contended that allegations are not correct and that at any rate, allegations are not sufficient to hold that Form-2A submitted by the 1st respondent is 'fake' so as to attract the provisions stated above and invalidate acceptance of nomination of 1st respondent and consequently, to invalidate his election. The said question was decided as a preliminary issue. Learned Munsiff came to the conclusion that a mere, incorrect furnishing of particulars which is not consequential does not make Form-2A 'fake' as contemplated under the provisions and hence the election petition is not maintainable. Election petition was dismissed at the threshold. That order is under challenge. OP(C)No.1610/2011 2 2. It is contended by the learned counsel that dismissal in limine contemplated under Sec.93 of the Act does not take in a dismissal of the election petition for the reason stated by the learned Munsiff. According to the learned counsel, court can dismiss an election petition in limine which does not comply with the provisions of Sec.89, 90 or 115 of the Act, no such situation arises in this case and hence dismissal of the election petition under Sec.93(1) of the Act is illegal. For the said reason, it is contended that no appeal as provided under Sec.113 of the Act would lie and that remedy of petitioner is to challenge the impugned oder under Article 227 of the Constitution. 3. Learned Senior Advocate for the 1st respondent contended that a dismissal of the election petition at threshold comes under Sec.93 of the Act and hence is appealable. According to the learned Senior Advocate, allegations made by petitioner do not show that Form-2A submitted by 1st respondent is “fake” and hence prima facie, election petition is not maintainable in which case an enquiry under the Act is not contemplated. It is contended that dismissal of an election petition for not disclosing sufficient materials is also an order coming under Sec.93 of the Act which is appealable under Sec.113 of the said Act and hence no petition under Article 227 of the Constitution would lie. Reliance is placed on the decisions in Omanakutty Amma v. Mathew (2007(1) KLT 356), Nirmala Keralan v. Joy Cheriyan (2007 (1) KLT 692) and Gopalakrishnan v. Sarasi (2009 (2) KLT 882). OP(C)No.1610/2011 3 4. True that Sec.93(1) of the Act refers to dismissal of election petitions which do not comply with the provisions of Sec.89, 90 or 115 of the Act. The question which I am now concerned with is whether dismissal of the election petition in limine in this case would attract the provisions for appeal provided under Sec.113 of the Act? The said provision says that any person aggrieved by an order made by court under Sec.100 or 101 of the Act may prefer an appeal on any question of law or fact before the Forums referred to therein. Sec.100 of the Act deals with the decision of court at the conclusion of trial of the election petition while, Sec.101 deals with other orders made by the court. 5. In Omanakutty Amma v. Mathew election petitioner contended that his nomination was rejected by the Returning Officer on improper grounds alleging that Form-2A was improper as it did not contain signature of petitioner. The Election Tribunal while considering maintainability of the election petition decided the question and held that rejection of nomination by the Returning Officer was not improper. Consequence was dismissal of the election petition as not maintainable in limine. That order was challenged in this Court by a petition under Article 227 of the Constitution. Maintainability of the petition was challenged. It was contended by petitioner (see paragraph 3 of the decision) that the order under challenge was not one as contemplated under Sec.93 of the Act so that, remedy is by way of appeal. Respondent in that proceeding contended that (see paragraph 4) even if the impugned order was passed without following the procedure provided under the Act, remedy of petitioner was OP(C)No.1610/2011 4 by way of appeal. It was contended that an election petition can be dismissed either under Sec.93(1) or under 100(a) of the Act. Learned Judge in paragraph 7 referred to Sec.102(ca) of the Act which enables election petitioner to challenge the election on the ground that details furnished by the returned candidate under Sub-sec.(1A) of Sec.52 of the Act are fake. In paragraph 10, learned Judge held that decision of learned Munsiff that rejection of the nomination is not improper and consequent dismissal of the election petition is an appealable order and that the decision to be appealed against need not be one after trial. 6. As per the said decision, whether or not the decision of learned Munsiff dismissing the election petition at the threshold is after enquiry or not, or whether right or not, the decision is to be appealed against. 7. Nirmala Keralan v. Joy Cheriyan however, related to the election of President or Vice President as the case may be falling under Chapter -XIV of the Act and on a petition filed under Sec.153(14) of the said Act. That decision cannot be applied to the present case. 8. In Omanakutty Amma v. Mathew referred to above the view taken is that whether or not the decision rendered by the Election Tribunal under Sec.93 of the Act is correct, when the election petition is dismissed in limine, that decision is subject to an appeal. I do not find reason to differ from OP(C)No.1610/2011 5 that view. In that view of the matter, this Original Petition cannot be sustained, remedy of petitioner being to challenge the impugned order by way of appeal under Sec.113 of the Act. Objection raised by 1st respondent has to succeed. Resultantly this Original Petition is dismissed without prejudice to the right if any of petitioner to challenge the impugned order before the appropriate Forum by way of appeal under Sec.113 of the Act. THOMAS P.JOSEPH, Judge. cks