IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 CRP.No. 343 of 2008() --------------------- A.S(ELECTION).232/2006 of II ADDL. DISTRICT COURT, PALAKKAD ELECTION ORIGINAL PETITION.24/2005 of MUNSIFF COURT, OTTAPPALAM (ELECTION TRIBUNAL) .................... REVN. PETITIONER(S): RESPONDENT/RESPONDENT ------------------------------------------ AYOOB, AGED 47 YEARS, S/O.THRUNDIKAL KUNHI MOIDU HAJI, ELEDATHMADAMB AMSOM, MUNOORKOD DESOM, OTTAPPALAM TALUK. BY ADV. SRI.M.V.BOSE SRI.VINOD MADHAVAN RESPONDENT(S): APPELLANT/PETITIONER ----------------------------------- ALIKUTTY, AGED 38 YEARS, S/O.VELLOLIPADI MOITHEENKUTTY, ELEDATHAMADEMB AMSOM, MUNOORKOD DESOM, OTTAPPALAM TALUK. ADV. SRI.TOM K.THOMAS FOR CAVEATOR THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.343 of 2008 -------------------------------------- Dated this the 6th day of October, 2010. ORDER In the Grama Panchayat election held on 26.09.2005 from Ward No.6 of Thrikkaderi Grama Panchayat petitioner won mandate of the people. But a voter was not satisfied with his qualification to stand as a candidate and challenged his election on the ground that he was disqualified to be a candidate. The Election Tribunal dismissed his challenge. But the learned Additional District Judge-II, Palakkad in an appeal preferred by him reversing the order of Election Tribunal (court of the learned Munsiff, Ottappalam) unsettled the election of petitioner. Petitioner, the returned candidate is aggrieved and has come up in revision. It is contended by learned counsel for petitioner that findings entered by the learned Additional District Judge are legally and factually incorrect and cannot stand. According to the learned counsel, even if all allegations made by the respondent in the Election Petition are accepted as such, no disqualification as provided under law is made out and hence learned Additional District Judge was not correct in reversing the order of Election Tribunal. Learned counsel for respondent contends otherwise and argued that on the facts and circumstances learned Additional District Judge was correct in appreciating the evidence and coming to a proper conclusion. CRP No.343/2008 2 2. The two grounds on which election of petitioner was challenged are under Sections 34(1)(g) and (j) of the Kerala Panchayat Raj Act, 1994 (for short, “the Act”). Section 34(1)(g) of the Act states that a person shall be disqualified for being chosen as and for being a member of a Panchayat at any level if he is interested in a subsisting contract made with, or any work being done for, the Government or the Panchayat concerned except as a shareholder (other than a director) in a company or except as permitted by rules made under the Act. Case set up by the respondent is that during the relevant time petitioner was convener of a beneficiary committee under the Panchayat concerned for construction of a road. According to the respondent, that construction was not completed and petitioner returned the amount but, not the interest payable thereon. Thus, petitioner was interested in a subsisting contract made with the Panchayat concerned which according to the respondent invited the disqualification under Section 34(1)(g) of the Act. In response, petitioner contended that the work could not be continued on account of lack of co- operation from the local people much before the election process was started and surrender of the work was approved by the Panchayat. Parties have adduced evidence in respect of their contentions. Now the question is whether assuming that as on the relevant day (date of scrutiny of nomination) petitioner was convener of the beneficiary committee as pleaded by the respondent that amounted to a disqualification under Section 34(1)(g) of the Act. To answer that question reference has to be made to Rule 3(iii) of the Kerala Panchayat Raj CRP No.343/2008 3 (Removal of Disqualification of Candidates and Members in Certain Cases) Rules, 1995 (for short, “the Rules”) which states that a person shall not be deemed to be disqualified if he has any interest , for the purpose of Section 34 (1)(g) of the Act in a subsisting contract made with or in any work being done for the Panchayat concerned on the sole reason that he is having a share or interest in undertaking any contribution work in the Panchayat for the benefit of the community, not as a contractor, but as a representative of the community or the sponsor. Petitioner was elected as convener of the beneficiary committee in his capacity as a representative of the community. Dealing upon that provision a learned Single Judge of this Court in Somasekharan Nair v. Divakaran Nair (2010 (2) KLT 1022) has ruled that no disqualification can be imputed against the returned candidate for a contract entered into with the Government as convener of the beneficiary committee. I stated from Section 34(g)(i) of the Act that the interest referred to therein is as regards the contract made with or any work being done for the Government or the Panchayat concerned. Hence the decision must apply in the case of beneficiary committee constituted under the Panchayat as well. Therefore the fact that petitioner was the convener of a beneficiary committee by itself cannot bring any disqualification as stated in Section 34(1)(g) of the Act in the light of Rule 3(iii) of the Rules referred to above and the decision which I have referred to supra. CRP No.343/2008 4 3. There is also no evidence to show that the beneficiary committee was functioning on the relevant day in the present case for, Ext.B2, resolution produced by the petitioner would show otherwise. Ext.B2 is the certified copy of resolution (certified by the President of the Panchayat as 'true copy') where it is stated that as per a resolution passed by the committee of Panchayat on 05.07.2003 liability of convener (petitioner) to pay interest on the advance amount returned to the Panchayat was decided to be discharged. In otherwords, Ext.B2, would show that petitioner had ceased to be a convener of the committee even prior to 05.07.2003 whereas election in the present case was held on 26.09.2005. In the circumstances also learned Additional District Judge was wrong in concluding that presence of petitioner as convener of the beneficiary committee some time prior to the year 2003 invited disqualification referred to in Section 34(1)(g) of the Act so far as the election held on 26.09.2005. 4. Then the question is whether any disqualification under Section 34(g)(j) of the Act is attracted. That refers to the candidate being 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. To attract that disqualification the candidate concerned must have been in arrears as referred to therein having not paid the amount within the time stipulated in the bill or CRP No.343/2008 5 notice of demand served on him. Hence respondent had to prove that petitioner was in arrears of any kind to the Panchayat, a bill or notice was served on him demanding payment of the said amount and he failed to pay the amount within the time stated in the bill or notice. It is seen from the records that respondent has not taken any step either to show that any amount was in arrears from petitioner to the Panchayat or Government, a bill or notice was served on him demanding payment of the said amount and he failed to pay the amount within the time stated in such bill or notice. On the other hand respondent is trying to take refuge under Ext.B2 (referred to supra) and the evidence of petitioner as RW1. I referred to Ext.B2, copy of resolution which stated that for the reason referred to therein meeting (obviously of committee of the Panchayat) held on 05.07.2003 by resolution No.3 decided to waive the interest payable on the advance amount returned by petitioner. Petitioner when examined as RW1 admitted that the President (of the Panchayat) had no authority to waive the interest. Obviously so. For, the decision has to flow by a resolution of the committee of the Panchayat. Learned Additional District Judge said that in the light of Ext.B2 and the evidence of petitioner as RW1 the President of the Panchayat was incompetent to waive interest and hence the liability for payment of interest continued and was subsisting as on the relevant day. Learned Additional District Judge went wrong in stating that Ext.B2 is not a decision by the Panchayat waiving interest payable by petitioner to the Panchayat on cessation of the beneficiary committee. Ext.B2 says that meeting (of the CRP No.343/2008 6 Panchayat committee) in its resolution dated 05.07.2003 resolved to waive the interest. It is not as if President of the Panchayat has decided to do so the committee has decided to do so and what the President has done is only to issue a true copy of the resolution which contains signature of the President as well as the Secretary. It was incorrect to say that as per Ext.B2 the President decided to waive the interest. 5. Though it is contended by learned counsel for respondent that validity of Ext.B2 is in doubt, apart from a suggestion in that line I do not find any material to think so. When the President of the Grama Panchayat has issued a copy of resolution certifying it as true copy, prima facie it has to be given credence. Nothing contra is pointed out. Thus, going by Ext.B2 there was no liability subsisting on petitioner as on the crucial date. Much less is the evidence of service of a bill or demand notice so that it could be said that petitioner failed to pay the amount within the time stipulated in such bill or demand notice. Learned Additional District Judge observed that it was curious to note that the audit report stated that the liability for payment of interest was on the Upper Division Clerk concerned. I am not at the question whether the Upper Division Clerk was liable to pay the interest on the advance amount or not. That is altogether a different matter. I am at the question whether any bill or demand notice had been issued to and served on petitioner and the answer can be only in negative. 6. It is argued by learned counsel for respondent that petitioner CRP No.343/2008 7 belonged to the party which was in office of the Panchayat and hence no bill or demand notice was served on petitioner. That is also a different matter so far as Section 34(1)(j) of the Act is concerned. If no bill or demand notice has been served on petitioner, question of payment of amount within the time stipulated does not arise. Nor could he be termed as a defaulter. Hence question of application of Section 34(1)(j) of the Act does not arise. Learned Additional District Judge was not justified in deciding otherwise and reversing decision of the Election Tribunal. In the circumstances decision of the learned Additional District Judge is liable to be set aside and that of the Election Tribunal is to be restored. Resultantly this revision succeeds. Judgment of learned Additional District Judge, Palakkad in Appeal Suit (Election) No.232 of 2006 is set aside and the order of the Election Tribunal (court of learned Munsiff, Ottappalam) in Election Original Petition No.24 of 2005 is restored with a direction to the parties to suffer their cost through out. I.A.No.947 of 2008 will stand dismissed. THOMAS P.JOSEPH, Judge. cks