IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 WP(C).No. 19057 of 2011(F) ---------------------------------- PETITIONER(S): ------------------- N.C.AHAMMED, AGED 61 YEARS, S/O.BEERANKUNHI, 1/4289 C.,LIYAS, THUMBUKANDIKULAM,PEOPLES ROAD, KOZHIKODE BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------------- 1. KERALA STATE ELECTION COMMISSION REP BY ITS SECRETARY TRIVANDRUM-695033 2. MOHAMMED ALI K, C.V.VILLA, C.H.CROSS ROAD, NADAKAVU, KOZHIKODE-673011 R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 19057/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE IDENTIFY CARD ISSUED BY THE RETURNING OFFICER TO THE PETITIONER DATED 11/10/2010. P2: COPY OF THE INFORMATION RECEIVED BY THE PETITIONER FROM THE STATE PUBLIC INFORMATION OFFICER AND TAHSILDAR (REVENUE RECOVERY), KOZHIKODE DATED 24/03/2011. P3: COPY OF FORM 24 ISSUED BY THE CANARA BANK DATED 20/01/2010 P4: COPY OF THE REVENUE RECOVERY NOTICE ISSUED BY THE TAHSILDAR (REVENUE RECOVERY), KOZHIKODE DATED 03/11/2010. P5: COPY COF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 20/05/2011. P6: COPY OF ORDER DATED 31/05/2011 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 19057 of 2011 --------------------------------------- Dated this the 14th day of July 2011. JUDGMENT The writ petition is filed seeking to quash Ext.P6 order passed by the first respondent and for a declaration that if a candidate submitted nomination without following Section 108 (1 A) of the Kerala Municipality Act, the same amounts to a disqualification mentioned in Section 90(1) (n) of the Kerala Municipality Act and hence the first respondent has jurisdiction to decide any dispute as per Section 90(2) of the Municipality Act . 2. The municipal election was held on 23.10.10. The petitioner was a candidate in ward No. 66 of the Kozhikode Corporation. The 2nd respondent is the returned candidate in the election. The petitioner did not challenge the W.P.(C) No. 19057 of 2011 2 election within the statutory period. The petitioner submitted Ext.P5 petition before the first respondent alleging that the 2nd respondent suppressed his liabilities to the bank at the time of submitting his nomination as hence violated section 108(1A) of the Kerala Municipalities Act. The petitioner alleges that the 2nd respondent is a defaulter to the Canara Bank as evident from Ext.P2 to P4. For the aforesaid reasons, the petitioner submitted Ext.P5 application requesting the first respondent to set aside the election of the 2nd respondent. The Election Commission examined Ext.P5 complaint and passed Ext.P6 order. After examining Ext.P5 complaint, the Commission is of the view that for setting aside the election of the 2nd respondent, the only remedy he can pursue is to file an election petition under Section 164 of the Kerala Municipality Act. Therefore, the Commission W.P.(C) No. 19057 of 2011 3 rejected Ext.P5 complaint. Since his only prayer is to set aside the election, the first respondent is justified in passing Ext.P6 order. No grounds are made out by the petitioner to set aside Ext.P6 order passed by the first respondent. Therefore, the writ petition is devoid of any merit and is liable to be dismissed. 3. The learned counsel for the petitioner brought to this court's notice Section 90 of the Kerala Municipality Act. As per section 90 (1) (n) a person shall be disqualified for being chosen as and for being a councilor of a Municipality, if he is disqualified under any other provisions of this Act. 4. Section 90 sub- section (2) provides that if any question arises as to whether the candidate has become subjected to any of the disqualifications mentioned in sub-section (1), the question shall be referred to for the decision of the State Election W.P.(C) No. 19057 of 2011 4 Commission and the decision of the State Election Commission on such question shall be final. 5. Learned counsel for the petitioner referred to section 108 (1 A) of the Act which provides that every candidate submitting nomination under sub- section (1) shall not be deemed to be qualified to be elected to fill that post unless he submits, along with such nomination, the details regarding his educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his family, liabilities including arrears due from him to any Public Sector Undertaking or Government or Local Self Government Institutions and whether disqualified for defection under the Kerala Local Authorities (Prohibition of Defection Act) 1999 in the form and manner as may be prescribed. Referring to the aforesaid W.P.(C) No. 19057 of 2011 5 section 90(1) (n) the learned counsel for the petitioner submits that the first respondent is the competent authority to decide as to whether the candidate has become subjected to any of the disqualifications mentioned under Section 90(1) of the Act. 6. Counsel for the petitioner further submits that the petitioner intends to file an application seeking interference of the first respondent to disqualify the returned candidate under section 90 of the Municipality Act. In the event of the petitioner submitting an application for the aforesaid relief, the first respondent shall consider and dispose of the same in accordance with law. The writ petition is dismissed with the above observation. HARUN-UL-RASHID JUDGE al