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1965 DIGILAW 107 (KER)

Khader v. Damodaran

1965-05-24

M.MADHAVAN NAIR

body1965
JUDGMENT : The petitioner has been returned at the election held on November 23,1963, in the Ward No. 2 constituency of the Azhikode Panchayat. The 2nd respondent and two others were also candidates duly nominated at that election; but the latter two have withdrawn their candidature before the election. The 1st respondent is a voter in the constituency. He has filed O.P. No. 183 of 1963 before Shri. K.G.K. Nayar, Munsiff, Cannanore, under S.22 of the Kerala Panchayats Act, 1960, to declare the petitioner's election invalid and the 2nd respondent to have been duly elected. The petitioner challenged the maintainability of the election petition to which all the candidates who were duly nominated have not been made parties. The Munsiff heard that question as a preliminary issue and held: "The petition is filed by a voter. He was not a candidate for election. A perusal of Sub R.3, R.117 leaves no room for doubt that the provision contained in it applies only to a petition filed by a candidate. A petitioner should implead all the candidates as respondents (?) is he was also so nominated i. e. nominated as a candidate. This is the only interpretation that can be placed upon this sub Rule. As the petitioner was not a candidate for election, I am of the opinion that the direction contained in Sub R.3, does not apply to him. Hence, he is under no obligation to find out who the other candidates for election were and make them also respondents in his petition. In this view of the matter, there is no defect in the petition and, consequently, the preliminary objection raised is over-ruled." This petition is for a writ of certiorari to quash the said order of the Munsiff. 2. Counsel canvassed the maintainability of a prayer in an election petition under the Kerala Panchayats Act, 1960, for a declaration that a candidate other than the one declared elected by the Returning Officer has been duly elected. Though I have found such a prayer in several petitions under S.22 of the said Act, the question cannot be decided here as it does not properly arise on this petition before me. 3. Though I have found such a prayer in several petitions under S.22 of the said Act, the question cannot be decided here as it does not properly arise on this petition before me. 3. Chapter VI of the Kerala Panchayats (Conduct of Elections and Election Disputes) Rules, 1961, - the Chapter has now been superseded by the Kerala Panchayats (Decision of Election Disputes) Rules, 1963, with no material alteration in the rules concerned here - provides for the adjudication of disputes in Panchayat elections. Sub-rules (3) and (8) of R.117 in that Chapter - it is R.5 of the latter Rules of 1963 - read thus: - "(3) A petitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated. (8) If the provisions of sub-rules (1), (2), (3), (4), (5) or (6) of this rule, or sub-rule (1) of R.138 are not complied with, the Munsif shall dismiss the petition." Rule 114 (present R.2) defines: " 'Candidate' means a person who has been or claims to have been duly nominated at an election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect he began to hold himself out as a prospective candidate." In view of this special definition in the particular Chapter of the Rules concerned, the definition given in R.3 (c) for the general purposes of the entire body of the Rules viz., "candidate means a contesting candidate" cannot be of relevance here. Candidates who are duly nominated are those whose nomination papers have been accepted by the Returning Officer. Their names are in the first list published at the end of scrutiny of nominations. Thereafter a period is allowed for withdrawal of candidature. At the expiry of that period, the Returning Officer has to publish another list "of contesting candidates, that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature" within the period allowed therefor. Sub-rule (3) refers to candidates who have been validly nominated, that is to say, candidates in the former list; and not to contesting candidates who are shown in the latter list. Dealing with the very parallel provisions of the Representation of the People Act, 1951, in Amin Lal v. Hunna Mal (AIR. Sub-rule (3) refers to candidates who have been validly nominated, that is to say, candidates in the former list; and not to contesting candidates who are shown in the latter list. Dealing with the very parallel provisions of the Representation of the People Act, 1951, in Amin Lal v. Hunna Mal (AIR. 1965 SC. 1243) the Supreme Court has observed: "Suraj Bhan was a duly nominated candidate and though he withdrew his candidature within the time permitted by the rules he must, for the purpose of S.82 still be regarded as a candidate ... ... A party can avail himself of the provisions of O. I. R.10 (1) CPC. subject to the law of limitation ... The application under O. I. R.10 was made more than eight months after the election of the respondent and was thus inordinately late and could therefore, not be granted." In the present case, application to add party has not so far been made, though it is now more than a year after declaration of the result of the election and the time for presentation of an election petition is only 15 days after such declaration. 4. S.22 of the Kerala Panchayats Act, 1960, entitles "any person qualified to vote at the election" to apply to the Munsiff having jurisdiction over the area for the determination of election disputes. The expression 'a petitioner' in the sub-rule (3) quoted above must then mean the person who files an election petition. The wording of the sub-rule is imperative that "all the candidates who were duly nominated at the election" shall be joined as respondents to the election-petition, with the exception that if the petitioner himself is one such candidate he need not implead himself as a respondent to his own petition. It is simple common sense that one who moves a petition must figure therein as petitioner only, and not as a respondent also. How the Munsiff could be so dogmatic in his interpretation of the sub-rule otherwise is ununderstandable to me. The non-impleadment of two gentlemen who had been duly nominated at the election as respondents to the election petition was a defect in the petition, the consequence whereof has been laid down in sub-rule (8) (quoted above). It directs that an election petition that does not conform to sub-rule (3) shall be dismissed. The non-impleadment of two gentlemen who had been duly nominated at the election as respondents to the election petition was a defect in the petition, the consequence whereof has been laid down in sub-rule (8) (quoted above). It directs that an election petition that does not conform to sub-rule (3) shall be dismissed. The following observations of the Supreme Court in Shri Baru Ram v. Smt. Prasanni (AIR. 1959 SC. 93) are pertinent here: "S. 33 (5) (Representation of the People Act, 1951) requires the candidate to supply the prescribed copy and S.36 (2) (b) provides that on his failure to comply with the said requirement his nomination paper is liable to be rejected. In other words, this is a case where the statute requires the candidate to produce the prescribed evidence and provides a penalty for his failure to do so. In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of S.33 (5) is not mandatory but is directory, because the statute itself has made it clear that failure to comply with the said requirement leads to the rejection of the nomination paper. Whenever the statute requires a particular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence." The Munsiff's order on the preliminary issue, over-ruling the petitioner's contention, is patently erroneous in law and cannot therefore be allowed to stand. 5. Counsel for the respondents pointed out that S. 22, sub-section (51 of the Act directs the provision of the Code of Civil Procedure, 1908, relating to trial of suits to be followed in inquiries on election disputes. But that sub-rule itself says that such adoption should be "subject to the provisions of this Act and the rules to be framed on this behalf". The contemplated rules have been framed and R.117 is part of such rules. It then follows that the provisions of R.117 supersede the provisions of the Code of Civil Procedure on the matter. Neither O.1 R.10, nor Order VI R.17, CPC. can then help the position. The contemplated rules have been framed and R.117 is part of such rules. It then follows that the provisions of R.117 supersede the provisions of the Code of Civil Procedure on the matter. Neither O.1 R.10, nor Order VI R.17, CPC. can then help the position. In the result, the rule is made absolute; but in the circumstances of the case, there will be no order as to costs.