Sukumarakurup v. District Judge — 1997 DIGILAW 106 (KER)

Judgment :- Shanmugam, J. The question that arises for consideration in this Original Petition is whether the Election Tribunal (Principal Munsiff s Court) has the jurisdiction to decide the election dispute on the improper acceptance of nomination after the said question was decided by State Election Commission earlier at the time of receipt of nomination. 2. Briefly stated the facts are: The petitioner was a candidate to Ward No. 5, Alamthara Constituency in Nellanad Grama Panchayat, The nomination of the petitioner was opposed by the 3rd respondent on the ground that he was having subsisting contract with the Government and therefore, he was disqualified as per S.34(1)(g) of the Kerala Panchayat Raj Act, hereinafter referred to as'the Act'. The Returning Officer overruled the objections and the matter was taken up before the State Election Commission who upheld the order of the Returning Officer. Consequently, the Petitioner's nomination was found to have been validly received. In the election held on 23.3.1995 he was declared elected and then became President of the Panchayat. 3. The 3rd respondent filed an election petition, O.P. No. 29 of 1995, before the Election Tribunal (Principal Munsiff, Nedumangad) praying for a declaration that the election of the petitioner be declared as void on the ground that the petitioner was disqualified as he was interested in subsisting contract with the Government and the acceptance of the nomination was improper under S.101(1)(a) and (d)(i) of the Act. The Election Tribunal declared the election of the petitioner as void. The petitioner filed an election appeal before the Principal District Judge and the declaration was confirmed. The Original Petition is filed challenging these orders and for a declaration that the petitioner still continues as the elected member of the Panchayat. 4. The question whether the petitioner had subsisting contract with the Government is a question of fact which has been gone into by the Election Tribunal after oral and documentary evidence and gave a finding that there was subsisting contract between the petitioner and the Government during the material time. As the said finding was confirmed by Principal District Judge this Court may not go into and justifiably no serious arguments were advanced warranting interference with this factual finding. 5. As the said finding was confirmed by Principal District Judge this Court may not go into and justifiably no serious arguments were advanced warranting interference with this factual finding. 5. The main ground of attack of learned senior counsel for the petitioner is that jurisdiction of the Election Tribunal and the Principal District Judge is excluded in the light of the order of the Election Commissioner under S.34(2) of the Act. S.34 of the Act deals with disqualification of the candidates. Sub-s.2 of S.34 enables the State Election Commissioner to decide the question as to whether a candidate has become qualified subject to any of the disqualifications mentioned in sub-s.1 of S.34 of the Act. The decision of the State Election Commission on such question shall be final. The power of the State Election Commission is set out in S.139 of the Act. The Commission has got power to hold enquiry and for that purpose will have the powers of the Civil Court. S.147 of the Act bars the jurisdiction of the Civil Court among other things on any decision given by any other person appointed under this Act in connection with the election. Therefore, according to learned senior counsel, the question whether the petitioner was having subsisting contract with the Government was raised at the time of scrutiny of his nomination and the objection having been rejected by the Returning r Officer and after reference the State Election Commission confirmed the finding of the Returning Officer. Therefore, this issue has been concluded in the light of barring of the jurisdiction of the civil court under S.147 of the Act. The Election Tribunal cannot go into the same question once again. He further submitted that since the impugned orders were passed without jurisdiction their orders are nullity. In this context, he drew my attention to the decision in Dhulabhai v. State of M.P. (AIR 1969 SC 78) and M/s. East India Corporation. Ltd. v. Shree Meenakshi Mills Ltd. (AIR 1991 SC 1095) in support of his contention that exclusion of jurisdiction bars the further consideration of the matter by the Tribunal. The State Election Commissioner's order has become final and therefore, there is no scope for reopening the said question before the election court. There is a statutory bar for adjudicating the said issue once again and therefore the orders of the Election Tribunal and the Principal District. The State Election Commissioner's order has become final and therefore, there is no scope for reopening the said question before the election court. There is a statutory bar for adjudicating the said issue once again and therefore the orders of the Election Tribunal and the Principal District. Judge should be quashed. 6. Learned counsel appearing on behalf of the 3rd respondent submits that Art.243-0 of the Constitution of India provides for the constitution of election court and the disputes relating to election cannot be called in question except by an election petition. The Kerala Panchayat Raj Act, 1994 has provided for a detailed machinery for disputes regarding election. The question that had been raised can be decided only by an election court. He submitted that the power of the Returning Officer and the State Election Commission is in reference to a 'candidate' whereas the Election Tribunal is adjudicating authority in reference to a "returned candidate". He also submitted that the petitioner having not taken that the jurisdiction issue at the earliest point of time is precluded from raising the said issue before this Court for the first time. 7. I have heard the counsel. Art.243-F of the Constitution of India states that a person shall be disqualified for being a member of the Panchayat if he is so disqualified by or under any law made by the Legislature of the State. Sub-clause 2 states that if any question arises as to whether a member of the Panchayat has become disqualified subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide. Art.243 K provides that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission appointed by the Governor. Sub-clause (4) of the Art.243-K provides that the Legislature of a State may, by law, make provision with respect to all members relating to, or in connection with, elections to the Panchayats. Art.243-0 states that no election to any Panchayat shall be called in question except by an election petition. 8. Sub-clause (4) of the Art.243-K provides that the Legislature of a State may, by law, make provision with respect to all members relating to, or in connection with, elections to the Panchayats. Art.243-0 states that no election to any Panchayat shall be called in question except by an election petition. 8. S.12 of the Act provides for appointment of State Election Commission for the purpose of preparation and revision of electoral rolls and conduct of elections under this Act. S.34 of the Act deals with the conditions which disqualify a candidate from being chosen as and for being a member of Panchayat. Sub-s.2 of S.34 of the Act states that if any question arises as to the disqualification, the question shall be referred to the decision of the State Election Commission and it shall be final. Thus, it could be seen that the State Election Commission who is endowed with the function of preparing electoral rolls and conduct of elections has also to decide when a question arises whether a candidate is qualified to contest the election. Thus, the function of the State Election Commission is in reference to the preparation and conduct of elections. The question that has to be decided is in reference to the qualification of a candidate to contest. Chap. X of the Act deals with the dispute regarding election. S.88 of the Act provides that the Munsiff Court shall be the competent court to try the election petitions. The Government shall, in consultation with the High Court notify the appropriate courts in the gasette. S.113 deals with the appeals against an order made by the Court under S.100 before the District Court on the decision of the Munsiff s Court. Thus, it could be seen that the Munsiff Court and District Court are designated authorities under the Act to try the election petitions and the appeals. S.102 sets out the grounds under which an election can be declared as void. One of the grounds set out in S.102 is that on the date of election a returned candidate was not qualified, or was disqualified, to be chosen to till the seat under this Act. Yet another ground is that the results of the election in so far as it concerns a returned candidate has materially affected by the improper acceptance of any nomination. Yet another ground is that the results of the election in so far as it concerns a returned candidate has materially affected by the improper acceptance of any nomination. Thus, the specific provision is made in reference to a returned candidate for the election court to decide whether on the date of election the returned candidate was qualified or disqualified. The Court is also entitled to decide whether by the improper acceptance of the nomination the results of the election had materially affected. In so far as the disputes relating to election it can be decided only by an election petition as per Art.243-0 read with S.87 of the Act. S.34 speaks of a disqualification of a candidate in the sense that before acceptance of the nomination of a candidate by the Returning Officer the candidate should satisfy the qualifications set out and should not suffer any disqualifications as set out under S.34. Therefore, the decision of the Returning Officer and State Election Commission is referable only to a candidate before election and in reference to the acceptance of his nomination whereas the election court deals with the declaration of the election of a returned candidate. The fact that the returned candidate as a candidate was subject to an enquiry by the Election Commission about his disqualification would not in any manner take away the jurisdiction of the election court to go into the question that on the date of his election he was qualified or was disqualified. In other words, the authority of the State Election Commission is in reference to the question whether the candidate is competent to contest where as the jurisdiction of the election court arises after the election in reference to a returned candidate. 9. The bar of jurisdiction under S.147 of the Act is in reference to a decision in connection with the election. The civil court that is referred under S.147 of the Act can be referable only to the civil courts constituted under S.9 of the Code of Civil Procedure. The election court constituted and designated under S.88 and 113 are not civil courts under S.9 of the Code of Civil Procedure. The Munsiff Court and the District Court have been notified as appropriate courts under Ss.88 and 113 respectively for the purpose of trying the election petition and the appeal. The election court constituted and designated under S.88 and 113 are not civil courts under S.9 of the Code of Civil Procedure. The Munsiff Court and the District Court have been notified as appropriate courts under Ss.88 and 113 respectively for the purpose of trying the election petition and the appeal. Therefore, the contention that the Election Tribunal or District Court are civil courts and that therefore, the jurisdiction subsequent to the decision given by the Returning Officer or the State Election Commission is barred cannot be sustained. The Court is a special judicial officer appointed by the Government. The Supreme Court in State of Mizoram v. Biakchhawna ((1995) 1 SCC 156) held that Principal Civil Court enjoined to determine compensation under Land Acquisition Act and by special procedure provided by necessary implication the civil court under S.9 of the Code of Civil Procedure has been prohibited. Hence, it was held that the Civil Court committed a clear and manifest error of law in decreeing the suit. Thus, the Courts functioning under the Panchayat Act cannot be treated as civil courts so as to deny of their jurisdiction. The election court is not barred to go into the decision of the State Election Commission. A detailed and separate procedure has been set aside in Chapter X regarding the election disputes. The question whether a returned candidate is qualified or not qualified relating to the declaration of the result is within the exclusive jurisdiction of the election court as per Art.243-O read with S.83. The competency of the election Court on the subject cannot be doubted. 10. A Constitution Bench of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner (1978 (1) SCC 404) went into the scope of the Election Commission's power, vis-a-vis the power of the Court under S.100 of the Representation of People's Act. The competency of the election Court on the subject cannot be doubted. 10. A Constitution Bench of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner (1978 (1) SCC 404) went into the scope of the Election Commission's power, vis-a-vis the power of the Court under S.100 of the Representation of People's Act. The learned judgment rendered by Krishna Iyer, J in this context, held as follows: "The Election Tribunal has, under the various provisions of the Act, large enough powers to give relief to an injured candidate if he makes out a case and such processual amplitude of power extends to directions to the Election Commission or other appropriate agency to hold a poll, to bring up the ballots or do other things necessary for fulfillment of the jurisdiction to undo illegality and injustice and de complete justice within the parameters set by the existing law". The Supreme Court held that having regard to the statutory setting and comprehensive jurisdiction of the election Court it is within its powers to direct a re-poll of particular polling stations to be conducted by the specialised agency under the Election Commission. 11. The main question now raised by the learned counsel for the petitioner was similar to the one raised and decided by the Supreme Court in N.P. Ponnuswami v. Returning Officer, Namakkal (AIR 1952 SC 64). In that case, the appellant challenged the rejection of the nomination paper by the Returning Officer. One of the contentions raised by the appellant in that case was that if the validity of nomination is part of election dispute, whether that can be called in question only in accordance with the provisions of Art.329(b) by the presentation of an election petition to the appropriate tribunal and that the Returning Officer would have no jurisdiction to decide the matter. It was argued that S.36 of the Representation of the People Act would be ultra vires inasmuch as it confers on the Returning Officer the jurisdiction, when it confers on the Tribunal under Art.329(b). The Supreme Court dealing with this argument held as follows: "This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal and I think it can be very shortly answered. The Supreme Court dealing with this argument held as follows: "This argument displays great dialectical ingenuity, but it has no bearing on the result of this appeal and I think it can be very shortly answered. Under S.36, Representation of the People Act, 1951, it is the duty of the Returning Officer to scrutinise the nomination papers to ensure that they comply with the requirements of the Act and decide all objections which may be made to any nomination. It is clear that unless this duty is discharged properly, any number of candidates may stand for election without complying with the provisions of the Act and a great deal of confusion may ensure. In discharging the statutory duty imposed on him, the Returning Officer does not call in question any election. Scrutiny of nomination papers is only a stage, though an important stage, in the election process. It is one of the essential duties to be performed before the election can be completed, and anything done towards the completion of the election proceeding can by no stretch of reasoning the described as questioning the election. The fallacy of We argument lies in treating a single step taken in furtherance of an election as equivalent to election. The decision of this appeal, however, turns not on the construction of the single word 'election', but on the construction of the compendious expression - "no election shall be called in question" in its context and setting, with due regard to the scheme of Part XV of the Constitution and Representation of the People Act, 1951. Evidently, the argument has no bearing on this method of approach to the question posed in this appeal, which appears to me to be the only correct method". In the later Constitutional Bench Judgment, following the Ponnuswamy's case (supra) in Mohinder Singh's case referred earlier the Supreme Court held as follows: "One interesting argument, urged without success in Ponnuswami elected a reasoning from the court which has some bearing on the question in the present appeal. That argument was that if nomination was part of election a dispute as to the validity of the nomination was a dispute relating to election and could be called in question, only after the whole election was over, before the election tribunal. That argument was that if nomination was part of election a dispute as to the validity of the nomination was a dispute relating to election and could be called in question, only after the whole election was over, before the election tribunal. This meant that the Returning Officer could have no jurisdiction to decide the validity of a nomination, although S.36 of the Act conferred on him U)at jurisdiction. The learned judge dismissed this argument as without merit, despite the great dialectical ingenuity in the submission." The Supreme Court further held that when the appellants question the election after declaration of the result on the basis of the fresh poll, the election court will be able to entertain their objection with regard to the order of the Election Commission countermanding the earlier poll, and the whole matter will be at large. (emphasis added) S.170 of the Representation of the Peoples Act bars the jurisdiction of the Civil Court against the decision given by the Returning Officer or any other person appointed under the said Act in connection with an election. Under S.36 of the said Act, the Returning Officer has got the power to decide including the power to reject any nomination on the ground that the candidate is not qualified or disqualified. S.9A states that a person shall be disqualified, if he has subsisting contract with the Government. S.80 states that no election shall be called in question except by an election petition, and under S.80A the High Court is the court having jurisdiction to try the election petition. S.100(1) (a) is one of the grounds for declaring the election to be void namely, a returned candidate was not qualified or was disqualified. Thus, the provisions of the Panchayat Act is in pari materia with R.P. Act. The Returning of Officer has jurisdiction to decide the question or qualification of disqualification of a candidate before accepting the nomination. Similarly, once a candidate is returned, the Court constituted under the Act has got the power to go into the question and decide whether the returned candidate's election is void. The Returning of Officer has jurisdiction to decide the question or qualification of disqualification of a candidate before accepting the nomination. Similarly, once a candidate is returned, the Court constituted under the Act has got the power to go into the question and decide whether the returned candidate's election is void. The two decisions of the Supreme Court referred above have in unmistakable terms laid down that the jurisdiction of the election court to decide the election dispute would include the question of disqualification even if the same has been decided by the Returning Officer either way at the stage of scrutiny of the nomination. In other words, the decision of the Returning Officer would also be subject to the decision of the election Court. There is no error in the exercise of the jurisdiction by the election Court. After careful consideration of the order I do not find any other ground for interference. Hence the Original Petition fails and is dismissed.