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1999 DIGILAW 511 (KER)

Antappan v. Asokan

1999-10-21

M.R.HARIHARAN NAIR

body1999
Judgment :- M.R. Hariharan Nair, J. The question involved in this revision petition is the validity of the election to the Elappara Grama Panchayat held on 23.9.1995 with regard to Ward No. IX. 2. Antappan, the revision petitioner herein was declared successful in the election held on 23.9.1995 and was consequently allowed to be sworn in a member of the Elappara Grama Panchayat. The first respondent in the case - Asokan had also given nomination paper in the election from the same Ward; but his nomination had been rejected by the Returning Officer on the ground that he was a defaulter of building tax due to the same Panchayat. In the election petition he challenged the said decision of the Returning Officer and contended that his nomination was wrongly rejected. The Election Court upheld the contention and consequently declared that the election of the revision petitioner was invalid. The appellate Court (District Court) upheld the contention and it is these concurrent findings that are challenged in the revision. 3. The learned counsel for the revision petitioner raised only two contentions. Firstly, it was pointed out that the Courts below were incompetent to decide the question whether the first respondent was actually disqualified to contest the election and that it was only the State Election Commission which could go into that aspect. Secondly, it was argued that the first respondent was clearly a defaulter as rightly held by the Returning Officer and as such, was ineligible to contest the election. Counsel submits that in the circumstances, the orders of the two Courts below are liable to be interfered with in exercise of the revisional jurisdiction available with this Court in view of the decision in CRP No. 2243/1948 and other connected cases of this Court. 4. The nomination paper submitted by the first respondent was rejected holding that he was disqualified under S.34(1)0) of the Kerala Panchayat Raj Act, 1994. It will be useful to quote S.34(1)(j) here: 34(1). 4. The nomination paper submitted by the first respondent was rejected holding that he was disqualified under S.34(1)0) of the Kerala Panchayat Raj Act, 1994. It will be useful to quote S.34(1)(j) here: 34(1). A person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, if he XXX XXX XXX XXX XXX XXX (j) is in arrears of any kind due by him to the Government or the Panchayat concerned (otherwise than in a fiduciary capacity) up to 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; or S.34(2) provides that if any question arises as to whether a candidate has become subject to any of the disqualifications mentioned in sub-s.1 (sub-s. 10)) including the question shall be referred for the decision of the State Election Commission and the decision of the State Election Commission on such question shall be final. In the instant case, there was no such reference either before or after the election. 5. Though not the term 'previous year', the term 'year' has been defined in S.2(xl viii) as the financial year. In order to apply the disqualification under S.34(1)(j) the revision petitioner has therefore to establish that the 1st respondent was in arrears of any kind due to the Government or Panchayat for the financial year 1994-95. Tax due to the Panchayat for the said year are collected in two halves namely, for the period from 1.4.1994 to 30.9.1994 and from 1.10.94 to 31.3.95. There is no case for anyone that the first respondent had defaulted tax due to the Panchayat in either of the two half years and the contention is only that he defaulted payment of tax due for the period 1.4.95 to 30.9.95. The said payment became due on 30.4.95. But there is no evidence adduced before the Court below that a bill or notice in respect of the said arrears was issued or served on the first respondent. The said payment became due on 30.4.95. But there is no evidence adduced before the Court below that a bill or notice in respect of the said arrears was issued or served on the first respondent. Thus, there is absence of evidence adduced by the revision petitioner to show that the first respondent has failed to pay tax due for the previous year and even with regard to subsequent period, that there was any failure to pay the tax in spite of a bill or notice as contemplated under S.34(1)(j) of the Act. The two Courts below have found concurrently in this regard and there is absolutely no reason to disagree with the said findings, 6. The revision petitioner has a case that the civil courts including this Court are incompetent to go into the question whether there was in fact a non-payment of tax leading to disqualification and that a reference of the question to the State Election Commission is essential. As already mentioned, there was no challenge of the decision of the Returning Officer with regard to the disqualification under S.34(1)(j) made at any time before the State Election Commission on behalf of the revision petitioner or at the instance of any other person, and the election had gone through without any such challenge. 7. Reliance is placed on S.36 of the Kerala Panchayat Raj Act by the revision petitioner in support of his contention that such a reference is essential. S.36(1) and (2) reads as follows: "36. Determination of subsequent disqualification of a member-CD Whenever a question arises as to whether a member has become disqualified under S.30 or S.35 after having been elected as a member, any member of the Panchayat concerned or any other person entitled to vote at the election in which the member was elected, may file a petition before the State Election Commission, for decision. (2) The State Election Commission, after making such enquiry as it considers necessary, shall decide the petition referred to in sub-s.(1) whether or not such member has become disqualified and the decision shall be final, so however that pending such decision, the member shall be entitled to act as if he were not disqualified." The absence of any reference to S.34 in S.36(1) quoted above is very conspicuous. It is only disqualifications under S.30or 35 that are contemplated here. It is only disqualifications under S.30or 35 that are contemplated here. S.35(1)0) also relates to disqualification on the ground of arrears of tax; but that is with reference to disqualification of members after the election. S.35(1)0) enables the State Election Commission to declare that an elected member, if he commits any default in arrears Inspite of bill or notice being served upon him, is disqualified. It is such a question that is sought to be referred to the Election Commission under S.36(1). 8. A joint reading of S.34 to 36 of the Act makes one thing earlier. A clear distinction is drawn by the statute with regard to pre-election dispute regarding disqualification and post-election dispute regarding disqualification. As far as the preelection arrear disputes are concerned, the matter reaches the Election Commission for decision only if the aggrieved party moves under S.34(2) mentioned supra whereas a post-election dispute would reach the Election Commission if motion is made under S.36(1). If post-election arrears are established the State Election Commission can disqualify him from membership whereas if pre-election disqualification is established, he will be disqualified from contesting the election. There is no provision in the Act for among a reference to the State Election Commission when the question of pre-election disqualification is raised in an election petition. The obvious inference is that all such disputes relating to pre-election disqualifications are to be dealt with by designated Court and not by the State Election Commission. 9. In Sukumara Kurup v. District Judge (1998 (2) KLT 548) this Court dealt with' a case where a pre-election disqualification had been decided by the State Election Commission under S.34(2) and where the same question was raised in an election petition. The question that arose in the case was whether the Designated Court is bound by the decision rendered under S.34(2). The Division Bench which decided the case found that the cardinal principle of law is that it does not permit duplication or repetitive decisions on the same issue by different statutory authorities at different stages. The question of disqualification allegedly incurred under S.34(1)(g) having been decided by the State Election Commission, his decision was held final under S.34(2). The Bench was of the view that the same disqualification would not be subjected to further probe in the election petition by the Court which is a creature of the same statute as is the State Election Commission. The Bench was of the view that the same disqualification would not be subjected to further probe in the election petition by the Court which is a creature of the same statute as is the State Election Commission. The position would be different if the allegation is that after the filing of the nomination, the candidate incurred a new disqualification under S.34(1)(g). Only in such a situation can it be argued that there was no decision of the State Election Commission on the new disqualification which would thereby debar the Designated Court to go into it. If the contention to the contrary is accepted, there will be possibility of conflicting decisions by the State Election Commission on the one hand and the Designated Court on the other on the question of one and the same disqualification. Law does not contemplate such a situation and therefore, the phrase "shall be final" appearing in S.34(2) would mean that after the decision rendered by the State Election Commission on the question of disqualification, the Designated Court would not be competent to decide the same question again. 10. There is nothing in the said decision which indicates that if a question of preelection disqualification is raised for the first time after the conduct of the election, that question should be referred by the Designated Court to the State Election Commission for decision. The contention of the revision petitioner that the Courts are bound to refer question of disqualification raised under S.34(1)(j) in election petitions to the State Election Commission is therefore found to be without merit. As already mentioned, there is total lack of evidence to show that the first respondent was a defaulter within the meaning of S.34(1)(j) of the Act. The finding of the Returning Officer that he was disqualified to conduct the election is thus erroneous as rightly held by the two Courts below. 11. S.102 of the Kerala Panchayat Raj Act, 1994 deals with grounds for declaring election to be void. According to S.102(1)(c) if the Court is of opinion that any nomination has been improperly rejected the Court shall declare that the election of the returned candidate to be void. The first respondent has established before the Designated Court that he was actually not a defaulter within the meaning ofS.34(1)0) of the Act and that his nomination paper has been improperly rejected by the Returning Officer. The first respondent has established before the Designated Court that he was actually not a defaulter within the meaning ofS.34(1)0) of the Act and that his nomination paper has been improperly rejected by the Returning Officer. He is therefore, entitled to get a declaration that the election of the present revision petitioner is void. That is exactly what has been done by the Designated Court and confirmed by the appellate Court (District Court). The revision is thus without any merit and it is accordingly dismissed.