Research › Search › Judgment

Kerala High Court · body

2002 DIGILAW 94 (KER)

Sulekha Ibrahim v. George Thomas

2002-02-07

N.KRISHNAN NAIR

body2002
Judgment :- N. Krishnan Nair, J. The petitioner was elected to the Pallarimangalam Panchayath from Ward No. 3. The respondent herein filed a petition under the Kerala Panchayath Raj Act before the Munsiff, Moovattupuzha to declare the petitioner's election as invalid and void and also to declare that one Smt. Iysha Abdul Rasheed has been duly elected from Ward No. 3 of the Panchayath. The petitioner challenged the maintainability of the Election Petition on the ground that all the candidates who were duly nominated to the election were not joined the Election Petition and therefore, the Election Petition is liable to be dismissed. The learned Munsiff by the impugned order overruled the objection and held that in view of the provisions contained in Section 90 of the Kerala Panchayath Raj Act, the Election Petition is not liable to be dismissed for non-joinder of necessary parties. The order is seriously challenged in this appeal. 2. The learned counsel for the petitioner strongly contended that the lower court should have dismissed the petition in view of the provisions contained in Rule 5(3) of the Kerala Panchayaths (Decision of Election Disputes) Rules, 1963. He also placed much reliance on the decision of this Court reported in Joseph v. B.D.O., Angamaly (1989 (2) KLT 411). On the other hand, the learned counsel for the respondent supported the order of the court below and urged that there is no ground for interference. 3. The question arising for consideration is whether the candidates who were validly nominated but withdraw before the date for withdrawal should be made parties to an election Petition filed under the Kerala Panchayath Raj Act when the prayer in the petition is for a declaration that the election of the returned candidate is void and also for a declaration that the petitioner or any other candidate has been duly elected. No doubt, by virtue of the provisions contained in Section 284 of the Kerala Panchayath Raj Act, the Rules in existence prior to the coming into force of the Act shall be in force in the absence of specific Rules framed under the Act. Therefore, the Kerala Panchayaths (Decision of Election Disputes) Rules, 1963 is applicable in this case to the extent it is not repugnant to the provisions of the new Act. Therefore, the Kerala Panchayaths (Decision of Election Disputes) Rules, 1963 is applicable in this case to the extent it is not repugnant to the provisions of the new Act. Rule 5(3) of the Kerala Panchayaths (Decision of Election Disputes) Rules, 1963 requires that the 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". As per sub rule 8 of Rule 5, the Munsiff is bound to dismiss the Election Petition, if sub rule 3 is not complied with. In the decision in Joseph v. B.D.O., Angamaly (supra) this court held that candidates who were validly nominated, but withdrew before the dare for withdrawal should be made parties to the Election Petition and if all the candidates who were nominated to the election are not joined in the Election Petition, the petition is liable to be dismissed. The decision referred to above was rendered under the Kerala Panchayaths Act, 1960 and therefore, the decision is not applicable to this case. Section 90 of the Kerala Panchayath Raj Act reads as follows : "Parties to the petition-A petitioner shall join as respondents to his petition, -(a) where the petitioner, in addition to claiming a declaration that the election of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, the returned candidate; and (b) any other candidate against whom allections of any corrupt practice are made in the petition". It is clear from Section 90 of the Kerala Panchayath Raj that only the candidates who contested the election are the necessary parties to an Election Petition when the prayer is for a declaration that the election of returned candidate is void and that the petitioner or any other candidate has been duly elected. It is clear from Section 90 of the Kerala Panchayath Raj that only the candidates who contested the election are the necessary parties to an Election Petition when the prayer is for a declaration that the election of returned candidate is void and that the petitioner or any other candidate has been duly elected. The learned counsel for the petitioner referred to Section 2(b) of the Kerala Panchayaths (Decision of Election disputes) Rules which defines a candidate "as a person who has been or claims to have been duly nominated as a candidate at any 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." According to the learned counsel, the word 'candidate' must include a candidate who had withdrawn his candidature also. I cannot agree. There would have been some force in the contention of the learned counsel for the petitioner if instead of the words 'contesting candidates' the word 'candidates' were used in the first limb of Section 90 of the Kerala Panchayath Raj Act. In view of the express provision in Section 90 of the Act. Rule 5(3) of the Kerala Panchayaths (Decision of Election Disputes) Rules has no relevance. A statutory rule cannot enlarge the meaning of the sections if a rule goes beyond what the section contemplates, the rule must yield to the statute. (See Central Bank of India v. Their workmen (AIR 1960 s.c. 12). In this connection, it is also relevant to note that as per Section 284 of the Kerala Panchayath Raj Act the Rules made under the Kerala Panchayat Act, 1960 are applicable to the Kerala Panchayat Raj Act, 1994 only to the extent which is not inconsistent with the provisions in the new Act. For the reasons stated above, I find that all the nominated candidates who withdrew their nominations before the date of withdrawal are necessary parties to an election Petition filed before the lower court and therefore, the petition is not bad for non-joinder of necessary parties. I see no infirmity in the order of the lower court. This revision is groundless and is liable to be dismissed. In the result, the revision is dismissed, confirming the order of the lower court. But, I make no order as to costs.