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2005 DIGILAW 259 (KER)

Sivadasan, K. G. v. P. V. Sivadasan

2005-04-05

K.PADMANABHAN NAIR

body2005
Judgment :- The respondent in O.P (Election) No.3 of 2000 on the file of Munsiffs Court, Adoor is the revision petitioner. 2. The petitioner as well as the respondent contested from Ward No.10 of Kadampanadu Grama Panchayat for the election held to Local Authorities on 25-9-2000. The revision petitioner is the returned candidate. The respondent filed an Election Petition for a declaration that the election of the revision petitioner is void on two grounds: (i) The nomination filed by the respondent was improperly rejected and (ii) the nomination 6f the revision petitioner was improperly accepted overruling the objections raised by the respondent that the revision petitioner is not a member of the Scheduled Caste. 3. The short facts necessary for the disposal of the Civil Revision Petition are as follows: The revision petitioner as well as the respondent were candidates who filed nominations for contesting the election from the 10th Ward of Kadampanadu Grama Panchayat. That particular constituency was reserved for members of Scheduled Caste. The respondent is a voter in the 13th Constituency. His name is registered in the electoral roll of 13th constituency as Roll No.266, Part II. It is averred that the respondent was duly nominated to the 10th Constituency of the said Grama Panchayat but his nomination was improperly rejected by the Returning Officer. The last date for filing nomination was 1-9-2000 and the scrutiny was to be held on 2-9-2000. The respondent filed two nominations to contest from the 10th Constituency before the Returning Officer. One nomination was proposed by one Jayakumar, who was a voter from 10th Constituency and the other by one Remasan who was also, a voter from the same Constituency. The nominations also contained a declaration that the respondent belongs to a Scheduled Caste candidate, Thandan (not being Ezhava). The respondent had made security deposit also. At the 'time of scrutiny held on 2-9-2000, an objection was raised that the respondent was in arrears of some of amount to the Government of Kerala for which Revenue Recovery proceedings were initiated. According to the respondent, overruling his request to refer the matter to the Election Commission for a decision, the Returning Officer rejected his nomination. At the 'time of scrutiny held on 2-9-2000, an objection was raised that the respondent was in arrears of some of amount to the Government of Kerala for which Revenue Recovery proceedings were initiated. According to the respondent, overruling his request to refer the matter to the Election Commission for a decision, the Returning Officer rejected his nomination. It was contended that he was not disqualified to contest in the election on account of the disqualification provided under Section 34 (1) (j) of the Kerala Palkhayat Raj Act ("Act' 'for short) or under any other provision. It was specifically contended that no amount was due from the respondent to the Government of Kerala or Kadampanadu Grama Panchayat. It is admitted that in the year 1993 a Revenue Recovery proceedings was initiated against the petitioner as R.R.29/1993 of Adoor Taluk Office for realizing certain amounts stated to be due from the respondent to the State Bank of Travancore, Kadampanadu Branch as an-ears of the loan granted under the Self Employment Scheme. It is contended that loan itself was granted by the S.B.T., Kadampanadu Branch under the Self Employment Scheme sponsored by the Central Government. The Government of Kerala by order dated 7-11-1997 stayed the Revenue Recovery Proceedings against the respondent and granted installment facility. It was contended that the said order was not vacated and no notice of demand was served on the respondent after 7-11-1997. It was also contended that the respondent raised an objection regarding the candidature of the revision petitioner on the 'ground that he is not a member of the Scheduled Caste and as such he was disqualified to contest from the 10th Constituency of Kadampanadu Grama Panchayat as the same was a Constituency reserved specifically for members of Scheduled Caste or Scheduled Tribe. It was contended that the revision petitioner is a Christian and his family members and close relatives profess Christianity. It was contended that the Christian name of the revision petitioner is Johnson and his family members are members of St.Mary's Malankara Catholic Church, Thoovayoor Vadacku, Anthichira. It was averred dig the revision petitioner was acting as the Altar Boy of the said Church till June, 2000. He was the Secretary of an internal organization of the Church by name Vincent De Paul. He was also acting as the District Treasurer of Malankara Catholic Youth Movement (KCYM), Adoor Ecclesiastical District till December, 1999. It was averred dig the revision petitioner was acting as the Altar Boy of the said Church till June, 2000. He was the Secretary of an internal organization of the Church by name Vincent De Paul. He was also acting as the District Treasurer of Malankara Catholic Youth Movement (KCYM), Adoor Ecclesiastical District till December, 1999. It was also contended that the revision petitioner contested in the election to the post of District Secretary of that organisation in the year 2000-2001, but he was' defeated. It was contended that, the Christian name of the father of the petitioner was George. He was also professing Christianity and after his death, his dead body was cremated in the St. Mary's Malankara Catholic Church. It was contended that with the intention of contesting the election, he got himself enrolled his name as K.G. Sivadasan and his father's name was stated as Daivathari Gopalan in the electoral roll. It was contended that before filing the nomination, the revision petitioner fraudulently got a Caste Certificate to the effect that he is a member of Pulaya Community, a community of Scheduled Caste, though he is not a member of that community. It was contended that the result of the election has been materially affected by the improper acceptance of the nomination of the revision petitioner. Hence the petition to declare the election of the revision petitioner from the 10th Constituency of Kadampanadu Panchayat as void. 4. The revision petitioner filed an objection contending that the nomination submitted by the respondent was defective. It was contended that when the objection regarding his disqualification was raised, the respondent ought to have filed a written request to refer the matter to the Election Commission and since he had not filed any written request he is barred from approaching Court for setting aside the election. It was contended that when amounts due to an institution is sought to be recovered by invoking the provisions of the Revenue Recovery Act, the amount becomes public revenue due on land and hence that arrears is to be treated as an amount due to the State. It was contended that even as per the admission made by the respondent, after obtaining the stay from the Government he paid only one installment. It was contended that even as per the admission made by the respondent, after obtaining the stay from the Government he paid only one installment. Since he committed default in payment of the subsequent installments, the stay granted by the Government will stand automatically vacated and he is to be considered as a defaulter under Section 34(1)(j) of the Act. It was contended that the case put forward by the respondent that the revision petitioner is a Christian is not correct. It was contended that the father of the revision petitioner converted himself into Hinduism and that fact was notified in a Gazette and in the S.S.L.C. book also the caste of the revision petitioner is shown as "Hindu, Pulaya”. It is also contended that the competent authority after considering the community to which the revision petitioner belongs, had issued a certificate to the effect that he is a member of a Scheduled Caste and hence that question cannot be reagitated in an Election Petition. 5. The trial, Court after considering the evidence on record found that the nomination of the respondent was rejected improperly. It was also found that the revision petitioner is not a member of a Scheduled Caste and he is a Christian and hence the result of the election was materially affected. The trial Court set aside the election of the revision petitioner. 6. Challenging the order passed by the trial Court, the revision petitioner filed appeal as C.M.A. No. 196 of 2002 before the District Court, Pathanamthitta. The learned District Judge after reappreciating the evidence, concurred with the findings of the trial Court and dismissed the appeal. Challenging those concurrent findings, this Civil Revision Petition is filed. 7. The learned counsel appearing for the revision petitioner raised three points: (i) Respondent is not entitled to challenge the election. (ii) The finding of the lower appellate court that the nomination of the respondent was rejected improperly is not correct. (iii) The findings of both the courts below that the revision petitioner is professing Christianity and hence not entitled to contest from Ward No.10 of Kadampanadu Grama Panchayat is illegal. Point No. (i): 8. The revision petitioner is challenging the maintainability of the Election Petition on the ground that the respondent is not entitled to file an Election Petition. (iii) The findings of both the courts below that the revision petitioner is professing Christianity and hence not entitled to contest from Ward No.10 of Kadampanadu Grama Panchayat is illegal. Point No. (i): 8. The revision petitioner is challenging the maintainability of the Election Petition on the ground that the respondent is not entitled to file an Election Petition. According to him, an Election Petition calling in question any election can be presented only by a "candidate at such election or by any "elector". According to the revision petitioner, the respondent is neither a candidate at election nor an elector. It is contended that a person can be called as a candidate at election only if his nomination is found valid and accepted by the Returning Officer after scrutiny. It was contended that even according to the respondent his nomination was rejected. So, he was only a person who filed nomination and he cannot be called as a "candidate" at the election. It is argued that the petitioner is not an elector of Ward No.10, but he is a voter of Ward No.13. It is argued that Explanation to Section 89 of the Act makes it clear that to file an Election Petition, the elector must be a person who is entitled to vote at the election to which the Election Petition relates. So, according to the revision petitioner the respondent is neither a candidate nor an elector for the purpose of Section 89 and hence the Election Petition is to be dismissed at the threshold. 9. Section 89(1) reads as follows: "89. Presentation of petitions--(I)An election calling in question any election may be presented on one or more of the grounds specified in Section 102 and Section 103, to the appropriate Court as specified in Section 88, by any candidate at such election or by any elector within thirty days from, but not earlier than, the date on which the returned candidate was declared elected. Explanation.-In this sub-section, 'elector' means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or not." The word "elector' is defined in Section 2 (xv) of the Act, which reads as follows: "(xv) 'elector' in relation to a constituency (by whatever name called) means a person whose name is entered in the electoral roll of that constituency, for the time being in force, and who is not subject to any of the disqualifications mentioned in Section 17." Admittedly the respondent is a voter of Ward No.13. He is not a voter of Ward No.10 to which he contested. The Explanation to Section 89 (1) makes it very clear that an elector for the purpose of filing an Election Petition must be a person who was entitled to vote in the election to which the present Election Petition relates. Admittedly the petitioner is not entitled to vote in the election conducted in the particular Ward. So, the only question arising for consideration is whether he can be considered as a "candidate" at election. 10. Section 2 (v) of the Act defines "candidate". It reads as follows: "(v) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election." The question to be decided is whether a person whose nomination is improperly rejected can be termed as a "candidate" for the purpose of maintaining an action under Section 89 of the Act. In this connection, the provisions contained in Section 102 of the Act is very relevant. Section 102 (1) (c) of the Act provides that the result of the returned candidate can be declared to be void if the nomination of any candidate has been improperly rejected. Normally the person whose nomination happened to be rejected is the best person to challenge the result of the returned candidate on the ground of improper rejection of his nomination. If it is held that a person whose nomination was improperly rejected is not entitled to challenge the result on the ground that he was not a candidate at such election, the same will lead to an absurd result. I am of the view that while construing the word "candidate” for the purpose of Section 89 (1) of the Act a liberal and wider meaning is to be given. 11. I am of the view that while construing the word "candidate” for the purpose of Section 89 (1) of the Act a liberal and wider meaning is to be given. 11. The meaning of the word "candidate" given in the Chambers 20th Century Dictionary is: "one who offers himself for any office or honour." In The Concise Oxford Dictionary, the meaning of that word is given as: "1. a person who seeks or is nominated for an office, award, etc. 2. a person or thing likely to gain some distinction or position. 3. a person entered for an examination." So, a person who seeks office, honour or the like can be called as a candidate. A person who wants or who is ambitious or who believes himself to be qualified as a candidate can also be called as a candidate. In this connection, the meaning of the word "nomination 'is also very relevant. In the Chambers 20th Century Dictionary the meaning of the word "nomination 'is given as: "the act or power of nominating: state of being nominated." The meaning of that word given in The Concise Oxford Dictionary is: 1. the act or an instance of nominating; the state of being nominated. 2. the right of nominating for an appointment (have a nomination at your disposal)." 12. Chapter IX of Panchayat Raj Act, which contains Section's 49 to 86, deals with Conduct of Elections. Section 49 deals with appointment of dates for nominations, etc. Section 50 deals with public notice. It provides that on the issue of a notification under Section 49, the Returning Officer shall give public notice inviting nominations of candidates for such election. Section 51 deals with nomination of candidates. It reads as follows: "51. Nomination of candidates for election-Any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act: Provided that a person nominated as a candidate to fill a seat in a constituency in a Panchayat shall not be nominated as a candidate for another constituency in the same Panchayat." Section 52 deals with presentation of nomination paper and requirements for a valid nomination. Sub-section (1) of Section 52 provides that on or before the date appointed under clause (a) of Section 49, each candidate shall, either in person or by his proposer, deliver to the returning officer a nomination paper completed in the prescribed form and signed by the candidate and by an elector of the constituency as proposer. Sub-section (2) provides that if the constituency is one reserved for Scheduled Caste or Scheduled Tribe, the candidate shall not be deemed to be qualified to be chosen to fill that seat unless his nomination paper contains a declaration by him specifying the particular caste or tribe of which he is a member. Sub-section (3) provides that where the candidate is a person who, having held any office referred to in clause (k) of Section 34 has been dismissed or removed and period of five years has not elapsed since the dismissal or removal, such person dun not be deemed to be duly nominated as a candidate unless his nomination paper is accompanied by a certificate issued in the prescribed manner by the State Election Commission. Sub-section (4) provides that on the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls. The proviso to sub-section (4) deals with clerical, technical or printing error in regard to the name of the candidate or his proposer. Sub-section (5) provides that where the candidate is an elector of a different constituency he shall produce a certified copy of the relevant pages of the electoral roll. Section 53 deals with deposits. It provides that a candidate shall not be deemed to be duly nominated for election unless he deposits or causes to be deposited such sum as may be prescribed. Section 54 deals with notice of nominations and the time and place of their scrutiny. It provides that a notice of nomination containing descriptions, both of the candidate and of the proposer as contained in the nomination paper, shall be published. Section 55 deals with scrutiny of nominations. Section 54 deals with notice of nominations and the time and place of their scrutiny. It provides that a notice of nomination containing descriptions, both of the candidate and of the proposer as contained in the nomination paper, shall be published. Section 55 deals with scrutiny of nominations. Sub-section (1) provides that on the date fixed for the scrutiny of nominations under Section 49, the candidates, their election agents, one proposer of each candidate and one other person duly authorized in writing by each candidate, but no other person, may attend at the time of scrutiny. It further provides that the Returning Officer shall give them all reasonable facilities for examining the nomination papers of all candidates which have been delivered within the time and in the manner laid down in Section 52. Section 55 (2) (a) is also relevant. It reads as follows: "(2) The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination on any of the following grounds, namely: (a) that on the date fixed for the scrutiny of nominations, the candidate is either not qualified or is disqualified for being chosen to fill the seat under any of the provisions of this Act;". Sub-section (3) of Section 55 provides that if there is more than one nomination paper, the nomination of a candidate shall not be rejected on the ground that one of the nomination paper is not in order, provided there is at least one valid nomination paper. So, if the contention of the revision petitioner is accepted, the entire provisions contained in Section 55 dealing with scrutiny of nomination will become otiose. A reading of Sections 50, 51, 52, 53, 54 and 55 of the Act makes it very clear that in Section 89 the word "candidate" is used only in the sense that a person who is an aspirant or who wants to contest for election and who files the nomination paper. 13. Section 79 (b) of The Representation of the People Act defines the word "candidate". It reads as follows: "(b) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election". 13. Section 79 (b) of The Representation of the People Act defines the word "candidate". It reads as follows: "(b) 'candidate' means a person who has been or claims to have been duly nominated as a candidate at any election". Section 80 of The Representation of the People Act deals with election petitions. Section 81 of the R.P. Act deals with presentation of Election Petition. Section 81 (1) of the R.P. Act provides that the election petition may be presented by any candidate at such election or any 'elector'. 'Sections 79 (b) and 81 (1) of the R. P. Act and Section, 2 (v) and 89 (1) of the Act are similar. In Somnath Rath v. Bikram Keshari Arukh AIR 1999 Orissa 119, it was held as follows: "The expression 'candidate' used in Section 81 (1) means a person who has been or claims to have been duly nominated as a candidate at any election. Section 79 (b) of the Act is relevant in this context. Even an elector can present an election petition. Undisputedly a person whose nomination paper is rejected is a candidate. That being the position, he has locus standi to present the election petition." Since the provisions in The Representation of the People Act and the Panchayat Raj Act are similar, the same principles is applicable in the case at hand also. So there is absolutely no merit in the contention raised by the revision petitioner that since the nomination paper of the respondent was rejected by the Returning Officer he cannot be called as a candidate. 14. Another objection raised is that since the respondent did not approach the State Election Commission, he shall not be allowed lo challenge the result of the election. It is well-settled position of law that if at the time of scrutiny an objection regarding the caste of a particular candidate is raised, that matter can be referred to 'the Election Commission. If the Election Commission takes a decision on the question of disqualification, that decision shall be final. But, if no such question was referred to the Election Commission and a decision rendered, there is no statutory bar for the person whose nomination was rejected to approach the Election Tribunal contending that the rejection of his nomination was improper. If the Election Commission takes a decision on the question of disqualification, that decision shall be final. But, if no such question was referred to the Election Commission and a decision rendered, there is no statutory bar for the person whose nomination was rejected to approach the Election Tribunal contending that the rejection of his nomination was improper. Even accepting for the sake of argument that the question whether the revision petitioner belongs to a member of a Scheduled Caste/Scheduled Tribe cannot be challenged before the Election Tribunal, the respondent filed the Election Petition not on that ground alone. He has got a further case that his nomination was improperly rejected. So, there is no merit in the contention raised by the revision petitioner that the Election Petition is not maintainable. The point is answered accordingly. Point No. (ii): 15. According to respondent, his nomination was improperly rejected by the Returning Officer. It is not disputed that the nomination filed by the respondent was rejected on the ground that he is disqualified under the provisions of Section 34 (i) (j) of the Act. The revision petitioner had produced a document issued by the Tahsildar to the effect that the respondent was in arrears of amount due to the Government. Exhibit X-4 is the Requisition, No.SBT/PTARR 29/93 for recovery of the amounts. That Requisition shows that that was issued for the recovery of amount other than Public Revenue due on land to, State Bank of Travancore under loan No.TL 19/88 dated 1-11-1988 for Rs.25,000 availed from Kadampanadu Branch of State Bank of Travancore and covered by registered notice dated 16-3-1993 issued by the Manager of State Bank of Travancore. The demand notice issued in the case shows that the Section 7 Demand Notice was issued for recovery of amount due to the State Bank of Travancore, Kadampanadu Branch. The Requisition issued by the District Collector to the Tahsildar also shows that it was issued for recovery of the amount due to the State Bank of Travancore. State Bank of Travancore is a Bank registered under the provisions of the Banking Regulation Act. By no stretch of imagination an amount to a Nationalized Bank can be considered as an amount due to the Government of Kerala. The loan was availed by the respondent from the Bank. State Bank of Travancore is a Bank registered under the provisions of the Banking Regulation Act. By no stretch of imagination an amount to a Nationalized Bank can be considered as an amount due to the Government of Kerala. The loan was availed by the respondent from the Bank. At the time of availing the loan, an agreement was entered into between the respondent and the Bank by which it was agreed that any amount due to the Bank can be recovered by invoking the provisions contained in the Revenue Recovery Act. The mere fact that amounts due to a Nationalized Bank is recovered by invoking the provisions of Revenue Recovery Act will not make the same a debt due to the Government. So, the rejection of the nomination papers filed for the respondent on the ground that he was a defaulter and amounts were due from him to the Government of Kerala was improper. On that ground alone, the respondent is entitled to succeed in the Election Petition as he was not disqualified to contest the election. This point is also found against the revision petitioner. Point No. (iii): 16. Now I shall consider how far the finding that the revision petitioner is not a member of a Scheduled Caste is correct. The fact that the 10th Constituency of Kadampanadu Grama Panchayat is reserved for Scheduled Caste is not denied. Both the Courts below found that the revision petitioner belongs to Hindu Pulaya by caste, but he is professing Christian faith so that his election is void as his nomination was improperly accepted. Exhibit B-I is the S.S.L.C. Book and Exhibit B-2 is the community certificate issued by the competent forum. So, on the basis of the certificates issued by the competent authorities, the findings of the Courts below that the revision petitioner is a Hindu Pulaya does not call for any interference. Exhibits B-3 and B-5 also support that finding. According to the revision petitioner, under Exhibit B-5 his father converted into Hinduism and a Gazette 'notification was issued on 28-8-1990. The evidence on record show that by birth the revision petitioner was a Christian. Until 1990, the revision petitioner and his family members were professing Christianity. The oral evidence of P.Ws.1 to 4 is very relevant. According to the revision petitioner, under Exhibit B-5 his father converted into Hinduism and a Gazette 'notification was issued on 28-8-1990. The evidence on record show that by birth the revision petitioner was a Christian. Until 1990, the revision petitioner and his family members were professing Christianity. The oral evidence of P.Ws.1 to 4 is very relevant. P.W.1, the Post Woman, deposed that the revision petitioner is known as K.G. Johnson also and she had delivered postal articles to him in both the names. Exhibit A-1 is a acknowledgment of the postal article delivered to the revision petitioner. P.W.2 is the school-mate of the revision petitioner. He deposed that the revision petitioner belonged to Malankara Catholic Community and was working as the District Treasurer, Malankara Catholic Youth Movement and was one of the office bearers of Vincent De Paul. He also deposed that the father of the revision petitioner was also known as George and after his death the dead body was cremated in Malankara Catholic Church. P.W.3 is the Priest. He deposed that it was he who baptized the revision petitioner as per Exhibit X-1. He also deposed that on 21-2-1994 the dead body of the father of the revision petitioner was cremated in the cemetery of the Church. He further deposed that the marriage of the brother of the revision petitioner was solemnized in the Church. He also deposed that still the mother of the revision petitioner is a member of the parish of the Church. So, the evidence on record, both oral and documentary, proves beyond any reasonable doubt that the revision petitioner was professing Christianity and as such he was not qualified to contest the election. This point is also found against the revision petitioner. 17. The next question to be considered is whether the acceptance of the nomination of the revision petitioner had materially affected the result of the election. The evidence of the respondent shows that due to the improper acceptance of the nomination of the revision petitioner the result of the election was materially affected. So, the Election Petition is liable to be allowed on that ground also. 18. The learned Counsel appearing for the revision petitioner vehemently argued for a remand contending that the case was once disposed by the learned Munsiff on 7-11-2001 and dig order was set aside. So, the Election Petition is liable to be allowed on that ground also. 18. The learned Counsel appearing for the revision petitioner vehemently argued for a remand contending that the case was once disposed by the learned Munsiff on 7-11-2001 and dig order was set aside. It is argued that after the remand, learned Munsiff did not consider any of the aspects a fresh, but simply stated that the order which was set aside in appeal will form part of the subsequent order. 19. The procedure adopted by the learned Munsiff was not proper. But, I do not find any reason to remand the matter which was pending for the last about five years on a mere irregularity. The learned Munsiff as well as the learned District Judge concurrently found that the revision petitioner was disqualified to be chosen as a candidate on the date of filing of the nomination. The appellate authority considered the question whether the rejection of the nomination filed by the respondent was proper. It was found that it was improper. So, I do not find any reason to remand the case once again. 20. From what is stated above, it is clear that there is no merit in the Civil Revision Petition and it is only to be dismissed. In the result, the Civil Revision Petition is dismissed with costs. I.A.No.1357 of 2004 also shall stand dismissed.