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2006 DIGILAW 687 (KER)

M. Omanakutty Amma v. K. P. Mathew

2006-10-12

M.SASIDHARAN NAMBIAR

body2006
Judgment :- Petitioner was one of the candidates who submitted the nominations for the election of Constituency No. 13 of Thazhakkara Grama Panchayat. Her nomination paper was rejected at the time of scrutiny. The election conducted on 24.9.05. Respondent is the elected candidate. Petitioner filed Ext. P5 petition under section 87 of Kerala Panchayat Raj Act, hereinafter referred to as the Act, to declare the election of respondent as returned candidate is void on the ground that the nomination submitted by petitioner for the election was improperly rejected. Case of the petitioner was that she submitted her nomination paper to the Returning Officer on 5.9.05 and it was accompanied by a certificate issued by the Electoral Registration Officer authenticating that she is a voter whose name is included in the electoral roll of the said Constituency. She also submitted a detailed information in Form 2A as contemplated under section 52 (1A) of the Act and every entry therein had been filled up and the information disclosed but her nomination paper was illegally rejected on the ground that the detailed information was submitted without her signature. It is contended that the Returning Officer had permitted two other candidates to sign the detailed information contained in Form 2A at the time of receiving nomination paper and because of the personal bias of the Returning Officer against whom petitioner had earlier filed complaints, the Returning Officer did not require petitioner to affix her signature in Form 2A and therefore the rejection of her nomination paper is illegal and there is violation of proviso to Section 52 (4) of the Act as well as the instructions in the handbook and therefore the election of the respondent is liable to be set aside under section 102 (1) (C) of the Act. Respondent filed Ext. P6 objection disputing the allegations in the petition. Under Ext. P7 order, the Election Tribunal (Munsiff Court Mavelikka) dismissed the election petition holding that the rejection of the nomination paper which was submitted along with a detailed information statement in Form 2A which did not contain the signature of the petitioner is not improper or illegal and therefore the election cannot be set aside. This petition is filed under Article 227 of the Constitution of India to quash Ext. P7 and for a direction the Munsiff to dispose of Ext. This petition is filed under Article 227 of the Constitution of India to quash Ext. P7 and for a direction the Munsiff to dispose of Ext. P5 election petition afresh as provided under section 94 of the Act. The case of the petitioner is that Ext. P7 order cannot be considered an order as provided under section 100 (a) of the Act and it cannot also be deemed to be an order passed under section 100 of the Act and therefore petitioner is not required to file an appeal as provided under section 113 of the Act and a petition under Article 227 of the Constitution of India is maintainable. The case of the petitioner is that Ext. P7 order can be construed an order passed under section 100 of the Act, only if it was passed after recording of the evidence as in a suit and as no evidence was permitted to be adduced, it is not a decision on merit as provided under section 100 of the Act. It is also contended that Election Tribunal is competent to dismiss the petition before trial only under the limited grounds provided under sub section (1) of Section 93 and that could only be for the non-compliance of Section 89 or 90 or 115 of the Act and as the dismissal was not for non-compliance of any of those provisions, Ext. P7 order cannot be deemed to be an order made under section 100(a) and therefore it is not an appealable order and the remedy of the petitioner is only to approach this court under Article 227 of the Constitution of India. 2. Leaned counsel appearing for petitioner and respondent were heard. 3. The argument of learned counsel appearing for petitioner is that as Ext. P7 is not an order as contemplated under section 93(1) or a final order after trial as provided under section 100, petitioner is not required to file an appeal against Ext. P7 and she is entitled to challenge the order under Article 227 of the Constitution. Learned counsel relying on the various provisions of the Act argued that a final order could only be passed after recording evidence and at the conclusion of trial as provided under section 93 and after complying with the procedure provided under section 94 and as the Election Tribunal did not follow the procedures, Ext. Learned counsel relying on the various provisions of the Act argued that a final order could only be passed after recording evidence and at the conclusion of trial as provided under section 93 and after complying with the procedure provided under section 94 and as the Election Tribunal did not follow the procedures, Ext. P7 order is to be quashed and the Tribunal has to be directed to try the election petition and dispose the same on merit. The argument is that as the Election Tribunal has not exercised the powers and did not follow the procedure provided under the Act, and so Ext.P7 order is vitiated. 4. Learned counsel appearing for respondent relying on the decision of Apex Court in Upadhyaya Hargovind Devshanker v. Dhirendrasinh (AIR 1988 SC 915) argued that Section 113 of the Act enables any person aggrieved by an order passed under section 100 to prefer an appeal before the forum provided therein and under section 100(a) of the Act Election Tribunal is competent to dismiss an election petition and as provided under Explanation to sub section (3) of Section 93, trial of an election petition shall be deemed to commence on the date fixed for respondent to appear before the court and answer the claim or claims made in the petition and therefore Ext. P7 is an order passed by the Election Tribunal under section 100(a) of the Act and it can be challenged only by an appeal as provided under section 113 and petition under Article 227 of Constitution of India is not maintainable. It was also argued that even if Ext. P7 order was passed without following the procedure provided under the Act, the remedy of petitioner is only to challenge the order in an appeal on the ground of non-compliance with the procedures provided under the Act and a petition under Article 227 of the Constitution of India is not maintainable. It was also argued that even if Ext. P7 order was passed without following the procedure provided under the Act, the remedy of petitioner is only to challenge the order in an appeal on the ground of non-compliance with the procedures provided under the Act and a petition under Article 227 of the Constitution of India is not maintainable. It was also argued that under Article 243-O of Constitution of India, there is a bar that notwithstanding anything in that Constitution no election to any panchayats shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State and the Act provided the procedure for filing an election petition and it is a complete code in itself and an order passed by the Election Tribunal as provided under the Act can only be challenged in accordance with the procedure provided under the Act and therefore when an order passed under section 100(a) of the Act can only be challenged by an appeal as provided under section 113, the petition is not maintainable and for that sole reason election petition is to be dismissed. It was also pointed out that by incorporating Section 52 (1A) in the Act it is made mandatory that a detailed statement about the candidate in the prescribed form shall be produced and under the amended Section 102 (1) (c) (a) an election is to be declared void if the facts stated in the detailed statement under section 52 (1A) are proved to be incorrect and therefore the failure to submit a signed detailed statement along with the nomination paper is sufficient enough to reject the nomination paper and the rejection is not at all illegal and therefore the Tribunal rightly dismissed the petition. 5. Chapter X of the Act deals with disputes regarding election. Under section 87 no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter X. An election petition has to be presented on one or more of the grounds specified in Section 102 or 103 of the Act to the competent court specified in Section 88 by any candidate at such election or by any elector within the time prescribed therein as provided under section 89. Under section 88 in the case of Gramapanchayat election it is the Munsiff court having jurisdiction of the place in which the headquarters of the Panchayat is located which is the court having jurisdiction to try the election petition. Section 90 provides who shall be joined as respondents in an election petition. Section 91 provides the contents of an election petition including the procedure as to how it shall be signed and verified. Section 92 deals with the relief that could be claimed in an election petition. Section 93 deals with trial of election petitions. Section 94 provides the procedure for trial. Section 95 provides that notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered. Section 97 deals with answering of criminating questions and certificate of indemnity and Section 98 expenses of the witnesses. Section 99 enables a returned candidate or any other party in an election petition seeking a declaration that any other candidate than the returned candidate has been duly elected to be evidence to prove that election of such candidate would have been void if he had been the returned candidate and for presenting a recrimination petition calling in question his election. Section 100 deals with the orders that shall be passed at the conclusion trial. Section 101 provides the other orders that may be passed by the Court at the time of passing order under section 100. Section 102 provides the grounds for declaring an election to be void. Section 103 provides the grounds for which a candidate other than the returned candidate may be declared to have been elected. 6. An election petition can be dismissed either as provided under section 93(1) or by Section 100(a) of the Act. Section 93 of the Act reads:- “Trial of election petitions- (1) The Court shall dismiss an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 115. Explanation:- An order of the Court dismissing an election petition under this sub section shall be deemed to be an order made under clause (a) of Section 100. Explanation:- An order of the Court dismissing an election petition under this sub section shall be deemed to be an order made under clause (a) of Section 100. (2) Where more election petitions than one are presented to the Court in respect of the same election, the Court may, in its discretion, try them separately or in one or more groups. (3) Any candidate not already a respondent shall, upon application made by him to the Court within fourteen days from the date of commencement of the trial and subject to any order as to security for costs which may be made by the Court, be entitled to be joined as a respondent. Explanation-For the purposes of this sub section and section 100 the trial of a petition shall be deemed to commence on the date fixed for the respondent to appear before the Court and answer the claim or claims made in the petition. (4) The Court may upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner, as may in its opinion be necessary for ensuring a fair and effective trial of the petition but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice not previously alleged in the petition. (5) Every election petition shall be tried as expeditiously as possible and shall be disposed of within six months from the date on which the election petition is presented to the Court for trial”. Under sub section (1) the court is competent to dismiss an election petition if the election petition does not comply with the provisions of either Section 89 or Section 90 or Section 115. The provisions to be complied under section 89 are the provisions at the time of presentation of the election petition as to how and when an election petition is to be presented and what shall accompany an election petition. The dismissal for the non-compliance under section 90 could only be for the failure to make the parties who shall be joined in the petition as provided under section 90. Section 115 deals with security for costs to be deposited in court at the time of presentation of the petition in court. The dismissal for the non-compliance under section 90 could only be for the failure to make the parties who shall be joined in the petition as provided under section 90. Section 115 deals with security for costs to be deposited in court at the time of presentation of the petition in court. Under sub section (1) at the time of presenting an election petition, petitioner has to deposit the amount provided therein. The dismissal of the election petition contemplated under section 93(1) is for the non-compliance of the deposit under section 115. By enacting Explanation to sub section (1) of Section 93 an order of the court dismissing the election petition under sub section (1) shall be deemed to be an order made under clause (a) of Section 100. Clause (a) of Section 100 reads:- “Decision of the Court- At the conclusion of the trial of an election petition the court shall make an order— (a) dismissing the election petition; or. Therefore even though an order under section 93 (1) is passed at the threshold on the ground of non-compliance of Section 89, 90 or 115, before conclusion of the trial following the procedure for trial as provided under section 94, by the said deeming provision, such an order is to be treated as an order dismissing the election petition at the conclusion of trial as provided under section 100 (a). If an election petition is not dismissed under section 93 (1), the court shall try the petition following the procedure provided under section 94. Section 94 mandates that subject to the provisions of the Act and the Rules made thereunder, every election petition shall be tried by the Court, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. The proviso enables the court a discretion to refuse for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so in frivolous ground or with a view to delay the proceedings. Sub section (2) provides that subject to the provisions of the Act, provisions of Indian Evidence Act shall be deemed to apply in all respects to the trial of an election petition. Section 100 provides for dismissing the election petition under clause (a) or declaring the election of the returned candidate to be void, under clause (b) or declaring the election of the returned candidate to be void and petitioner or any other candidate to have been duly elected under clause (c). But the order so contemplated is an order at the conclusion of the trial of an election petition, following the procedure prescribed under section 94 of the Act. 7. Election petition was filed on the ground that rejection of nomination paper submitted by the petitioner was illegal. Her nomination paper was rejected for non-compliance with the provisions of Section 52 (1A). Section 52 (1A) was incorporated in the Kerala Panchayat Raj Amendment Act 13 of 1994. Clause (1A) of Section 52 reads:- “(1A) Every candidate submitting nomination under sub section (1) shall not be deemed to be qualified to be elected to fill that post unless he submits, along with such nomination, the details regarding his educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his family, liabilities including arrears due from him to any Public Sector Undertaking or Government or Local Self Government Institutions and whether disqualified for defection under the Kerala Local Authorities (Prohibition of Defection) Act, 1999, in the form and manner as may be prescribed”. While incorporating Section (1A), Section 102 of the Principal Act was also amended inserting clause (ca). By the amendment clause (ca) was added as a ground for declaring election to be void. Clause (ca) reads:- “(ca) that the details furnished by the elected candidate under sub-section (1A) of Section 52 were fake”. Therefore by virtue of Section 52 (1A) a candidate shall not be deemed to be qualified to be elected unless he submits along with such nomination the details provided therein and by virtue of Section 102(ca) if the details so furnished by the elected candidate were fake that is a ground to declare the election void. Therefore by virtue of Section 52 (1A) a candidate shall not be deemed to be qualified to be elected unless he submits along with such nomination the details provided therein and by virtue of Section 102(ca) if the details so furnished by the elected candidate were fake that is a ground to declare the election void. The detailed information to be furnished relate to the educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his family liability including arrears due from him in Public Sector undertaking Government or Local or self Government Institutions and whether he is disqualified for defection under the Kerala Local Authority (Prohibition of Defection) Act, 1999. The details are to be furnished in Form No. 2. Ext. P2, the Form 2A includes a certificate by the election petitioner with regard to the correctness of the information furnished thereunder. Petitioner has no case that along with the election petition, she submitted a completed and signed Form 2A as amended under section 52 (1A). True, there is a contention in the election petition that some of the other candidates had also submitted Form 2A without signature and they were allowed to affix their signature at the time of filing the nomination and because of the personal ill-will of the Returning Officer against petitioner she was not treated equally and was discriminated by not disclosing the mandate. Whether the allegations are sufficient grounds for non-compliance with the mandate provided under section 52 (1A) is a different question. It is also true that under section 55 (2) (b) rejection of a nomination paper by the returning officer provided are for failure to comply with any of the provisions of Section 52 or 53. The question whether it will take 52 (1A) is also a relevant aspect. 8. It cannot be disputed that the Act is a self contained Act enacted by the legislature. Article 243-O (b) of the Constitution of India mandates that notwithstanding anything contained in the Constitution, no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. 9. Article 243-O (b) of the Constitution of India mandates that notwithstanding anything contained in the Constitution, no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. 9. As declared by the Supreme Court the right to challenge an election petition is a special right conferred under a self contained special law and the scope of the petition is circumscribed by its provisions. It is not a common law right and an election petition cannot be equated with a plaint in a civil suit. (Charanlal Sahu v. Nand Kishore Bhatt (AIR 1973 SC 2364). Moreover Article 243-O commands that an election to the Panchayat shall not be called in question except in the manner provided under the Act made by the State Legislature. The question is when the Panchayat Raj is a self contained Act containing provisions for challenging an order passed by the court under the Act, before an Appellate Forum, a petitioner to an election petition is entitled to challenge such an order by recourse to a petition under Article 227 of the Constitution. 10. Apex Court in Upadhyaya’s case (supra) considered the maintainability of appeals being filed against interlocutory orders passed by the Election Tribunal constituted under the Representation of People Act. That question arose in an appeal preferred before the Supreme Court challenging order passed by the Division Bench of the High Court in an appeal from an interlocutory order passed by a single Judge in the course of trial of an election petition. The Representation of People Act do not provide for an appeal against an interlocutory order passed by the Election Tribunal in election petition. Pointing out that under section 86 (7) of the Representation of People Act every election shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which election petition is presented to the High Court for trial. Pointing out that under section 86 (7) of the Representation of People Act every election shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which election petition is presented to the High Court for trial. It was held:- “We are of the view that as regards the jurisdiction to try an election petition and the right of appeal of the parties to an election petition, the provisions of the Act (apart from the provisions in the Constitution) constitute a complete code and no other Judge or Judges other than the single Judge of the High Court who is asked to try an election petition and the Supreme Court exercising appellate powers under S.116A of the Act in respect of orders passed under S.98 or S.99 of the Act or under Article 136 of the Constitution in respect of other orders can have any jurisdiction to deal with any matter arising out of an election petition filed under the Act”. The court in Saraswathi v. Kamala (1997 (1) KLT 855) held that the provisions the Act regarding the filing of an election petition is in pari materia with the relevant provisions of the Representation of People Act 1950 and the decisions rendered under that Act too have relevance in deciding the question involved under the Act and the right to challenge an election is not a common law right but only a right conferred by the statute and in the very scheme of things a strict adherence to the requirements of statute has to be insisted upon. The Apex Court in Sathya Narain v. Dhuja Ram (AIR 1974 SC 1185) held:- “It is well settled that it (the right to challenge an election) is a special right conferred under a self contained special law and the court will have to seek answer to the questions raised within the four corners of the Act and the powers of the Court are circumscribed by its provisions. It is not a common law right and an Election Petition cannot be equated with a plaint in a civil suit”. Therefore the crucial question is whether Ext. P7 order dismissing the election petition is an appealable order and if so whether it can be challenged by a petition filed under Article 227 of the Constitution of India. It is not a common law right and an Election Petition cannot be equated with a plaint in a civil suit”. Therefore the crucial question is whether Ext. P7 order dismissing the election petition is an appealable order and if so whether it can be challenged by a petition filed under Article 227 of the Constitution of India. Section 113 provides that any person aggrieved by an order made by the court under section 100 or 101 may prefer an appeal on any question of law or fact before the District Court, if the decision is by the Munsiffs Court. Ext. P7 is definitely an order passed by the Tribunal rejecting the case of the petitioner challenging the election of respondent on the ground of rejection of her nomination paper. Rightly or wrongly the Tribunal found that the rejection of the nomination paper was not illegal as the nomination paper did not comply with the mandatory provisions Rule 52 (1A) and the petitioner did not submit a signed Form No. 2A as mandated under the Act. If that be so, it cannot be disputed that an appeal will lie against the said order. 11. The argument of learned counsel appearing for petitioner is that an order as provided under section 100 could only be passed at the conclusion of trial and the trial contemplated is after following the procedure provided under section 94 and as no evidence was recorded either documentary or oral, Ext. P7 order was not passed at the conclusion of trial and therefore it is not an order under section 100 (a) of the Act. True, Ext. P7 is not an order dismissing the petition under any of the three grounds provided under section 93 (1) and therefore it is not a deemed order under section 100 (a) as provided under Explanation to Section 93 (1). But can it be said that an order passed on merits, considering the contentions of the parties and dismissing the election petition holding that the ground alleged in the election petition is not sustainable, is not an order under section 100 (a) of the Act. It may be that without adhering to the procedures provided under the Act court passed a final order under section 100 (a). It may be that without adhering to the procedures provided under the Act court passed a final order under section 100 (a). But the question whether the order is passed after compliance with the procedures and if not whether the order is sustainable or not, is to be determined only in an appeal filed under section 113 of the Act. The question whether the order passed under section 100 (a) of the Act is bad for non-compliance of the procedure provided under section 94 of the Act is also to be considered by the appellate court in the appeal. That is definitely a ground available to any election petitioner to challenge the correctness or sustainability of the order. It cannot be said by non-compliance of the procedure and the consequential defect in the order passed under section 100 (a), it cannot be challenged in an appeal. When Ext. P7 order is passed in an election petition as provided under the Act, which is a self contained Act, in an election petition, that order is to be challenged before the Appellate Forum provided under the Act. A petition under Article 227 of the Constitution of India is not sustainable. The remedy of the petitioner is to file an appeal as provided under section 113 of the Act. Writ Petition is dismissed.