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2009 DIGILAW 678 (KER)

S. Kala v. K. S. Naina

2009-07-24

S.S.SATHEESACHANDRAN

body2009
Judgment : The revision is directed against the judgment dated 20.2.2009 in an election appeal No.3/2008 passed by the learned District Judge, Thiruvananthapuram. The election of the petitioner, the returned candidate, from ward No.10 of Aalampotta constituency in Neyyattinkara Municipality, reserved for scheduled caste woman, was challenged by the first respondent, a defeated candidate contending that the petitioner belong to scheduled tribe community and not scheduled caste. Apart from the petitioner and the first respondent, second respondent was also a candidate for the election to the constituency held on 24.9.2005. Petitioner, admittedly, got majority of votes than the other two candidates, and she was declared duly elected. The challenge against the election of the petitioner by filing O.P. (Ele).No.29/2005 before the Munsiff Court, Neyyattinkara, after trial was upheld by the learned Munsiff by order dated 31.5.2008 setting aside the election of the petitioner holding that she being a member of scheduled tribe was not competent to contest or be elected from the constituency reserved for scheduled caste. Petitioner preferred an appeal as Election Appeal No. 3/2008 challenging the order of the learned Munsiff and, after hearing both sides, the learned District Judge concurred with the findings arrived by the court below and upheld the decision that she was disqualified to contest or be elected from the reserved constituency for scheduled caste. That decision is now impugned in the present revision. 2. I heard the learned counsel on both sides. 3. The fulcrum of controversy emerging for adjudication in the revision lies within a narrow campus and if only the petitioner is able to establish that the concurrent finding passed by the inferior courts suffers from any jurisdictional infirmity resulting in manifestation of injustice then only it is possible to interfere with the order/judgment passed by the inferior courts. The learned counsel for the petitioner raised two fold contentions before me to impeach the correctness of the decision rendered by the lower appellate court, in election appeal No. 3/2008, whereby the learned District Judge concurring with the decision of the learned Munsiff held that the petitioner was disqualified to contest or be elected from a constituency reserved for schedule caste. Before adverting to the contentions raised by the learned counsel for the petitioner it has to be stated that there is no dispute that the petitioner belong to scheduled tribe community and not a member of scheduled caste community. Before adverting to the contentions raised by the learned counsel for the petitioner it has to be stated that there is no dispute that the petitioner belong to scheduled tribe community and not a member of scheduled caste community. So much so, the materials tendered by the first respondent to establish that essential ingredient to substantiate a case that the petitioner is disqualified need not be examined by this Court. Now, with respect to the challenge raised by the learned counsel as already stated they are two fold, first among them relate to the service of copies of the election petition to the petitioner by the first respondent. It is the case of the petitioner that the copies of petition served were not duly attested as contemplated under the provisions of the Municipalities Act, applicable to election petitions and, so much so, it was fatal to the entertaining of the election petition. I find the challenge so raised had been pressed into service before both the courts below and found against in the light of the judicial pronouncements rendered by this Court as well as by the Apex Court. The Apex Court had held, it is only a curable irregularity and it will not be fatal in entertaining an election petition. I need not refer to the judicial pronouncement with respect to the challenge raised because it is seen they have been referred to in the decision rendered by both the courts below repelling that contention. The next challenge raised by the learned counsel for the petitioner to assail the judgment of the court below is that the first respondent who filed the election petition did not raise objection that the petitioner being a member of the scheduled tribe was disqualified to contest from a constituency reserved for scheduled caste at the appropriate time before the returning officer as provided under Section 111 of the Municipalities Act. Section 111 of the Municipalities Act is analogous to Section 36 of the Representation of Peoples Act, 1950. The question posed for consideration is whether the failure of the first respondent to raise the challenge before the returning officer as contended would debar her from pressing such a challenge by way of an election petition after the election process is completed. The question posed for consideration is whether the failure of the first respondent to raise the challenge before the returning officer as contended would debar her from pressing such a challenge by way of an election petition after the election process is completed. Analysing the question the apex Court in Harikrishna Lal v. Babu Lal Marandi (2003 (8) SCC 613) held that the non-raising of that challenge before the returning officer would not in any way disentitle a person who contested the election to challenge the election of the returned candidate by filing an election petition as provided by the Act and Rules. In paragraph 17 of the above judgment, the apex Court has observed thus: "17. It is true that mere failure of the appellant in raising objection to the validity of the nomination paper filed by the respondent before the Returning Officer does not stop or exclude the election petitioner from raising a plea before the High Court that the nomination paper filed by the respondent was liable to be rejected or could not have been accepted. The enquiry which the Returning Officer has to make under Section 36 of the Act is summary in character, which he may make as he thinks necessary either suo motu or on an objection being raised. Whether such an enquiry was held or not and if held, whatever may have been the result, the propriety of rejection or acceptance of a nomination paper can always be raised by way of election petition. (See N.T.Veluswami Thevar v. G. Raja Nainar). But the fact remains that it will be for the election petitioner to raise necessary pleadings and, if traversed, to substantiate the same by adducing the necessary evidence. This the election petitioner has failed to do before the High Court. The inevitable consequence of the election petition being dismissed has rightly followed." So much so, that challenge raised by the counsel for the revision petitioner also fails. Reliance is placed by the learned counsel in Sasidharan v. Election Commission of India (2009 (2) KHC 743) to contend that it was a challenge which should have been raised before the Returning Officer. I am afraid, that decision will not any way assist the revision petitioner because the facts involved in that case would show that the challenge was raised when the election process was set on before the election was held. I am afraid, that decision will not any way assist the revision petitioner because the facts involved in that case would show that the challenge was raised when the election process was set on before the election was held. It was in that context, this Court held the petitioner had ample opportunity to raise that challenge before the Returning Officer. Once the election was over and when a disqualification as covered by this case is provided as a sufficient ground for setting aside the election of a returned candidate an election petition filed canvassing such a ground cannot be defeated by raising a challenge that the petitioner therein should have raised that challenge before the Returning Officer. In fact he could have raised that challenge at the time of scrutiny of the nominations, if it was known at that point of time, but, non-raising of that challenge then, will no way affect the entertain ability of the election petition as it is a ground specifically provided under the Municipalities Act to set aside the election of a returned candidate. As observed by the apex court in the decision referred to above the enquiry by the returning officer, which is summary in nature, relate to the reception of the nomination officer, and whatever be his decision in such enquiry, if the reception of nomination paper is improper, after the election process if the candidate covered by that nomination paper is elected as the returned candidate, then, definitely, his election can be impeached by an election petition as the propriety or correctness of reception or rejection of a nomination paper is one among the grounds for doing so. 4. The disqualification imputed goes to the root of the election of the revision petitioner since the constituency was reserved for a particular community, scheduled caste as mandated by Article 243(T) of the Constitution of India. Any infringement of the constitutional mandate which is spelt out specifically as a ground for disqualification cannot be overcome on technical objection as it has wider ramifications. The orders/judgment passed by the courts below declaring the election of the revision petitioner as void, and setting aside her election, in the given facts of the case deserve only to be upheld, and I do so. Revision is dismissed, directing both parties to suffer their costs.