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2010 DIGILAW 213 (KER)

K. P. Karunakaran v. K. V. Chandran Panikkar

2010-03-11

S.S.SATHEESACHANDRAN

body2010
Judgment : 1. Revision petitioner is the returned candidate from ward No.2 of Thattacherry ward of Nileshwar Grama Panchayat in the general election held on 26.09.2005. His election was impeached by the 1st respondent, the defeated candidate, by filing an election petition as O.P(Ele.) No.12 of 2005 before the Munsiff Court, Hosdurg. Revision petitioner/returned candidate was disqualified from contesting election as he was a defaulter to a bank, namely, North Malabar Gramin Bank, Madiyan Branch, a public sector undertaking, and there was material suppression of facts in the Form 2A submitted by him with his nomination paper and thereby he had infringed and violated the mandatory requirements under Section 52(1A) of the Panchayat Raj Act was the case of the petitioner (1st respondent herein) for challenging the election of the returned candidate. The learned Munsiff, on the materials produced in the case found merit in the challenge against the election of the revision petitioner/returned candidate and accordingly his election was set aside. Appeal preferred by the returned candidate as C.M.A No.34 of 2006 was dismissed by the learned District Judge, Kasargod confirming the findings formed by the learned Munsiff. Propriety and correctness of the concurrent decision rendered as above setting aside the election of the revision petitioner/returned candidate is challenged in this revision. 2. I heard the counsel on both sides. The allegations imputed against the revision petitioner/returned candidate at the most fall only under Section 34(1)(j) and 52(1A) of the Panchayat Raj Act and in respect of both these grounds, there were no specific allegations satisfying the ingredients covered by the disqualification under the aforesaid sections is the submission of the learned counsel for the revision petitioner. It is further submitted that the 1st respondent/petitioner in the election petition has no case that Form 2A furnished by the returned candidate was a fake but only that there was omission in stating the arrears due to the bank from him constituting a violation ofSection 52(1A) of the Panchayat Raj Act. Both the courts below have not properly and correctly appreciated the facts and circumstances and also the materials produced in the case and the conclusions formed for setting aside the election of the revision petitioner are unsustainable is the further submission of the counsel. Both the courts below have not properly and correctly appreciated the facts and circumstances and also the materials produced in the case and the conclusions formed for setting aside the election of the revision petitioner are unsustainable is the further submission of the counsel. On the other hand, the learned counsel for the 1st respondent contended that the concurrent findings entered by the court below that the returned candidate was a defaulter to a public sector undertaking, a bank, and in suppressing the arrears due to that bank in his Form 2A application, he had infringed Section 52(1A) of the Panchayat Raj Act is fully supported by the materials produced in the case, and in exercise of the revisional jurisdiction no interference with the orders setting aside the application of the returned candidate is called for. 3. I have considered the rival submissions of the counsel with reference to the order passed by the learned Munsiff and also the judgment rendered by the learned District Judge in appeal. On the allegations raised in the election petition, the first and foremost question that emerges for consideration is whether by virtue of default of payment to a bank, whether the revision petitioner/returned candidate stood disqualified from contesting the election to the panchayat. Disqualification of a candidate on the ground owing to a liability or as a defaulter is covered by Section 34(1)(j) of the Panchayat Raj Act 1994 which reads thus: " Section 34 -A person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, (1)(j) - if he 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;" To come within the definition of the above clause, it must be alleged and proved that the arrears of any kind was due by the candidate to the Government or the Panchayat concerned in respect of which a bill or notice has been duly served upon him and the time for clearance of such liability or payment has already expired. In the given facts of the case, the elementary question that emerges for consideration is whether arrears, if any, due to the North Malabar Gramin Bank even assuming such arrears were due from the returned candidate would invite a disqualification under Section 34(1)(j) of the Panchayat Raj Act. To invite such disqualification, it must be shown that the liability to the North Malabar Gramin Bank on the shares of loan availed from that bank is dues from such person to the Government. It is seen the learned Munsiff after taking note of the definition of the 'public sector bank' in the Banking Service Commission Act, 1987 has not proceeded to examine whether the liability to the North Malabar Gramin Bank is dues to the Government. The North Malabar Gramin Bank is a rural bank established under the Regional Rural Banks Act, 1976. The ownership of the Bank is vested with the Government of India, Government of Kerala and Syndicate Bank. The share capital of that bank deposited by the Government of India, Government of Kerala and Syndicate Bank is in the ratio of 50:35:15 respectively. An undertaking so established under the Regional Rural Banks Act, 1976 by contribution from the Central Government and State Government and also the Syndicate Bank cannot be construed and does not fall under the term 'Government' as contemplated under Section 34(1)(j) of the Panchayat Raj Act. Since the contribution of the Government is 50 and more, no doubt it is a 'public sector undertaking' but any liability or dues of a public sector undertaking cannot invite disqualification construing it as the dues to the Government to invite the disqualification under the above Section of the Act. From the order passed by the learned Munsiff, it is seen that the allegations raised by the election petitioner with reference to the violation of the mandatory requirements in Section 52(1A) of the Panchayat Raj Act was construed as a disqualification falling under Section 34(1)(n) of the Panchayat Raj Act. Section 34(1)(n) of the Panchayat Raj Act deals with the disqualification under any other provisions under this Act. An infringement or violation of Section 52(1A) of the Panchayat Raj Act is distinct and different from a disqualification covered by Section 34(1)(n) of the Panchayat Raj Act. Section 34(1)(n) of the Panchayat Raj Act deals with the disqualification under any other provisions under this Act. An infringement or violation of Section 52(1A) of the Panchayat Raj Act is distinct and different from a disqualification covered by Section 34(1)(n) of the Panchayat Raj Act. In case there is any violation or infringement of Section 52(1A) of the Panchayat Raj Act which mandate a candidate contesting an election to furnish certain details as covered by the Section in the prescribed form with his nomination, the noncompliance thereof has to be alleged and established in what way the candidate suffered disqualification merely. By stating that a candidate being a defaulter to some bank or other concern, it cannot be contended that it amounts to a violation of Section 52(1A) of the Panchayat Raj Act and thus the candidature suffered from disqualification under Section 34(1)(n) of that Act. Non-supplying of information in the prescribed form to be furnished with the nomination paper (Form 2A) or omission to furnish such details or even stating incorrect details by themselves cannot be considered as sufficient to hold that the nomination given by the candidate is invalid or he was disqualified from contesting the election. It must be alleged and proved by such omission, incorrect statement or even suppression, in what way he had infringed the mandatory requirements under Section 52(1A) of the Panchayat Raj Act and further such allegations must be proved with cogent and convincing materials substantiating the ground for setting aside the election on one or other ground covered by Section 102 of the Panchayat Raj Act. 4. In the context, it may be profitable to refer to Section 102 of the Panchayat Raj Act. In respect of the grounds covered by Section 102(1)(a), (b), (c) and (ca) of the Act on substantiating such grounds or any of them, the election of the returned candidate would be rendered void. But so far as the grounds covered under Section 102(1)(d) of the Act, proof of the allegation covered by that sub Section is not sufficient, but, it must be further established that it has materially affected the result of the election of the returned candidate to declare his election void. But so far as the grounds covered under Section 102(1)(d) of the Act, proof of the allegation covered by that sub Section is not sufficient, but, it must be further established that it has materially affected the result of the election of the returned candidate to declare his election void. In the present case, the petitioner has not specifically adverted to in his election petition on what ground under Section 102 of the Panchayat Raj Act the election of the returned candidate has been challenged other than that the returned candidate was a defaulter to North Malabar Gramin Bank, a public sector undertaking and there was suppression of arrears in his Form 2A filed with his nomination infringing the mandatory requirements under Section 52(1A) of the Act. The question is how far the nonsupply of the details of arrears in column No.4 of Clause 3 in Form 2A of the Kerala Panchayat Election Rules 1995 would invite a disqualification or render Form 2A 'fake' resulting in declaring his election as void. The learned counsel for the respondent submitted that if at all the allegations raised and the materials tendered do not bring the case canvassed against the petitioner challenging his election as void under Section 102(1)(ca) of the Panchayat Raj Act, still on the materials, the grounds under Section 102(1)(a) and also Section 102(d)(iv) of the Panchayat Raj Act have been sufficiently proved. Reliance is also placed on the documentary evidence tendered in the case stressing that in the objection to the execution petition of the decree filed by the bank the revision petitioner/returned candidate has even set up a plea of no means. He was a defaulter to the bank was established by the materials produced and that being so, he was disqualified to fill the seat and further by suppressing material facts as to the arrears of his dues to the bank, he had infringed the mandatory requirements under Section 52(1A) of the Panchayat Raj Act which fall under Section 102(1)(a) and 102(1)(d)(iv) is the submission of the counsel. Before considering the submissions made by the counsel, it is necessary to advert to Section 102(1)(ca) of the Panchayat Raj Act on which both the courts below have practically rested their decisions to set aside the election of the returned candidate. Before considering the submissions made by the counsel, it is necessary to advert to Section 102(1)(ca) of the Panchayat Raj Act on which both the courts below have practically rested their decisions to set aside the election of the returned candidate. To make out a case under Section 102(1)(ca) of the Panchayat Raj Act it must be established that the details furnished by the elected candidate under sub Section (1A) of Section 52 were 'fake'. An omission to supply a detail in Form 2A or even a wrong statement by itself cannot render that form a 'fake'. If that omission is material which would render that form a fake, it must be specifically alleged and proved giving an opportunity to the opposite party to meet that case. In the present case, other than contending that there was violation of Section 52(1A) of the Panchayat Raj Act in nonfurnishing of details of the arrears due to the bank, there is nothing more, not even any allegation that the Form 2A furnished by the returned candidate was a fake. When that be so, the ground under Section 102(1)(ca) of the Panchayat Raj Act is totally inapplicable to the facts and circumstances presented in the case. Whether the case presented challenging the election of the petitioner, and the allegations raised, would fall under Section 102(1)(a) or 102(1)(d)(iv) of the Panchayat Raj Act C.R.P No.155 OF 2007 Page numbers has to be considered. Section 102(1)(a) as already stated is applicable only to a case where the returned candidate was not qualified or was disqualified. Disqualification covered by that sub section relate to absence of qualification for contesting the election as covered by the provisions of the Act. So far as disqualifications are concerned, it relates to various disqualifications that too spelt out by the provisions of the Act which need not be adverted to in detail. Here, on the facts presented, it has already been found that the allegations raised on the premise that the dues payable to North Malabar Gramin Bank is 'dues' to the Government is found to be unsustainable. That ground of disqualification imputed which come under Section 34(1) (j) of the Panchayat Raj Act in the given facts of the case would not come under Section 102(1)(a) of the Panchayat Raj Act. That ground of disqualification imputed which come under Section 34(1) (j) of the Panchayat Raj Act in the given facts of the case would not come under Section 102(1)(a) of the Panchayat Raj Act. Section 102(1)(d)(iv) is also inapplicable since mere omission to supply some details in Form 2A cannot be construed as noncompliance with provisions of the Act. When a specific ground under Section 102(1)(ca) is provided to impeach Form 2A filed for infringing and violating Section 52(1a) of the Act, any omission or even a wrong statement in Form 2A would give rise to a ground for election only where it is shown that by such fault or defect, it has to be treated as a fake. Any defect or omission in Form 2A will not give rise to a challenge to canvass that that form is a fake to impeach the election of the returned candidate. 5. Both the courts below have misdirected their enquiry without reference to the provisions covered by the Panchayat Raj Act and also in examining the question whether the default imputed against the returned candidate would invite a disqualification under the provisions of the Act. Conclusions formed by the courts below, it is seen, are based on misconstruing the provisions and also without reference to the legal principles applicable. Concurrent findings entered by both the court below ordering for setting aside of the election of the revision petitioner in the above circumstances are unsustainable. 6. Order of the learned Munsiff setting aside of the election of the revision petitioner/returned candidate as confirmed by the learned District Judge is set aside. The election petition filed by the 1st respondent shall stand dismissed. Revision is allowed.