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2012 DIGILAW 288 (KER)

V. v. Muraleedharan VS P. G. Shaji

2012-03-12

S.S.SATHEESACHANDRAN

body2012
Judgment : 1. The Original Petition has been filed to set aside Ext.P7 order passed by the District Judge, Thrissur in A.S. No.39/2012 arising from O.P.No.30/2010 on the file of the Principal Munsiff’s Court, Thrissur, Petitioner was a candidate in the election held on 25-10-2010 from Ward No.15 of Puthoor Grama Panchayat in Thrissur district. The respondent herein was declared as the elected candidate. Petitioner challenged the election of the respondent as the returned candidate alleging that seven persons who voted for the respondent, had exercised double voting in asmuch as casting two votes in wards/panchayath. On the materials Placed, upholding the challenge of the petitioner, seven votes cast in favour of the respondent were found void and his election was set aside. Petitioner was declared as the elected candidate. As against that decision, the respondent preferred the aforesaid appeal, A.S. No. 39/2012 referred to above. In that appeal, he applied for a stay of the operation of the order setting aside his election and declaring the petitioner as the returned candidate. Petitioner, the respondent in such appeal, filed a counter opposing the stay petition contending that the decision rendered in the election petition become effective from the date of the order and pursuant thereto he has taken oath as a member of the panchayat. Petitioner and also the appellant moved separate petitions for getting some documents from the panchayat for consideration of the petition for stay. The learned District Judge dismissing those petitions for production of documents passed Ext.P7 order directing for status quo immediately before the passing of the final order in the election petition subject to the condition imposed that the appellant/respondent in the present petition, shall not have any voting power as a panchayat member in its meetings. Correctness of Ext.P7 order is impeached in this Original Petition invoking the visitorial jurisdiction vested with this court under Articke 227 of the Constitution of India. 2. When the Original Petition came up for consideration, the respondent entered appearance. I heard the counsel on both sides. The learned counsel for the petitioner relying on Section 107 of the Kerala Panchayat Raj Act, 1994, hereinafter referred to as the Act’, contended that an order under Section 100 and 101 of the Act shall take effects as soon as it is pronounced by the court. I heard the counsel on both sides. The learned counsel for the petitioner relying on Section 107 of the Kerala Panchayat Raj Act, 1994, hereinafter referred to as the Act’, contended that an order under Section 100 and 101 of the Act shall take effects as soon as it is pronounced by the court. Pointing out that there is no similar provision as under the Representation of People Act, 1951, enabling the court which passed the order to keep in abeyance the operation of its order and also that of the superior forum when an appeal is filed to passed orders of stay the operation of the order challenged in the appeal, there is no identical provision in the Act, is the submission of the counsel. After Ext.P1 order rendered by the learned Munsiff in the election petition setting aside the election of the respondent and declaring the petitioner as the duly elected member, he has taken oath as a member of the panchayat, is the submission of the counsel. Ext.P5 certificate issued by the President of the panchayat and Exts.P6 and P7 photographs are also relied by the counsel to reinforce the submission made as above Ext. P7 order passed by the court below directing status quo ante immediately before passing of the order, at any rate, cannot be sustained as the order has already come into effect on passing of such order and, further, the petitioner has sworn to as a member in the place of the respondent, is the submission of the counsel, Reliance is placed on “Fulena Singh v. Vijay Kumar Sinha and others” ((2009) 5 SC 290) to contend that unreasonable orders of stay of operation of the order passed in election petition is unsustainable. The learned counsel relied on “Union of India and others v. Rakesh Kumar and others” ((2010) 4 SCC 50) to contend that there is no inherent right even to contest elections since there are explicit legislations over the same and, as such, when the statute command that the order passed in an election petition becomes effective on pronouncing of the order, with no power given even to superior forum to stay its operation even if a challenge is taken by way of an appeal, the direction issued by the court below for status quo ante immediately before passing of the order, in any view of the matter, is perverse and unsustainable. Per contra, the learned counsel for the respondent submitted that the absence of a provision in the Act with respect to stay of the operation of the order impugned does not interdict or place any embargo on the superior court before which an appeal is filed against such order in passing appropriate orders to keep in abeyance that operation of the order impugned which otherwise would render such appeal infructuous. There is no ground whatsoever to impeach Ext.P7 order passed by the learned District Judge, is the further submission of the counsel. 3. This court in “Padmakumar v. Unnikrishnan” (2004 (1) KLT 1097) has considered the question whether an order of stay could be passed and if so, what are its limitations in an appeal preferred under Section 113 of the Act as against an order passed under Section 100 of the Act Setting aside the election of a returned candidate in the election to the panchayat. Examining that question it has been held thus: “Once an order has come into effect, then the question if staying the order of the Munsiff’s Court does not arise, since such stay will be contrary to Section 107 of the Act. At the same time, in order to preserve the right of parties, until a final decision is rendered in the appeal, it will be open to the appellate authority to pass such orders as it thinks fit, at the same time not in violation of Section 107 of the Act.” A blanket order of stay of the operation of the election tribunal passed under Section 100 of the Act as such is not permissible. However, the statutory mandate under Section 107 of the Act indicating that the decision rendered shall come into effect on pronouncing of the order with no enabling provision in the Act specifically conferring authority on the appellate court to pass any order of stay does not indicate that the appellate court cannot pass interim orders in appeal with respect with respect to the execution of the order impugned. The decision/order of the court below under Sections 100 or 101 of the Act shall take effect as and when it is pronounced by the court does not interdict the appellate court in passing appropriate orders over further steps in the implementation of such order. There is no prohibition as such in the Act preventing it from passing orders as are necessary for continuance of the state of affairs which prevails immediately after passing of the order subject to such conditions as required. An appeal against the order of Tribunal is nothing but an extended continuation of the election petition with the appellate court empowered to reappreciate the evidence on record and if so found essential to correct, rectify, and set aside the order challenged. An appeal against the order setting aside an election under Sections 100 and 101 of the statutory right given to the aggrieved person under Section 113 of the Act. For the reason that Section 107 of the Act states that the order of the court below shall take effect on pronouncement of its order and also no enabling provision is made in the statute empowering the appellate court to stay the operation of the order impugned, it does not follow that the appellate court is totally denuded of authority to pass such orders with such conditions as required to keep the appeal alive, which otherwise, for all practical purposes, would become infrucutuous. Assuming that then appellate court has no authority to pass even conditional orders during the pendency of the appeal as regards the operation of the order challenged in such appeal, then, the result will be that even if the appeal is allowed in fovour of the aggrieved person it could be contended that restitution of status quo ante before passing of the order of the tribunal cannot be ordered as there is no statutory provision enabling the appellate court to do so. Likewise, on setting aside of an election of a returned candidate by the order of the tribunal in the event of any casual vacancy arising thereof, unless there is any order from the superior forum in the appeal challenging the order of the Tribunal, the election commission will be bound to issued notification for conducting election to fill up such casual vacancy. If that follows and the casual vacancy is filled up before the appeal is heard and disposed of, then that appeal will be rendered infructuous. The right of the aggrieved party to impeach the correctness of the order of the Tribunal by way of an appeal under Section 113 of the Act will be rendered nugatory and meaningless if the ‘coming into effect of the order’ of the Tribunal as under Section 107 of the Act is interpreted and understood as barring the jurisdiction of the appellate court from passing appropriate orders in the appeal against the order impugned, which are necessary to safeguard the ends of justice and also a fair disposal of the appeal on its merits. 4. Section 114 of the Act lays down the procedure and the preceding one, Section 113, the right of appeal against the order or tribunal on any question of law or fact. Procedure in appeal covered by Section 114 of the Act must be given a liberal interpretation to hold that the appellate court is empowered to pass such orders as are necessary for effective disposal of the appeal safeguarding the interest of justice. Its powers are not curtailed by any provision under the Act. True, a blanket stay of operation of the order of the tribunal having regard to Section 107 of the Act is not permissible. Howerver, as indicated, such orders as are necessary for an effective disposal of the appeal, limiting the operation of the order impugned, can be passed by the appellate court. 5. The decisions relied by the learned counsel for petitioner, both of them, have no application to the facts and circumstances presented in the case. In Fulena Singh’s case, sustainability of an interlocutory order staying further proceedings in the election petition the trial of which was not over without assigning reasons was held by the apex court as unsustainable. 5. The decisions relied by the learned counsel for petitioner, both of them, have no application to the facts and circumstances presented in the case. In Fulena Singh’s case, sustainability of an interlocutory order staying further proceedings in the election petition the trial of which was not over without assigning reasons was held by the apex court as unsustainable. That is not the fact situation in the present case where challenge is against the interim order passed in an appeal against the final order disposing an election petition under Section 113 of the of the Act. Similarly, the question considered and decided in Rakesh Kumar’s case was different, in which whether the appellate court has power to grant a stay of operation of the order of the tribunal was not a matter in issue, and hence that decision has no significance in the present case. 6. Of course, there is some force in the submission made by the counsel for the petitioner that the order of the learned District Judge directing “to keep status quo as on immediately passing of the impugned order”, while imposing some restrictions, is nor proper and correct. Statutory mandate under Section 107 of the Act is inviolable and the court cannot bye pass it also. However, respecting the statutory mandate that the order will become effective from such date, the court can stay further steps further steps in continuation thereof in the appeal preferred against the order of the election tribunal. Even if election of the returned candidate impeached has been set aside and the petitioner declared as elected, the order as such coming into effect would not anyway interdict the appellate court in passing orders restraining or prohibiting the successful petitioner from taking oath as a member or such other orders enabling the returned candidate previously declared in the election, who had been sworn in as a member of the panchayat, to continue as a member of the panchayat, but, imposing such condition having regard to the statutory mandate as aforesaid. 7. I am not expressing any opinion on the rival case presented by the parties with respect to the assumption of charge as a member by the petitioner after passing of the order impugned in the appeal. If at all it is germane in any way for disposal of the appeal it can be canvassed by them at the appropriate stage. I am not expressing any opinion on the rival case presented by the parties with respect to the assumption of charge as a member by the petitioner after passing of the order impugned in the appeal. If at all it is germane in any way for disposal of the appeal it can be canvassed by them at the appropriate stage. So much so, in modification of Ext.P7 order, it is ordered that the respondent can continue to discharge functions as a member, but, with condition that he will not have any voting right not collect any remuneration for the sitting of the panchayat meeting or any of its committees, till disposal of the appeal. Subject to the modification of Ext.P7 order as indicated above, the Original Petition is closed with a direction to the court below to dispose the appeal as expeditiously as possible, at any rate within a period of four months from the date of receipt/production of a copy of this judgment. Send a copy to the court concerned forthwith.