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2014 DIGILAW 655 (KER)

Musthafa v. Basheer

2014-08-13

V.CHITAMBARESH

body2014
ORDER : The short point is as to whether the petitioner is a person disqualified for being chosen as and for being a Councillor of the Nilambur Municipality. S.90(1)(j) of the Kerala Municipality Act, 1994 (‘the Act’ for short) is as fol1ows:- “90. Disqualifications of candidates:-(1) A person shall be disqualified in the following circumstances for being chosen as and for being a Councillor of a Municipality if he - (a) x x x x x (b) x x x x x (c) x x x x x (d) x x x x x (e) x x x x x (f) x x x x x (g) x x x x x (h) x x x x x (i) x x x x x (j) is in arrears of any kind due by him to the Government or to the Local Self Government Institution upto and inclusive of the previous year (otherwise than in a fiduciary capacity) 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;” The nomination of the petitioner has been rejected by the returning officer on the ground that there is arrears due by him to Wandoor Grama Panchayat which is a Local Self Government Institution. The Local Self Government Institution has been defined under S.2(21) of the Act to include also a Panchayat constituted under the Kerala Panchayat Raj Act, 1994. The nomination is liable to be rejected under S.111(2)(a) of the Act if it is found that the petitioner was disqualified as being indebted to any Panchayat. The contention of the petitioner that the dues should be to the Nilambur Municipality and the liability to any other Local Self Government Institution is inconsequential cannot at all be accepted. 2. Annexure A6 notice issued by the Special Grade Secretary of the Panchayat shows that a sum of ` 468/- was demanded from the petitioner as dues for the period from 1.4.2009 to 16.6.2009. The dues is in respect of the stage carriage bus bearing Registration No.KL-10Z 6006 owned by the petitioner for having used the bus stands of the Panchayat. The petitioner has no case that Annexure A6 notice was not served on him and cannot also raise such a contention in view of an earlier Writ Petition. The dues is in respect of the stage carriage bus bearing Registration No.KL-10Z 6006 owned by the petitioner for having used the bus stands of the Panchayat. The petitioner has no case that Annexure A6 notice was not served on him and cannot also raise such a contention in view of an earlier Writ Petition. The petitioner had challenged the notice in W.P.(C) No.13209/2009 in the capacity of the President of the Private Bus Operators Association along with its Secretary. It was clarified by the judgment as well as the order in the Review Petition therein that the demand could be sustained only in respect of one bus stand. This is because only one of the two bus stands of the Panchayat was operational and the other admittedly remained closed for maintenance work. 3. Both the courts below have uniformly found that the petitioner has used one of the two bus stands which was functional as the registered owner of the stage carriage KL-10Z 6006. Ext.A6 demand notice has not been quashed in W.P. (C) No.13209/2009 and the demand therein has been clarified as one pertaining to the bus stand which was functional. It cannot therefore be said that the petitioner has not kept arrears of any kind to the Panchayat inviting disqualification under S. 90(1)(j) of the Act. Thus the courts below have on the basis of evidence categorically held that the rejection of the nomination paper of the petitioner by the returning officer has not vitiated the election. 4. A curious contention is raised by the petitioner asserting that only the State Election Commission could reject the nomination paper whenever such a question arises. This contention is based on S. 90(2) of the Act which is as follows:- “90. Disqualifications of candidates:- (1) x x x x x (2) If any question arises as to whether the candidate has become subjected to any of the disqualifications mentioned in sub-section (1), the question shall be referred to for the decision of the State Election Commission and the decision of the State Election Commission on such question shall be final.” S. 111(2) of the Act empowers the returning officer to examine the nomination papers and reject any nomination if the candidate is found to be disqualified. The necessity to refer the question to the State Election Commission arises only if the returning officer cannot by himself come to a safe conclusion. The returning officer has in the instant case concluded that the petitioner is a person disqualified and that his nomination paper deserves to be rejected after a summary enquiry. The format of the nomination paper has little relevance when the statute is clear as regards the disqualification of a person entitled to contest as a Councillor. 5. The Election Petition filed by the petitioner whose nomination paper was rejected by the returning officer has been rightly dismissed by the Trial Court and confirmed in appeal. The courts below have not failed to exercise a jurisdiction vested in it by law as to warrant any interference in this Civil Revision Petition. Moreover 4 years out of the total tenure of 5 years as a Councillor have elapsed by this distance of time and it will be inequitable to upset the concurrent orders. The Civil Revision Petition fails. Dismissed. No costs.