Abdul Azeez T.A. v. Saidalavi K. and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 5TH DAY OF MARCH 2018 / 14TH PHALGUNA, 1939** **OP(C).No. 170 of 2018** **-------------------IA NO. 1802 OF 2017 IN AS NO. 181 OF 2017 OF DISTRICT COURT, PALAKKAD** **--------** **PETITIONER :** **----------** **ABDUL AZEEZ T.A. S/O LATE T.M.ABDULKAREEM, AGED 51 YEARS, RESIDING AT 32/332, SAINABA MANZI, PUDUPPALLI STREET, PALAKKAD.** **BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN** **RESPONDENTS : -----------** ## **1. SAIDALAVI K.** **S/O KADERMOLLA, RESIDING AT 31/67, NAHANAS MANZIL, MASJEED STREET, POOLAKKAD, NOORANI POST, PALAKKAD-678 004.** ## **2. KAJA HUSSAIN** **S/O MOHAMMED, RESIDING AT 31/439(10, SHALU MANZIL, POOLAKKAD, NOORANI} POST, PALAKKAD -678004.** ## **3. JALEEL** **S/O MUHAMMED, RESIDING AT 31/910, VAYANA SHALA ROAD, POOLAKKAD, NOORANI POST, PALAKKAD-678004.** ## **4. NOUSHAD.T.K** **ADVOCATE, S/O LATE T.H.KAMAL, RESIDING AT SALAMATH NAGAR, NEAR CIVIL STATION, PALAKKAD-678001.** ## **5. LAKSHMANAN K** **S/O LATE KRISHNA MENON, RESIDING AT APARNA NIVAS, SHIVAJI ROAD, VADAKKANTHARA, PALAKKAD-678012.** **OP(C).No. 170 of 2018 (O) -------------------------** ## **6. SATHEESH.S** **S/O LATE SUNDARAN, RESIDING AT 27/764, SAKTHI NAGAR, MELAMURI, VADAKKANTHARA, PALAKKAD-678012.** **7. THE RETURNING OFFICER WARD NO.31, PUDUPPALLYTHERUVU, PALAKKAD, SAJEEV, EXE. ENGINEER, PWD BUILDING DIVISION, PALAKAKD-678004.** **R1 BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE** **R7 BY SRI.MURALI PURUSHOTHAMAN, SC,** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp/ 09.3.2018** **OP(C).No. 170 of 2018 (O) -------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**| |---| |**-----------------------**| |**EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN E.O.P.NO.100 OF 2015**| |**OF THE COURT OF THE MUNSIFF'S (PRINCIPAL),**| |**PALAKAKD.**| |**EXHIBIT P2 TRUE COPY OF I.A.NO.1802 OF 2017 IN A.S.NO.181 OF 2017**| |**OF THE COURT OF THE DISTRICT COURT-V, PALAKKAD**| |**EXHIBIT P3 TRUE COPY OF COUNTER STATEMENT TO IA NO. 1802 OF**| |**2017 IN A.S.NO.181 OF 2017 OF THE COURT OF THE**| |**DISTRICT COURT-V, PALAKKAD.**| |**EXHIBIT P4 TRUE COPY OF ORDER IN IA NO. 1802 OF 2017 IN**| |**A.S.NO.181 OF THE COURT OF THE DISTRICT COURT-V,**| |**PALAKKAD.**| |**EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DT. 13/10/2017 OF**| |**COURT OF THE MUNSIFF'S (PRINCIPAL), PALAKKAD.**| |**RESPONDENT'S EXHIBITS :**<br>**NIL.**| |**//TRUE COPY//**| |**P.A. TO JUDGE**| **bp/ 09/3/2018** ## **ALEXANDER THOMAS, J** . ------------------------------------------------- O.P.(C) No. 170 of 2018 ------------------------------------------------Dated this the 5[th] day of March, 2018 ## **JUDGMENT** The main prayer in this Original Petition (Civil) filed under the enabling provisions of Article 227 of the Constitution of India is as follows : “To set aside Ext.P4 order passed in I.A. NO.1802 of 2017 in A.S. No.181 of 2017 of the District Court-V, Palakkad and dismiss Ext.P2 application in the interest of justice.” 2. Heard Sri.S. Sreekumar, learned Senior Counsel instructed by Sri.S. Ananthakrishnan, learned counsel appearing for the petitioner and Sri.P.B. Krishnan, learned counsel appearing for the 1[st] respondent. 3. The election of the 1[st] respondent herein as a member of the Palakkad Municipality was challenged by the petitioner herein by filing Election O.P. No.100 of 2015 before the Munsiff's Court, Palakkad in terms of the provisions contained in Section 163 and 178 of the Kerala Municipality Act, 1994. The impugned election of the 1[st] respondent herein was set aside by the Munsiff's Court, Palakkad in the said election petition filed by the petitioner OP(C) : 170 of 2018 -:2:- herein and over and above that the petitioner herein was declared to have been duly elected to the said office of the Municipality. 4. Aggrieved by the said judgment in the election petition, the 1[st] respondent had filed A.S. No.181 of 2017 before the District Court-V, Palakkad and along with the said appeal, the 1[st] respondent had also filed an application for stay of the operation of the impugned judgment of the court below concerned as I.A. No.1802/2017 in the said Appeal Suit. The lower appellate court has passed the impugned Ext.P4 order on that interlocutory application. The operative portion of it contained in the last paragraph of the order which reads as follows : “29. Upon hearing the submissions of both sides and by applying the dictum laid down in Muralidharan's case (supra), I am of the view that there are sufficient grounds for granting stay of operation of the order of the court below. I am satisfied that if the stay is not granted substantial loss may result to the appellant/first respondent. Hence, the I.A. is allowed subject to the following conditions that: the appellant, Saidalvi can participate in the proceedings of the municipal councils and can cast his vote but he shall not be entitled to receive any remuneration for the same till the disposal of the appeal. The operation of the order of the court below in EOP No.100/2015 is stayed till the disposal of the appeal subject to the above condition. OP(C) : 170 of 2018 ## -:3:- In the result, i) I.A. No.1802/2017 is allowed. ii) The operation of the order of the court below in EOP No.100/2015 is stayed till the disposal of the appeal subject to the following condition iii) The appellant, Saidalvi can participate in the proceedings of the municipal councils and can cast his vote but he shall not be entitled to receive any remuneration for the same till the disposal of the appeal.” 5. It is this interim direction which is under challenge in this OP(C) filed before this Court. This Court while entertaining this OP(C) had admitted the matter and passed an interim order dated 19.01.2018 which reads as under : “Admit. 2. Sri.Murali Purushothaman, learned Standing Counsel for the Kerala State Election Commission, takes notice for R7. Issue notice by speed post to respondents 1 to 6, returnable within two weeks. The petitioner will also serve notices on R1 to R6 through the Advocates who appeared for those parties before the lower appellate court concerned and file memo evidencing such service of notice. 3. Pending consideration of the prayers in this Original Petition (Civi), it is ordered in the interest of justice that the operation and enforcement of the impugned Exhibit-P4 order dated 14.11.2017 on I.A.No.1802 of 2017 in A.S.No.181 of 2017 on the file of the Additional District OP(C) : 170 of 2018 ## -:4:- Court-V, Palakkad, will remain stayed to the limited extent it permits the first respondent herein to cast vote as a member of the Palakkad Municipal Counsel. It is made clear that in all other aspects, Exhibit-P4 order is not interdicted by this Court through this order. This interlocutory order will be in force for a period of five weeks.” 6. This Court in a similar case in **Muraleedharan V.V. v. P.G. Shaji** [2012 (2) KLT 180 = ILR 2012 (2) Ker. 113 = 2012 (2) KHC 209] has held that sufficient powers are available for the appellate court to pass necessary interim orders in such election matters as can be seen from paragraphs 4 and 6 of the said judgment which read as follows : “4. S.114 of the Act lays down the procedure and the preceding one, S.113, the right of appeal against the order of Tribunal on any question of law or fact. Procedure in appeal covered by S.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 balanket stay of operation of the order of the tribunal having regard to S.107 of the Act is not permissible. However, 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. xx xx xx xx OP(C) : 170 of 2018 ## -:5:- 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 immediaely passing of the impugned order”, while imposing some restrictions, is not proper and correct. Statutory mandate under S.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 in continuation thereof in the appeal preferred against the order of the election tribunal. Even if the 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 conditions having regard to the statutory mandate as aforesaid.” 7. Ultimately in the said judgment this Court had modified the interlocutory order passed by the lower appellate court by ordering that the respondent therein could continue to discharge functions as a member, but with a condition that he will not have any voting right nor collect any remuneration for the sitting of the panchayat meeting or any of its committees, till disposal of the appeal. Paragraph 7 of that judgment reads as follows : OP(C) : 170 of 2018 ## -:6:- “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 its 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 nor collect any remuneration for the sitting of the panchayat meeting or any of its committees, till disposal of the appeal.” 8. In the light of the above said aspects, this Court is of the considered view that this OP(C) need not be kept pending any longer. Hence, it is ordered in the interest of justice that impugned Ext.P4 order dated 13.102017 rendered by the lower appellate court in I.A. No.1802 of 2017 in A.S. No.181 of 2017 will stand modified, by directing that Clauses i and ii of the last paragraph of Ext.P4 order will stand confirmed, where as Clause iii of the last paragraph of Ext.P4 order will stand modified by directing that the petitioner could take part in the meetings of the Municipal Council and sub-committee meetings with a rider that he shall not have the right to vote and he shall not draw his remuneration/allowances, if any, until the conclusion of the election appeal. Needless to say that in case the 1[st] respondent herein ultimately succeeds in the OP(C) : 170 of 2018 ## -:7:- said appeal, then it will be open to him to claim all such remuneration/allowances as the case may be. Learned Senior Counsel appearing for the petitioner would also submit that this Court may issue direction for early final disposal of A.S. No.181/2017, pending on the file of the lower appellate court. 9. Having regard to the ensuing summer vacation, it is ordered in the interest of justice that the lower appellate court concerned will take all reasonable measures to ensure early final disposal of AS No.181/2017 without much delay, preferably well before the end of August, 2018. The petitioner will produce a certified copy of this judgment before the lower appellate court as well as before the Munsiff's Court, Palakkad, for necessary information. With the above observations and directions, this Original Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ttb