A.V. Jayan v. P.M. Sudhakaran; M.T. Shijumon; The Returning Officer, Poothadi Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE M.N.KRISHNAN** **TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929** ## **CRP.No. 521 of 2006()** **---------------------** **CMA.32/2006 of DISTRICT COURT, KALPETTA OPE.2/2005 of MUNSIFF MAGISTRATE, SULTHAN BATHERI** **....................** ## **REVN. PETITIONER: APPELLANT/IST RESPONDENT** **-----------------------------** **A.V.JAYAN, AGED 35, S/O.VIJAYAN NAMBIAR, ALAKKUNNEL AMSOM AND DESOM, SULTHAN BATHERY, WAYANAD.** **BY ADV. SRI.P.C.SASIDHARAN SRI.O.V.MANIPRASAD** ## **RESPONDENTS: RESPONDENTS/PETITIONER AND RESPONDENTS 2 & 3** **------------------------** **1. P.M.SUDHAKARAN,AGED 52, S/O.P.MADHAVAN, POOTHADY AMSOM AND DESOM, SULTHAN BATHERY, WAYANAD.** **2. M.T.SHIJUMON,AGE NOT KNOWN, S/O.THANKAPPAN, MUKULEL HOUSE,KENICHIRA,POOTHADY AMSOM AND DESOM, SULTHAN BATHERY, WAYANAD.** **3. THE RETURNING OFFICER, G.II, POOTHADY GRAMA PANCHAYATH, TOWN PLANNER (IN CHARGE), KALPETTA, WAYANAD.** - **R3 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R1 BY ADV.SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **M.N. KRISHNAN, J.** **==> picture [338 x 59] intentionally omitted <==** ## **O R D E R** This revision petition is preferred against the judgment in CMA 32/06 of the District Judge, Wayanad acting as the Appellate Authority under the Panchayat Raj Act. The brief facts necessary are as follows. The election petitioner submitted his nomination for election to the 3[rd] Ward of Poothadi Grama Panchayat. Respondents 1 and 2 are the contesting candidates. Election was held on 26.9.05. After scrutiny the names submitted by the petitioner was returned on the ground that he was a defaulter to the Kerala State Financial Enterprises. It was also stated that revenue recovery proceedings has been initiated and there has been stay by the Hon'ble Finance Minister etc. The scrutinizing officer found that his nomination cannot be accepted as he is disqualified under Section 34(1)(j) of the Panchayat Raj Act. 2. The trial court elaborately considered the matter and held that the rejection of the nomination paper was improper and therefore declared election to the 3[rd] Ward of **CRP NO. 521 of 2006** ## -:2:- Poothadi Grama Panchayat as improper and declared as null and void. Against that decision a CMA has been preferred which also was dismissed by the learned District Judge. The learned District Judge held that the amount due to the KSFE is not an amount due to the Government and as such the disqualification under Section 34(1)(j) is not attracted and such a rejection of the petitioner's nomination was illegal and unsustainable. It is against that decision the present CRP is preferred. 3. The learned counsel for the revision petitioner has mainly canvassed two points before me, viz., (1)Whether the Munsiff Court, Sulthan Bathery has jurisdiction to try the election petition in view of Sections 88 and 89 of the Panchayat Raj Act and (2)Whether the Courts below were right in holding that the rejection of the nomination paper of the election petitioner as improper and invalid in law. ## **Points 1 and 2:** 4. The challenge is with respect to the finding of the learned Munsiff that the rejection of nomination of election petitioner under Section 34(1)(j) was improper and invalid **CRP NO. 521 of 2006** -:3:- and therefore there was an improper rejection of the nomination and hence the election is to be set aside. The learned counsel contends that the Sulthan Bathery Munsiff Court is not a Court notified to try election case as contemplated under Section 88 of the Kerala Panchayat Raj Act, 1994. Under Section 88(1)(a) the Court having jurisdiction to try election petition shall be in the case of a village Panchayat, the Munsiff's Court having jurisdiction over the place in which the headquarters or Panchayat is located. Under Section 88(2) the Government shall, in consultation with the High Court notify the appropriate courts in the Gazette. So the contention is that so far the Munsiff, Sulthan Bathery is not a notified Court by the Government and therefore the said Court has no jurisdiction to try the election petition. 5. The brief facts would reveal that at first there was one Court at Kalpetta and the Government established a Munsiff Court at Sulthan Bathery and there is no dispute that the Poothadi Grama Panchayat comes within the jurisdiction of the newly constituted Sulthan Bathery Court. So, one **CRP NO. 521 of 2006** -:4:- cannot hold that Sulthan Bathery Court is not the proper Court. When the election petition was filed, the Sulthan Bathery Court has come into being and by reading of S.88(1) (a) of the Kerala Panchayat Raj Act it is the competent Court that has jurisdiction to try the election cases from Poothadi Grama Panchayat but at the same time it has also to be stated that Government has not made any notification in consultation with the High Court notifying Sulthan Bathery as the election Court under the statute. 6. The very same subject matter has been considered by this Court in the decision reported in Ravi v. Ali Kunhu (2007 (1) KLT 1034). After elaborately considering the entire materials this Court held that sub-Section 2 of S.88 of the Act is not mandatory, but only directory whereas S.88(1) is a substantive provision while S.88(2) is not. Paragraph 19 of the judgment is extracted as follows: “This leads to the effect of the existing notification SRO No.1120/95, showing Kalpetta Munsiff's Court as an appropriate Court to try election petitions and the submission of the learned counsel for the 1[st] respondent that in view of such **CRP NO. 521 of 2006** ## -:5:- notification, the Munsiff's Court, Sulthan Bathery cannot have jurisdiction or at least could have jurisdiction only along with the Munsiff's Court, Kalpetta. As already noticed, the Munsiff's Court which has jurisdiction over the place in which the headquarters of the Panchayat is located, would alone have jurisdiction to try the election petition in relation to that Panchayat. S.87 of the Act provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Chapter X. the conjoint effect of Section 88(1) and 87, in this case, is that Munsiff's Court Sulthan Bathery has the exclusive jurisdiction to try election petitions in relation to Poothadi Grama Panchayat and no other Munsiff's Court, including the Kalpetta Munsiff's Court, would have jurisdiction to try such election petition. The continuance of the notification by the Government under S.88(2), to that extent, is of no consequence, but has become superfluous or otiose, more so because, as held above, it is not from such a notification that the authority is generated for the Court to try the election petition. Therefore, to the extent, a new Munsiff's Court or a District Court comes into being as a result of its constitution and the headquarters of any Panchayat falls exclusively within the territorial **CRP NO. 521 of 2006** ## -:6:- jurisdiction of that new Court, the competence to try election petitions in relation to that Panchayat will stand trimmed and conferred on that Court alone, even if it is one constituted after the issuance of any notification by the Government under S.88(2) and even if such notification continues to show any other Court that had territorial jurisdiction to try the election petition in relation to particular Panchayat, as an appropriate Court.” 7. So, from the detailed discussion this Court held that since Section 88(2) is not a mandatory provision but only a directory provision and under Section 88(1)(a) it is only that Court in which area the Panchayat is situated is having jurisdiction the Court found that Poothadi Grama Panchayat election can be challenged before the Sulthan Bathery Munsiff Court. 8. The learned counsel for the revision petitioner would contend that the said decision of the learned Single Judge is incorrect and without a notification under Section 88 (2) the jurisdiction cannot be conferred upon that Court and therefore any trial conducted by that Court is vitiated and it is irregular. He has also referred to the decision of this Court **CRP NO. 521 of 2006** -:7:- reported in _**Aisha Potti v. The Returning Officer (2002**_ _**(2) KLT 146)**_ and a decision rendered by me in Tr.P.C.115/07 wherein it was found that there must be notification to have jurisdiction to try the election petition under Section 88 of the Act. In both these cases the question involved was regarding the transfer. In the decision reported in _**2002 (2) KLT 146**_ the question is with respect to the trial of the case by the additional district courts. It was held by this Court that it is only a notified Court under the enactment that can try the cases. Similar dictum was followed by me in the writ petition which is referred to above. 9. But so far as this case is concerned the question is not exactly similar that came up for consideration in the other cases. Here, by formation of a new Court an area of Munsiff Court, Kalpetta has been bifurcated and Poothadi Grama Panchayat came within the exclusive jurisdiction of the Sulthan Bathery Court. Section 88(1)(a) gives the mandate that it may be tried only by the Court in which the Panchayat is situated. The other is only an enabling provision that the Government in consultation with the High Court to notify the **CRP NO. 521 of 2006** -:8:- Court. Therefore as discussed and held in _**2007 (1) KLT 1034**_ , S.88(2) is only having a directory nature and therefore one cannot hold that the Munsiff Court Sulthan Bathery has no jurisdiction to try the case. I respectfully concur with the finding of the learned Single Judge and the contention of the learned counsel for the revision petitioner is not accepted. 10. In this case I also add, it is for the first time in the revisional jurisdiction a question of jurisdiction has been raised by the learned counsel. Under Section 21 of the CPC no objection as to the place of suing shall be allowed by an appellate Court or a revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled on or before such settlement and unless there has been a consequent failure of justice. So applying the said principle also to the election petitions I feel the revision petitioner cannot be allowed to raise such a contention at this belated stage. Point No.1 is answered against the revision petitioner. 11. This point deals with the question whether the amount due to the KSFE is a dues to the Government or not. **CRP NO. 521 of 2006** -:9:- Under Section 34(1)(j) of the Kerala Panchayat Raj Act a person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, if he is in arrears of any kind due by him to the Government or the Panchayat concerned upto 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. 12. There is not much dispute that election petitioner had taken loan from the KSFE. The question of stay and other things need not detain so long for the reason if it is found that the amount due to the KSFE is not a Government dues then the question under Section 34(1)(j) will not be attracted. This Court in the decision reported in Arshad v. Nellancheri Mustaffa (2007 (3) KLT 785) held that, “A reading of S.34(1)(j) makes it clear that all types of arrears will not come under the mischief of S.34(1)(j) of the Act. It must be shown that the arrears are due either to Government or Panchayat. The petitioner had no case that any amount was due from the 1[st] respondent to the Panchayat. The question **CRP NO. 521 of 2006** -:10:- arising for consideration s whether the 1[st] respondent who was in arrears to KSFE for which he had received a demand but failed to pay the sum within the time specified in that demand notice can be treated as a defaulter under S.34(1)(j) of the Act and disqualified to contest for the election to Panchayat. It is not disputed that the KSFE is a Government undertaking. But that does not mean that arrears due to a Government undertaking is a debt due to Government. It is true that the amounts due to KSFE can be recovered by initiating recovery proceedings under the provisions of the Revenue Recovery Act. The mode of recovery is not the decisive factor. The provisions of R.R. Act are made applicable for recovery of debt due to various Government owned companies and undertakings. KSFE may be an instrumentality of State under Art.12 of the Constitution of India but it is not a Government within the meaning of S.34(1)(j) of the Act.” 13. After considering the previous decision rendered by the same Judge the learned Judge found that the amount due to the KSFE is not a Government due and therefore it will **CRP NO. 521 of 2006** ## -:11:- not attract Section 34(1)(j) of the Panchayat Raj Act. I am in respectful agreement with the said discussion and finding of the learned Judge. 14. I am also taken through the various provisions of the Revenue Recovery Act, i.e. Section 71, definition of Government etc. it will indicate that the loan due to the KSFE is also recoverable under the Revenue Recovery Act and rule 5 of the Revenue Recovery Rules makes it clear that in case of collection of amount due to the Companies other than Government is fixed at 5% and the recovery of loan by the KSFE utilizing the Revenue Recovery Act only is an enabling provision for them to collect the loan and it will not have the characteristic of the Government dues which is to attract Section 34(1)(j) of the Panchayat Raj Act. So from these discussions I hold that the learned Munsiff as well as the learned District Judge was right in holding that the rejection of the nomination under Section 34 (1)(j) was improper, illegal and therefore the election process has to be interfered with and therefore I confirm the finding of the learned Munsiff declaring the rejection of the ## **CRP NO. 521 of 2006** -:12:- nomination of the election petitioner by respondent number three as improper and therefore election held on 26.9.05 for the 3[rd] Ward of Poothadi Grama Panchayat is not proper and is declared as null and void. Communicate the substance of the order to the State Election Commissioner and the President of the Panchayat concerned immediately. ## **M.N. KRISHNAN, JUDGE.** ul/-