Jose v. Suresh Kallamkandy and others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2022-10-27
Court Decision / Holding: The High Court, after perusing the pleadings and materials on record, refused to interfere with Ext. P3 and held that the election petition cannot be adjudicated at the threshold; a full trial is required to resolve the rival pleadings. Consequently, the original petition is dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Jose

Respondents

Suresh Kallamkandy
Lakshmi
Vijayakumar
Vijayakanth
Sasi

Legal Representation & Advocates

Counsels for Petitioners

• P. K. Varghese
• M. T. Sameer
• M. B. Shyni
• P. S. Anishad
• K. R. Arun Krishnan
• Jerry Mathew Reghu
• Sreedharan
• Rameez M. Azeez

Counsels for Respondents

• R. Divakaran
• Ramakrishnan
• Binoi George (Cherukara)

Case Synopsis & Summary

This Kerala High Court (Single Judge) proceeding arises from an election petition challenging the validity of the election of Jose to Ward No. 6, Kaithakolli, in Thavinjal Panchayath, held on 10.12.2020. The first respondent filed OP(Election) No. 3/2021 alleging that Jose failed to disclose in Form 2A the details of loan liability to the Kerala State Housing Board, and that he had arrears and a history as a President of a Cooperative Society who obtained advances for five works that were not completed or disclosed. The petitioner opposed these allegations, contending that omission to mention arrears in Form 2A is not a ground to invalidate an election petition and that an amount due to a Housing Board is not an “arrear to the Government” covered by the Act; he also argued that the matter falls under the prescribed form and that there was no proper verification under Section 90(1)(c) of the Kerala Panchayath Raj Act. The trial court, selecting that the issues are matters of evidence, dismissed the election petition by Ext. P3, and rejected the preliminary objection. The High Court upheld the trial court’s approach, noting the petition requires full-fledged trial rather than resolution on pleadings, and declined to interfere under Article 227, dismissing the original petition.

Provisions of Law Cited

Section 52(1)(a) of the Kerala Panchayath Raj ActSection 90(1)(c) of the Kerala Panchayath Raj ActOrder 7 Rule 11A of the Code of Civil ProcedureArticle 227 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s advocate contends that under Section 52(1)(a) of the Kerala Panchayath Raj Act, return candidates are required to furnish only the details in the prescribed form; missing Form 2A details on arrears cannot ground electoral challenge. He submits that dues to the Kerala State Housing Board are not government arrears and the declaration in Form 2A cannot be deemed fatally defective; there was no proper verification under Section 90(1)(c) and the petition should be dismissed for lack of maintainability.

Contentions of Respondents

The respondent argues that Jose failed to disclose loan liabilities and arrears; his position as President of a Cooperative Society and receipt of advances for five works, without disclosure in Form 2A, renders him unfit and effectively constitutes a fake declaration; these material facts, if true, justify dismissal of the petition. The respondent contends that the petition contains substantial grounds requiring thorough factual adjudication, hence should proceed to trial rather than be dismissed on pleadings alone.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
M.G. Joseph v. C.V. Kuriakose and another	2007 (1) KHC 659	Positive	The court relies on and endorses the view in M.G. Joseph v. C.V. Kuriakose that non-disclosure of arrears in Form 2A is not a ground to sustain an election petition, guiding the present decision.

Extracted Judgment Text

Exact text extracted from official judgment records.

OP(C) NO. 1568 OF 2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 OP(C) NO. 1568 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OP(ELE) 3/2021 OF MUNCIFF** **MAGISTRATE COURT,MANANTHAVADY** ## **PETITIONER/S:** JOSE AGED 56 YEARS S/O VARGHESE, AGED 56 YEARS, PARAKKAL VEED, VARAYAL P.O.,PERIYA AMSOM, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN - 670644 BY ADVS. P.K.VARGHESE M.T.SAMEER M.B.SHYNI P.S.ANISHAD K.R.ARUN KRISHNAN JERRY MATHEW REGHU SREEDHARAN RAMEEZ M. AZEEZ ## **RESPONDENT/S:** 1 SURESH KALLAMKANDY AGED 52 YEARS S/O KANNAN, AGED 52 YEARS, KANNANKANDY VEEDU, CHIRAKKARA P.O., THAVINHAL, AMSOM, MANANTHAVADY TALUK, PIN - 670644 2 LAKSHMI AGED 48 YEARS D/O RAMAN, AGED 48 YEARS, MELETHALAPUZHA, COLONY , MAKKIMALA,CHIRAKKARA P.O., THAVINHAL, AMSOM, MANANTHAVADY TALUK, PIN - 670644 3 VIJAYAKUMAR S/O YESUDAS, AGED 40 YEARS, 2 OP(C) NO. 1568 OF 2022 6TH MILE NUMBER COLONY, MAKKIMALA,CHIRAKKARA P.O., THAVINHAL, AMSOM, MANANTHAVADY TALUK, PIN - 670644 4 VIJAYAKANTH S/O RAMAKRISHNAN, AGED 38 YEARS, KFDC KAMBAMALA, CHIRAKKARA P.O., THAVINHAL, AMSOM, MANANTHAVADY TALUK., PIN - 670644 5 SASI S/O GOPALAN, AGED 35 YEARS, KUNNATH VEED, MAKKIMALA,CHIRAKKARA P.O., THAVINHAL, AMSOM, MANANTHAVADY TALUK, PIN - 670644 BY ADVS. R.DIVAKARAN RAMAKRISHNAN BINOI GEORGE (CHERUKARA)(B-378) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 1568 OF 2022 3 ## **JUDGMENT** Aggrieved by Ext.P3 order passed by the Court of the Munsiff, Manathavadi in OP(Election) No.3/2021, the 1[st] respondent before the court below has filed the original petition. The respondents are the petitioner and respondents 2 to 5 before the court below. 2. The facts leading to the impugned order are: the 1[st] respondent has filed the above election petition against the petitioner and the respondents 2 to 5, challenging the election of the petitioner to Ward No.6 in Kaithakolli in Grama held on Thavinjal Panchayath 10.12.2020. The 1[st] respondent has filed the election petition, inter-alia, contending that the petitioner was not entitled to contest the election as he had failed to show the details of his loan account in Form 2A and that he had a loan liability in the Kerala Housing Board, Meenangadi branch, and revenue recovery proceedings were initiated against him. The 1[st] respondent also OP(C) NO. 1568 OF 2022 4 alleged that the petitioner was the President of a Cooperative Society and he had obtained advance by accepting 5 works, but he did not complete the works and failed to show the same in Form 24. Even though the 1[st] respondent raised the above objections before the Returning Officer, the same was not considered. Hence, the 1[st] respondent filed Ext.P1 election petition. The petitioner has filed Ext.P2 preliminary objection questioning the maintainability of the election petition and denying the allegations in the election petition. It is inter-alia, contended that under Section 52(1)(a) of the Kerala Panchayath Raj Act (in short, “Act”), the returned candidate has to only furnish details as stated in the form and manner prescribed under the Act. The non-furnishing of details of arrears in Form 2A is not a ground to file the election petition. The position is answered by this Court in **M.G.Joseph vs. C.V.Kuriakose and another** [2007 (1) KHC 659]. Likewise the petitioner has clearly stated about the arrears payable to the Kerala State Housing OP(C) NO. 1568 OF 2022 **==> picture [7 x 9] intentionally omitted <==** Board in the nomination that was filed before the Returning Officer. Therefore, the omission to mention about this aspect in Form 2A is inconsequential. Thus, the election petition is unsustainable in law. There is no verification in the election petition as prescribed under Section 90 (1)(c) of the Act. The court below, by the impugned Ext.P3 order, has rejected Ext.P2 preliminary objection. Ext.P3 is erroneous and wrong. Hence, the original petition. 3. Heard; Sri.P.K.Varghese, the learned counsel appearing for the petitioner and Sri.R.Divakaran, the learned counsel appearing for the 1[st] respondent. 4. The point is whether there is any error or illegality in Ext.P3 order. 5. The definite case of the 1[st] respondent is that the petitioner has failed to disclose his loan liability, that he was the President of a Co-operative Society and he had undertaken five works and obtained advance, which have OP(C) NO. 1568 OF 2022 6 not revealed in Form 2A. Therefore, the petitioner has submitted a fake declaration. 6. The defense of the petitioner in Ext.P2 preliminary objection is that the omission to state the arrears in Form 2A is not a ground to set aside the election. Likewise, the dues payable to the Kerala State Housing Board is not arrears to the Government and the establishment is not a Government undertaking. As the 1[st] respondent has failed to plead the details of the work done by the petitioner and has not verified the election petition as contemplated under law, the election petition is to be dismissed. 7. The court below, after going through the rival pleadings, by the impugned Ext.P3 order, has held that the election petition cannot be rejected at threshold under Order 7 Rule 11A of the Code of Civil Procedure, as the allegations and counter allegations raised by both sides are a matter of evidence. OP(C) NO. 1568 OF 2022 7 On an analysis of the pleadings and materials on record, I do not find any error or illegality in Ext.P3 order, warranting interference by this Court under Article 227 of the Constitution of India. This Court completely endorses the view of the court below that the subject matter in issue can only be decided after a fullfledged trial and not on the basis of rival pleadings. The court below has not overstepped its bound of authority. The original petition fails and is dismissed. Sd/- ## **C.S.DIAS, JUDGE** rkc/27.10.22 OP(C) NO. 1568 OF 2022 8 ## **APPENDIX OF OP(C) 1568/2022** PETITIONER EXHIBITS Exhibit P1 A COPY OF THE ELECTION PETITION DATED 15.01.2021 IN OP (ELE) NO. 3 /2021 OF THE HON'BLE MUNSIFF COURT, MANANTHAVADY Exhibit P2 COPY OF THE PRELIMINARY OBJECTION DATED 07.07.2021 FILED BY THE 1ST RESPONDENT/ELECTION PETITIONER IN OP (ELE) NO. 3/2021 BEFORE THE HON'BLE MUNSIFF COURT, MANANTHAVADY Exhibit P3 COPY OF THE ORDER DATED 27.01.2022 IN OP (ELE) NO. 3/2021 BEFORE THE HON'BLE MUNSIFF COURT, MANANTHAVADY