K. Sunil v. Jitesh Muthukad and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **FRIDAY, THE 14TH DAY OF NOVEMBER 2014/23RD KARTHIKA, 1936** ## **CRP.No.291 of 2014** ## **---------------------------** **(AGAINST THE JUDGMENT IN ELECTION APPEAL 4/2012 OF II ADDITIONAL DISTRICT JUDGE,KOZHIKODE DATED 19.03.2014).** ## **REVISION PETITIONER/1ST RESPONDENT/1ST RESPONDENT:** **-------------------------------------------------------------------------------------------** **K.SUNIL,S/O.KRISHNAN,AGED 41 YEARS, KALLUNKAL HOUSE,POST PERUVANNAMUZHI, KOZHIKODE DISTRICT** **BY SRI.T.KRISHNAN UNNI (SENIOR ADVOCATE.) ADV.SRI.K.A.SALIL NARAYANAN** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 2 & 3/PETITIONER & R2 & R3:** - **--------------------------------------------------------------------------------------------------------------------** ## **1. JITESH MUTHUKAD,S/O.SIVAN.P.R,AGED 33 YEARS, PADINJARE MANNU,POST PERUVANNAMUZHI, KOZHIKODE DISTRICT-673 528.** **2. SUNIL.M.K,S/O.SANKARAN,MAKKUNNUMMAL HOUSE, POST MUTHUKAD,CHAKKITTAPPARA AMSOM, KOZHIKODE DISTRICT-673 528.** **3. CHAKKITTAPPARA GRAMA PANCHAYATH, POST CHAKKITTAPPARA,KOZHIKODE DISTRICT, 673 527 REPRESENTED BY ITS SECRETARY.** ## **R1 BY ADV. SRI.BABU CHERUKARA. R3 BY ADV. SRI.B.HARI KUMAR** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **pk** ## **P. BHAVADASAN, J. ========================== C.R.P No.291 OF 2014** ========================== Dated this the 14[th] day of November, 2014 ## **ORDER** The interesting question that comes up for consideration in this Civil Revision Petition arising out of the Election Appeal No.4/2012, whereby the learned II Additional District Judge, Kozhikode set aside the election of the petitioner to the Muthukad Ward of Chakkittappara Grama Panchayat is regarding the applicability of Sec.34(1)(j) of the Panchayat Raj Act. 2. The facts which are necessary for consideration arise as follows: The petitioner as well as the respondents were candidates who contested from the above ward to the Panchayat election held on 23.10.2010. On declaration of results, it was found that the petitioner was elected by a margin of 321 votes. His election was challenged before the court concerned on the ground that he had violated Sec.34(1) (j) of the Kerala Panchayat Raj Act as well as Sec. 52(1)(A) of the Panchayat Raj Act, thereby rendering him disqualified to stand for election. C.R.P No.291/2014 2 3. The case put forward by the respondents herein is that the petitioner had stood as surety in two cases before the J.F.C.M court and proceedings were initiated against him as M.C. No.67/06 and M.C. No.23/06. In both of those proceedings, he suffered orders of penalty and was liable to pay the amount covered by the bonds. It is therefore, contended that as on the date of filing of the nomination for the election, amounts were due from him to the Government and if that be so, he was bound to disclose that fact in the nomination papers and therefore he was in arrears due to the Government and thus disqualified to contest the election under Sec. 34(1)(j) of the Act. 4. The above contentions did not find favour with the trial court. However, the ground under Sec.34(1)(j) found favour with the lower appellate court, which set aside the election on that ground. 5. Shri T. Krishnanunni, the learned senior counsel appearing for the petitioner contends that on a plain reading of Sec.34(1)(j), even assuming that penalty was imposed on the petitioner, it is not sufficient to constitute a ground under Sec.34(1)(j). To attract Sec.34(1)(j) two things will have to C.R.P No.291/2014 3 be established and they are: (1) the candidate must in arrears of any kind due to the Government; (2) a notice of demand has been served on him. The learned senior counsel contended that penalty imposed cannot be equated to arrears due, even if for argument sake it was so, there was no demand notice calling upon the petitioner to pay the amount within a specified time. While the trial court found in favour of the petitioner, the appellate court found that the penalty imposed is amount in arrears due and so the petitioner was disqualified to contest the election as per Sec.34(1)(j) of the Panchayat Raj Act. 6. The question that arises for consideration is whether as found by the lower appellate court, the petitioner is disqualified under Sec.34(1)(j) of the Kerala Panchayat Raj Act. That provision reads as follows: _“34(1) A person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, if he--_ _xxxxxx_ _xxxxxx_ _(j) is in arrears of any kind due by him to the Government (or the Local Self Government Institution) (otherwise than in a fiduciary capacity)_ 4 C.R.P No.291/2014 _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; or”_ 7. The learned counsel appearing for the 1[st] Respondent Shri Babu Cherukara contended that it cannot be said that there was no notice of demand as far as the petitioner is concerned, for the reason that notice under Sec. 446 of the Code of Criminal Procedure, 1973 was issued to the petitioner which clearly mentioned that there was forfeiture of bond and he was bound to pay of penalty of a sum of Rs.5,000/-. There is no provision in the Cr.P.C to give a second notice of demand and it cannot be said that an order imposing penalty was without notice to him. The learned counsel also referred to Form No.40 of the Cr.P.C and Form No.50 of the Cr.P.C and contended that when penalties are imposed, the amounts become due to the Government and thereafter it cannot be said that the person who is liable to pay was unaware of the same. It was strenuously contended by the learned counsel that Sec.446 read with Sec.421 makes it abundantly clear that when penalty is imposed, liability is immediately fastened and there is no need of a subsequent demand. The very factum of 5 C.R.P No.291/2014 imposition of penalty is that notice was issued to the person concerned and that is sufficient. It is not possible to say that a penalty imposed under Sec. 446 of the Cr.P.C is not arrear due to the Government. 8. As already noticed, Sec. 34(1)(j), consists of three parts. They are: Arrears of any amount due from the candidate to the Government; (2) a bill or notice of demand duly served upon him; and (3) time specified therein for payment has expired. 9. That it is absolutely necessary to establish the three conditions to attract the said provision is settled by the decision reported in _**'Ramachandran v. Omanakuttan' (2002 (3) KLT 603)**_ , wherein it was held as follows: _“8. I shall first consider how far the contention of the respondent that the revision petitioner is disqualified since he had caused loss to the local authority concerned is correct. The case of the respondent was that originally the revision petitioner was residing in his family house. But before six years, he started construction of a concrete building of his own and he shifted his residence from the family house by name Pankavil and started residence in a temporary shed which was numbered as 502 of previous Ward No.II of Chunakkara Panchayat. The allegation is that the revision petitioner completed_ C.R.P No.291/2014 6 _the construction of the terraced building six years ago and shifted his residence to that newly constructed building. It is also alleged that the revision petitioner was a member of the former Panchayat Committee and using that position, he exerted undue influence on the staff of the Panchayat and deliberately avoided the assessment of the building which was newly constructed. But is is admitted that the building was assigned a number as 389 of Ward No.I. So, the allegation is that even though the construction of the building was over six years prior to the date of election, by using the power as a member of the Panchayat Committee, the building was not assessed to local authority tax and thereby caused loss to the local authority. A plain reading of S.34(1)(j) shows that it is not a matter covered by that section. Even if the entire case put forward by the respondent is accepted as such, it can be only said that the revision petitioner is a man of no principle and he played fraud on the local authority. But, that is not a ground for setting aside the result of the election. There is absolutely nothing on record to show that the revision petitioner owns any building. On the other hand, the evidence adduced shows that the building stands in the name of his wife. There is also no evidence to show that at any point of time any demand by way of bill or notice was duly served on the revision petitioner and after the expiry of the time fixed in the notice, he did not pay the amount covered by that bill. A reading of S.34(1)(j) of the Act_ C.R.P No.291/2014 7 _makes it crystal clear that a disqualification can be attributed only if there was a demand by way of bill or notice in respect of any arrears due to the Panchayat and there is failure on the part of the defaulter to pay the amount within the time stated in the notice. So, even if it is established that the revision petitioner was a defaulter, that is not sufficient to set aside an election. There must be evidence to show that notice or bill was served on him and the defaulter did not pay that amount. As I have already stated, the respondent had no such case. While considering a similar provision in Bombay Village Panchayat Act (3 of 1959), a Division Bench of the Bombay High Court in the decision reported in Chandkhan v. W.N. Gound (AIR 1973 Bombay 1) held as follows:-_ _“Only non-payment of fees or taxes levied under S. 124 within the period specified in the bill in respect of which a bill has been duly served on a person was alone to result in his disqualification under S.14(h). Though, therefore, the amount charged for a writ of demand is designated as fees by S. 129, those are not categories of fees for non-payment of which a disqualification for being member of a Panchayat under S. 14(h) can be incurred, because no bill in respect of that is ever contemplated to be presented under S. 129(1)”. In view of the absence of evidence of service of bill or notice and failure to pay the amount covered by the bill or notice, no disqualification can be attributed on the revision petitioner. As already stated, the only ground alleged is that in view of the undue influence exerted by_ C.R.P No.291/2014 8 _the revision petitioner, the local authority did not assess the rental value of the building. That is not a ground to set aside an election. Both the Courts have not considered these aspects. As rightly pointed out by the counsel for the revision petitioner, when the qualification of a candidate for election under a particular statute is considered, the provision must be strictly construed. In the absence of service of any demand by way of bill or notice and failure to pay the same within the time fixed therein, the finding of the Courts below that the revision petitioner is a defaulter on the ground that he has caused loss to the local authority by not assessing the building to tax is illegal and unsustainable and liable to be set aside. I do so.”_ 10. True, in the decision relied on by the counsel for the contesting respondent, it has been held once notice under Sec.446 is issued, it may not be necessary to issue a second notice before the penalty is imposed. 11. But, Sec.446 notice is a composite notice informing the person concerned that bond is forfeited and he is liable to be mulcted with liability to pay penalty unless he show cause why it should not be imposed. Sec.446 does not contemplate a second notice before imposing penalty. 12. However, imposition of penalty, even assuming that C.R.P No.291/2014 9 constitute amount due from the candidate to Government by itself is not sufficient. There should be notice issued demanding the amount and thereafter the person concerned does not pay. 13. It is true that there is no provision in the Cr.P.C whereby the court issues a subsequent notice calling upon the person concerned to remit the penalty. But then, the Code provides that in case the amount is not paid, it can be recovered by resorting to various methods of recovery. There are two modes of recovery. The court can directly take steps to proceed against the movable property of the person concerned or the court can address the District Collector to initiate Revenue Recovery proceedings in respect of his immovable property. 14. It must be noticed if any of the proceeding mentioned above had been initiated, it is necessary to issue notice to the petitioner. If such a notice had been issued, it may amount to a demand notice and failure to pay thereafter may attract Sec.34(1)(j). 15. However, it is extremely difficult to accept the contention of the learned senior counsel, Shri T. Krishnanunni C.R.P No.291/2014 10 that the penalty imposed for which even if demand notice is issued and remains unpaid cannot attract Sec.34(1)(j) may not be capable of acceptance. 16. The lower appellate court was of the view that the first notice, that is the notice to show cause why penalty should not be imposed, itself is a demand. Ext.A9 which is a notice issued could not be for the purpose of Sec.34(1)(j) be deemed as a demand notice calling upon the petitioner to pay arrears. It could be argued that when initially notice under Sec.446 is issued there is only a proposal to impose penalty. As rightly pointed out by the learned counsel for the contesting respondent, the amount can be said to be due to Government on imposition of penalty. It may be true that the Code does not contemplate a second notice of demand to the person concerned. But, that does not mean the first notice is to be treated as demand for payment. First notice as per Sec.446 of Cr.P.C is to inform the person concerned about the forfeiture of the bond and the consequence that would follow. It is further clear from Sec.431 and 421 of Cr.P.C., which are the modes of recovery of amount imposed. Viewed from that angle, it is difficult to accept the findings of the court below that there is C.R.P No.291/2014 11 clear violation of Sec.34(1)(j) and setting aside the election of the petitioner. It has to be necessarily held that on a reading of Sec.34(1)(j), the requirements are not satisfied in the case on hand. 17. Coming to cross objection filed by the contesting respondent which was not received on file by the registry, as the same is not maintainable, the ground taken is of little consequence. 18. The non-disclosure of amount due to Government is not shown in Form 2A, it is contended that there is violation of Sec.52(1)(A). Apart from dearth of pleadings in that regard, there is no case for the respondent that petitioner filed a false statement. Moreover, both the courts below were not impressed with the said contention. The issue does not therefore arises for consideration. 19. For the above reasons, this court is unable to accept the findings of the lower appellate court that Sec.34(1)(j) of the Panchayat Raj Act is attracted to the facts of this case and hence the election of the petitioner is to be set aside. C.R.P No.291/2014 12 This Civil Revision Petition is allowed, the impugned order is set aside and the decree of the trial court is restored. Sd/- **P. BHAVADASAN, JUDGE.** //true copy// P.S. To Judge St/-