O P Praveen v. Pradeep P U and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 10[TH] DAY OF FEBRUARY 2022 / 21ST MAGHA, 1943** **OP(C) NO. 182 OF 2022** **AGAINST THE ORDER DATED 24.01.2022 IN IA 1/2022 IN AS 5/2022 IN OP.03/2021 OF ADDITIONAL DISTRICT JUDGE - II,** ## **MANJERI** ## **PETITIONER/PETITIONER:** O P PRAVEEN, AGED 30 YEARS S/O CHANDRAN, OZHUKKAN PARAMBIL HOUSE, PIDAVANNUR AMSOM, MOOKKUTHALA DESOM (PO) MOOKKUTHALA, PONNANI TALUK, MALAPPURAM DISTRICT PIN-670 505. BY ADVS. T.KRISHNANUNNI (SR.) MEENA.A. K.C.KIRAN M.R.MINI M.DEVESH ASHWIN SATHYANATH ANISH ANTONY ANATHAZHATH THAREEQ ANVER K. VINOD RAVINDRANATH ## **RESPONDENTS/RESPONDENTS:** 1 PRADEEP P U, AGED 47 YEARS S/O P.K. UNNI @ UNNI VYDHYAN, PAZHANJIYIL(H), PIDAVANNUR AMSOM, MOOKKUTHALA (PO) PONNANI TALUK, MALAPPURAM DISTRICT, PIN-679 574. 2 BALAN C, AGED 60 YEARS S/O CHATHAN CHEMBALANGARA (H), PALLIKKARA AMSOM, VADAKKUMURI DESOM, (PO)MOOKKUTHALA, PONNANI TALUK, MALAPPURAM DISTRICT, PIN-679 574. 3 UNNIKRISHNAN, AGED 55 YEARS S/O PANANGADAN, MOORIYATH VALAPPIL, PALLIKKARA AMSOM DESOM, NANNAMUKKU P.O, PONNANI TALUK, MALAPPURAM DISTRICT, PIN-679 575. BY ADVS. K.M.FIROZ E.C.AHAMED FAZIL THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2022, THE COURT ON 10.02.2022 DELIVERED THE FOLLOWING: _O.P(C).No.182 of 2022_ 2 _**"C.R"**_ ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.182 of 2022_ ================================ _Dated this the 10[th] day of February, 2022_ **==> picture [107 x 38] intentionally omitted <==** ## _**JUDGMENT**_ Relevant question crops up for consideration is as to whether a blanket order of stay can be granted by the appellate court when considering an appeal under Section 113 of the Kerala Panchayat Raj Act in the context of Section 107 of the Act? 2. In this Original Petition filed under Article 227 of the Constitution of India the petitioner herein impugns interim order in I.A.No.1/2022 dated 24.01.2022 in A.S.No.5/2022, pending before the Additional District Judge-II, Manjeri. The respondents herein are the original petitioner and respondents 2 and 3 in Election O.P.No.3/2021 (wherefrom A.S.5/22 arose). 3. Heard the learned Senior Counsel appearing for the original petitioner Sri Krishnanunni and Sri K.M.Firoz, appearing _O.P(C).No.182 of 2022_ 3 for the 1[st] respondent. 4. I would like to refer the parties in this Original Petition as Praveen and Pradeep. Sri Pradeep filed Election O.P.No.3/2021 before the Munsiff-Magistrate Court, Ponnani, challenging election of Sri Praveen. The learned Munsiff allowed Election O.P.No.3/2021 and thereby election of Pradeep from ward No.2 (Kannenkavu) of Nannamukku Grama Panchayat held on 14.12.2020 was declared as void. 5. The above finding was challenged by filing A.S (Election). No.5/2022 before the District Court, Manjeri. An interim application was also filed to stay the operation of the order. As per order dated 24.01.2022, the learned District Judge refused to grant blanket order of stay. The learned District Judge permitted Mr.Praveen to continue to discharge the functions as a member of the Panchayat, but with the condition that he would not have any voting right and he should not collect any remuneration for the sitting of the Panchayat meeting or any of its _O.P(C).No.182 of 2022_ 4 Committees, till the disposal of the stay petition on merits. 6. The above order is under challenge before this Court. 7. While arguing to unsettle the above order, the learned Senior Counsel Sri Krishnanunni relied on a decision of the Honourable Supreme Court reported in [(1985) 4 SCC 621], _**Kripal Singh MLA v. Uttam Singh & anr.**_ The learned Senior Counsel attempted to carve out a difference in the matter of declaration of election as void due to the fault of the candidate and due to the fault of the officials in the election, since in the instant case election was declared void on finding fault on the part of the Returning Officer. The learned counsel would urge that when the election is declared void due to the fault of the candidate, it is different from declaration of election of a candidate on the premise of the fault committed by the Returning Officer in the matter of improper rejection of nomination paper, etc. The learned counsel also placed an order in Civil Appeal No.6467/2012 in _**Varkala Kahar v. Prahladan**_ where the _O.P(C).No.182 of 2022_ 5 Honourable Supreme Court issued blanket order of stay when the election of Varkala Kahar was declared void by this Court as per the decision of this Court in [2012 (4) KLJ 559], _**Prahladan v. Varkala Kahar**_ . Therefore, it is argued by the learned Senior Counsel that a blanket order of stay permitting Praveen to continue as the member of the Panchayat in full vigour, till the disposal of the appeal should have been granted by the learned District Judge and therefore the learned District Judge went wrong in granting the impugned order with restrictive rights. 8. Per contra, Sri K.M.Firoz, who is appearing for the Pradeep highlighted decision reported in [2004 KHC 168 : 2004 (1) KLJ 598], _**Padmakumar v. Unnikrishnan**_ to contend that power of the appellate court to grant stay in election petition filed under Section 113 of the Kerala Panchayat Raj Act, 1994 in violation of the mandate of Section 107 of the Panchayat Raj Act is not permissible. In the said decision when this Court considered a similar matter, it was held as under: _O.P(C).No.182 of 2022_ 6 _"S.107 of the Act specifically provides that an order under S.100 or S.101 shall take effect as soon as it is pronounced by the court. Therefore, the moment a order is passed by the Munsiffs Court declaring the election as void, the order has come into effect on the day the order is being pronounced by that court. Once an order has come into effect, then the question of staying the order of the Munsiffs Court does not arise, since such stay will be contrary to S.107 of the Act. At the same time, in order to preserve the right of parties, until a final decision is rendered in the appeal, it will be open to the appellate authority to pass such orders as it thinks fit, at the same time not in violation of S.107 of the Act. In the present case, the appellate court has given a blanket stay of operation of the order, which is clearly in violation of S.107 of the Act. Further, stay of operation of an order can be passed only before it comes into operation and not afterwards._ _xxxx xxxx xxxxx It will be open to an appellate court to consider all such aspects and can even impose restrictions on the right of the elected candidate and also to consider whether he could be permitted to participate in the meetings of the Panchayat. These are only general guidelines to be followed while considering the petition seeking interim relief in an election dispute under appeal._ _9. In the facts and circumstances of the case, there will be a direction that the first respondent can participate in the meetings and proceedings of the Panchayat, but, he cannot exercise any voting right in any such meetings. The Election Commission shall not proceed to issue any fresh notification pursuant to the judgment of the Munsiffs Court until the disposal of the appeal by the appellate court. The interim order passed by the District Court is modified to the above extent."_ The ratio of _**Padmakumar**_ 's case ( _supra_ ) later followed by this Court in [2012 (2) KHC 209], _**Muraleedharan V.V. v. P.G.Shaji**_ _O.P(C).No.182 of 2022_ 7 and upheld the same view. 9. The learned counsel Sri K.M.Firoz also pointed out that there is difference in between Section 107 of the Kerala Panchayat Raj Act and Section 107 of the Representation of the People Act, 1950. He also pointed out that the decision highlighted by the learned Senior Counsel representing Praveen was rendered when an election under the Representation of the People Act, 1951 was considered. However, effect of Section 107 of the Representation of the People Act, 1951 is subject to the provisions contained in Chapter IVA relating to the stay of operation of an order of the High Court. In this connection, I am inclined to extract Section 107 of the Kerala Panchayat Raj Act as under: _"107. Effect of orders of the court. - (1) An order under section 100 or section 101 shall take effect as soon as it is pronounced by the court._ _(2) Where by an order under section 101 the election of a returned candidate is declared to be void, acts and proceedings in which that returned candidate has, before the date thereof participated as a member of a panchayat shall not be invalidated by a reason of that_ _O.P(C).No.182 of 2022_ 8 _order, nor shall such candidate be subjected to any liability or penalty on the ground of such participation."_ ## 10. Similarly, Section 107 of the Representation of the People Act, 1951 is extracted hereunder: _"107. Effect of orders of the High Court.— [(1) Subject to the provisions contained in Chapter IVA relating to the stay of operation of an order of the High Court under section 98 or section 99, every such order shall take effect as soon as it is pronounced by the High Court.]_ _(2) Where by an order under section 98 the election of a returned candidate is declared to be void, acts and proceedings in which that returned candidate has, before the date thereof, participated as a member of Parliament or as a member of the Legislature of a State shall not be invalidated by reason of that order, nor shall such candidate be subjected to any liability or penalty on the ground of such participation."_ 11. On a plain reading of Section 107 of the Representation of the People Act, it could be gathered that Chapter IVA dealing with appeals is also having significance in the matter of orders passed by the High Court under Section 107 of the Reprsentation of the People Act. Section 116B of the ## Representation of the People Act, 1951 provides as under: _"116-B: Stay of operation of order of High Court:--(1) An application may be made to the High Court for stay of operation of an order made by the High Court under section 98 or section 99 before_ _O.P(C).No.182 of 2022_ 9 _the expiration of the time allowed for appealing therefrom and the High Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order; but no application for stay shall be made to the High Court after an appeal has been preferred to the Supreme Court._ _(2) Where an appeal has been preferred against an order made under section 98 or section 99, the Supreme Court may, on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order appealed from._ _(3) When the operation of an order is stayed by the High Court or, as the case may be, the Supreme Court, the order shall be deemed never to have taken effect under sub-section (1) of section 107; and a copy of the stay order shall immediately be sent by the High Court or, as the case may be, the Supreme Court, to the Election Commission and the Speaker of Chairman, as the case may be, of the House of Parliament or of the State Legislature concerned."_ 12. On perusal of the Panchayat Raj Act, no provisions in _pari materia_ with Chapter IVA of the Representation of the People Act, 1951 could be found. This legal position, when noticed by the learned Senior Counsel Sri Krishnanunni, he fairly conceded the same. Here assumes significance of an earlier decision of the Honourable Supreme Court reported in [1975(2) SCC 159 : AIR 1975 SC 1590], _**Smt. Indira Nehru Gandhi v. Raj Narain & anr.**_ In the said decision, while granting stay of _O.P(C).No.182 of 2022_ 10 operation of election of Smt.Indira Gandhi, the Honourable Supreme Court imposed condition No.III thereby restrictive right of Smt.Indira Gandhi as a member of Lok Sabha was protected. Condition No.III is extracted hereunder: _"III. The appellant petitioner, qua Lok Sabha Member, will be entitled to sign the Register kept in the House for that purpose and attend the Sessions of the Lok Sabha, but she will neither participate in the proceedings in the Lok Sabha nor vote nor draw remuneration in her capacity as Member of the Lok Sabha."_ Going by the ratio in _**Smt. Indira Nehru Gandhi**_ 's case ( _supra_ ) also, even under the Representation of the People Act, 1951 restrictions are permissible while granting stay despite the fact that Chapter IVA of the Representation of the People Act is more flexible than that of the Kerala Panchayat Raj Act. 13. Thus the law emerges is that though as per Section 113 of the Kerala Panchayat Raj Act any person aggrieved by an order passed under Sections 100 and 101 is entitled to prefer an appeal before the District Court and such an appeal can be on any question of law or fact. At the same time, Section 107 of the _O.P(C).No.182 of 2022_ 11 Kerala Panchayat Raj Act specifically provides that an order under Section 100 or 101 shall take effect as soon as it is pronounced by the court. When two provisions of the same statute provide two separate instances, the law should be interpreted in a harmonious manner so as to give weight to both provisions equally without subjecting one provision either inoperative or redundant. To put it otherwise, the statutory right of appeal under Section 113 given to a person aggrieved by the decision of the Munsiff Court in the matter of election is to address his grievance by the appellate court after re-appreciating the evidence. Nobody could say that all election appeals would be dismissed. There are instances whereby the orders of the Munsiff may have been set aside by the District Court. Similarly, Section 107 of the Kerala Panchayat Raj Act provides that any order under Sections 100 and 101 shall take effect as soon as it is pronounced by the court. Therefore, while considering stay of operation of an order passed under Sections 100 and 101, the _O.P(C).No.182 of 2022_ 12 order of stay of election shall be without doing violence to Sections 107 and 113 of the Kerala Panchayat Raj Act. This is the context in which this Court consistently held that an appellate authority to pass such orders as it thinks fit when considering stay in election appeal, at the same time not by doing violence to Section 107 of the Act. I may add that such an order shall not be one to do violence to Section 113 of the Act also. Thus restrictive rights protected in view of the operation of stay as ordered by the District Judge is the feasible and possible order, in a case like this. Therefore, I find no illegality in the order impugned. Therefore, I am inclined to confirm the same. In the result, this Original Petition is devoid of any merit since the order under challenge does not suffer from any perversity or arbitrariness. Hence the Original Petition stands dismissed. Sd/- ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ _O.P(C).No.182 of 2022_ 13 ## **APPENDIX OF OP(C) 182/2022** PETITIONER'S EXHIBITS |Exhibit P1|TRUE COPY OF THE JUDGMENT DATED| |---|---| ||14.1.2022 IN ELE OP 3/2021 ON THE FILE| ||OF THE COURT OF MUNSIFF MAGISTRATE OF| ||PONNANI.| |Exhibit P2|TRUE COPY OF THE MEMORANDUM OF APPEAL| ||DATED 17.1.2022 IN AS 5/2022 FILED BY| ||THE PETITIONER BEFORE THE HON'BLE| ||DISTRICT COURT, MANJERI.| |exhibit P3|TRUE COPY OF IA 1/2022 IN AS 5/2022| ||DATED 17.1.2022 FILED BY THE PETITIONER| ||BEFORE THE HON'BLE DISTRICT COURT| ||MANJERI.| |Exhibit P4|TRUE COPY OF ORDER DATED 24.1.2022 IN| ||IA 1/2022.|