Subaida Pareeth v. K.S. Sauda Beevi and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933** **OP(C).No. 3840 of 2011(O)** **-----------------------------------IA.548/2011 IN AS(Election)/181/2011 of ADDL. DISTRICT COURT, NORTH PARAVUR** **..................................** ## **PETITIONER(S):** **----------------------** **SUBAIDA PAREETH W/O PAREETH, AGED 37 YEARS CHATHERI HOUSE, NOOLELI, ASAMANNOOR PO, 683 549.** **BY ADV. SRI.C.S.AJITH PRAKASH SRI.T.D.SALIM SRI.C.S.YESUDAS SRI.PAUL C THOMAS** ## **RESPONDENT(S):** **------------------------** **1. K.S.SAUDA BEEVI, D/O.SULAIMAN PUTHANPURAYIL HOUSE, NOOLELI ASAMANNOOR PO, 683 549.** **2. PUSHPA RAVI, D/O.KUTTAPPAN PULIKKAL HOUSE, PANICHAYAM NEDUNGAPRA PO, 683 545.** **3. ABIDA AHSRAF, D/O. MAMMED THOTTATHIKUDI HOUSE, NOOLELI ASAMANNOOR PO, 683 549.** **R1 BY ADV. SRI.DINESH MATHEW J.MURICKEN ADV. SRI.P.V.BALAKRISHNAN** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SD** ## **OPC NO. 3840/2011** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1 A TRUE COPY OF THE OP ELECTION PETITION NO.5/10 FILED BEFORE THE MUNSIFF'S COURT, PERUMBAVOOR. EXT.P2 A TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF'S COURT PERUMBAVOOR DT.2.11.11 IN EOP NO.5/10. EXT.P3 A TRUE COPY OF THE INTIMATION OF THE SUBSTANCE OF THE ORDER IN OP.ELECTION NO.5/10 TO THE STATE ELECTION COMMISSION. EXT.P4 A TRUE COPY OF THE CAVEAT APPLICATION NO.250/11 FILED BEFORE THE DISTRICT COURT, ERNAKULAM. EXT.P5 A TRUE COPY OF THE REQUEST MADE BY THE PETITIONER TO THE VICE PRESIDENT OF ASAMANNOOR GRAMA PANCHAYATH. EXT.P6 A TRUE COPY OF THE REQUEST MADE BY THE PETITIONER TO THE SECRETARY OF ASAMANNOOR GRAMA PANCHAYATH. EXT.P7 A TRUE COPY OF THE LETTER NO.6084/B/2011 SEC DT.10.11.11 EXT.P8 A TRUE COPY OF THE EMAIL MESSAGE DT.15.11.11 ISSUED BY THE KERALA STATE ELECTION COMMISSION EXT.P9 A TRUE COPY OF THE APPEAL MEMORANDUM IN A.S. 181/11 EXT. P10 A TRUE COPY OF THE INTERIM APPLICATION NO. 548/11 IN A.S. NO. 181/11 EXT. P11 A TRUE COPY OF THEY7 ORDER IN I.A. NO. 548/11 DATED 16.11.11 PASSED BY THE ADDITIONAL DISTRICT JUDGE, NORTH PARAVUR. EXT. P12 A TRUE COPY OF THE NOTICE DATED 17.11.11 ISSUED BY THE ASAMANNOOOR PANCHAYATH EXT P 13 A TRUE COPY OF THE NOTICE DATED 22.11.11 ISSUED BY THE ASAMANNOOR PANCHAYATH** ## **RESPONDENTS' EXHIBITS : NIL** **TRUE COPY** **P.A. TO JUDGE** ## **SD** ## **THOMAS P. JOSEPH, J.** **-------------------------------------O.P.(C) No.3840 of 2011 -------------------------------------Dated this the 30[th] day of November, 2011.** ## **JUDGMENT** 1[st] respondent in A.S. (Election) No.181 of 2011 of the court of learned Additional District Judge, North Paravur is aggrieved by Ext.P11, order dated 16.11.2011 on I.A.No.548 of 2011 granting stay of operation of Ext.P2, order subject to the condition that 1[st] respondent (herein) could participate in the meetings and proceedings of the Panchayath until further orders but, without any right to exercise vote in such meetings. 2. Petitioner challenged election of 1[st] respondent from Ward -VI of Asamannoor Grama Panchayat on various grounds and was successful in getting a favourable order (Ext.P2). The Election Tribunal while allowing the petition declared election of 1[st] respondent as void and declared petitioner as the duly elected candidate from the Ward in question. It is Ext.P2, order which 1[st] respondent challenged in A.S.(Election) No.181 of 2011 where 1[st] respondent moved Ext.P10, application (I.A.No.548 of 2011) for stay of operation of Ext.P2, order. Ext.P11, order is under challenge. 3. Learned counsel for petitioner has contended that the appeal itself is not maintainable since as per Section 113(c) of the Kerala Panchayat Raj Act (for short, “the Act”) the appeal has to be preferred to the District Courts which is notified by the Government in consultation with the High Court as the court to **OP(C)No.3840/2011** 2 hear the appeal. Learned counsel contended that article “the” appearing before “District Court” in Clause (a) of Sub-sec.(1) of Sec.113 of the Act makes it abundantly clear that appeal can be preferred only before the District Court which is notified to hear such appeals. Learned counsel has placed before me the notification to say that the court of learned Additional District Judge, North Paravur, apart from the fact that it is not a “District Court” is not notified as a court to hear such appeals and hence the appeal itself is not maintainable. Learned counsel also placed reliance on the decisions in **Moideen v. Assistant Wild Life Warden (2010 (4) KLT 41)** and **Reshmi Constructions, Builders and Contractors (M/s.) v. NTPC Ltd. and** **another (2011 (1) KHC 61)** . According to the learned counsel, in **Reshmi** ## **Constructions, Builders and Contractors (M/s.) v. NTPC Ltd. and** **anothe** r this Court held that the “court” referred to in Sec.2(e) of the Arbitration and Conciliation Act, 1996 includes Additional District Court also in view of the broad definition given to the expression “court” in the said provision. But such provision is absent so far as Sec.113 of the Act is concerned. A further argument which learned counsel has advanced is that so far as Ext.P11, order is concerned, it does not grant stay of Ext.P2, order but only enables the 1[st] respondent to attend meetings of the Panchayat subject to certain conditions. Though in Ext.P2, order petitioner was declared elected from the Ward in question there is no stay of said order and hence, petitioner is entitled to be **OP(C)No.3840/2011** 3 administered oath as an elected member of the Panchayat. According to the learned counsel as per Sec.107 of the Act any order passed under Sec.100 or Sec.101 of the said Act shall take effect from the date of the order and in such circumstances, learned Additional District Judge was not right in passing Ext.P11, order. Reliance is placed on the decision of this Court in ## **Padmakumar v. Unnikrishnan (2004 (1) KLT 1097)** . 4. Learned counsel for 1[st] respondent contended that the question regarding maintainability of appeal is to be urged before the court concerned and it is for the learned Additional District Judge to take a decision at the first instance. At any rate, it is contended that learned Additional District Judge is competent to entertain and dispose of the appeal. 5. So far as the first argument raised by the learned counsel – maintainability of the appeal before learned Additional District Judge, North Paravur is concerned, I am not required to go into that question since in this Original Petition the challenge is to Ext.P11, order. I must bear in mind that it is open to the petitioner to raise question of maintainability of appeal before learned Additional District Judge and it is for that court at the first instance to decide whether it has jurisdiction to entertain the appeal. Hence that question is left open to be decided by the learned Additional District Judge if raised at the appropriate stage. **OP(C)No.3840/2011** **==> picture [7 x 9] intentionally omitted <==** 6. Coming back to Ext.P11, order question for consideration is whether interference is required. 7. No doubt, by Ext.P2 order petitioner was declared elected from the Ward in question. Sec.107 of the Act states that an order under Sec.100 (Ext.P2, order is passed under Sec.100 of the Act) or Sec.101 of the Act shall take effect as soon as it is pronounced by the court. Sec.114 of the Act deals with the procedure in appeals and Sub-sec.(1) thereto states that subject to the provisions of the Act and of the Rules, if any made thereunder the District Court or the High Court may dispose of the appeal in accordance with the procedure laid down in the Code of Civil Procedure, 1908 for the hearing of appeals and the decision of the Court in the appeal shall be final. Argument of the learned counsel is that though, even in the absence of a specific provision in the Act empowering the District Court to grant stay it is within the power of such court to grant stay, it is subject to Sec.107 of the Act which states that an order under Sec.100 or Sec.101 of the said Act would take effect from the date of order. According to the learned counsel, Ext.P2, order has taken effect as early as on 02.11.2011 and though it may be within the power of the District Court to grant stay even when the order has taken effect, Ext.P11, order affects the right of petitioner to get oath administered as per law and hence is bad. 8. Learned counsel has invited my attention to Exts.P5 and P6, applications preferred by petitioner before the Vice President and the Secretary **OP(C)No.3840/2011** 5 of the Grama Panchayat on 08.11.2011 and 09.11.2011 (Ext.P11, order of stay was passed on 16.11.2011) requesting that arrangements may be made for administering oath to the petitioner but, no action was taken on that applications notwithstanding that there was no order of stay in force then, The Election Commission by Ext.P7, letter dated 10.11.2011 directed the Secretary to administer oath to the petitioner (since the 1[st] respondent was elected as the President of the Panchayat, by her being unseated it is contended that she lost the post of President as well) . The Election Commission by Ext.P8, order dated 15.11.2011 directed the authorities to make arrangements for administering oath to the petitioner. At that time petitioner filed W.P.(C) No.30164 of 2011 in this Court for a direction to the appropriate authority to administer oath to the petitioner. There, the Vice President of the Panchayat who was a party, on 19.11.2011 (though Ext.P11, order was passed on 16.11.2011) sought time to file counter without mentioning anything about Ext.P11). The Secretary of the Panchayat issued Ext.P12, notice on 17.11.2011 informing petitioner and others that oath will be administered to the petitioner on 23.11.2011. But the Secretary came with Ext.P13, letter dated 22.11.2011 that the ceremony for administering oath is cancelled (where no mention is made about Ext.P11, order of stay.) The above, according to the learned counsel indicated highhanded act of the 1[st] respondent to deny the legitimate right of petitioner. 9. Presently I am at the question whether Ext.P11, order calls for **OP(C)No.3840/2011** 6 interference by this Court **.** In Ext.P10, application for stay 1[st] respondent stated in paragraph 7 that consequent to her election from the Ward in question, she was elected as President of the Panchayat and that Ext.P2, order against her will lose her right to act as President as well and if during pendency of the appeal a new President is elected in her place and ultimately the appeal is allowed it will cause irreparable injury, hardship and loss to her. In Ext.P11, order though learned Additional District Judge has not used the expression that Ext.P2, order is stayed, has stated that 1[st] respondent is permitted to participate in the meetings and proceedings of the Panchayat until further orders but, she shall not exercise right of voting in such meetings. True that in Ext.P11, order there is no specific direction that there will a stay of Ext.P2, order declaring petitioner as elected. But I must understand that when the learned Additional District Judge said that 1[st] respondent could continue in the office as elected member from the Ward in question it meant that during the time 1[st] respondent continued so, no other person could occupy the seat of 1[st] respondent. In otherwords by implication it meant that petitioner could not be administered oath during the time Ext.P11, order remained in force. 10. Now I shall refer to the decision in **Padmakumar v.** **Unnikrishnan** relied on by learned counsel for petitioner. True that the Act does not specifically provided any power to the District Court to grant stay of order but the power to grant stay is inherent with the power to entertain and dispose of the appeal. That principle has been stated in **Padmakumar v.** **OP(C)No.3840/2011** 7 **Unnikrishnan** also. There, though reference has been made to Sec.107 of the Act which I have referred above (that an order under Sec.100 or Sec.101 of the Act shall take effect from the date of order), in paragraph 8 it is held that it will be open to the appellate authority to pass such orders as it deem fit and appropriate in the facts and circumstances of each case so as to preserve right of the parties. If a rigid Interpretation is given to Sec.107 of the Act to say that when an order is passed under Sec.100 or Sec.101 of the Act it takes effect from the date of the order and hence there is no question of stay of operation of such order or as in this case any other person is declared elected, by the time appeal is preferred oath will be administered and the appeal may become infructuous. I am not inclined to think that the appellate court is helpless in such situation. I stated that the power to grant stay is inherent with the power to entertain and dispose of the appeal. That is because until the appeal is disposed of, in appropriate cases appellate court must have the power to ensure that status quo is maintained. In fact that is the principle laid down in **Padmakumar v. Unnikrishnan** also notwithstanding the observation that stay of operation of the order can be passed only before it comes into force. As stated in paragraph 8 of the said decision learned Judge has to invoke the power to grant stay in appropriate cases. In that case, the appellate court granted a blanket stay of operation of order under challenge which learned Judge modified permitting the appellant to participate in the meeting and proceedings of Panchayat but, directing that she could not exercise right of **OP(C)No.3840/2011** 8 voting in such meetings. This Court directed the Election Commission not to proceed to issue any fresh notification pursuant to the judgment of learned Munsiff until the disposal of the appeal. In the present case, a fresh election is not required since petitioner has been declared elected by Ext.P2, order. Ext.P11, order does not specifically say that declaration of petitioner as the elected candidate is stayed. But in effect, when learned Additional District Judge stated that 1[st] respondent will continue to be a member of the Panchayat entitled to attend the meetings but without any right of voting, it meant that until Ext.P11, order remained in force, question of any other person occupying the seat of the 1[st] respondent did not arise. That means, impliedly, petitioner could not assume office in place of the 1[st] respondent so far as Ext.P11, order remaining in force. 11. Learned counsel for petitioner has invited my attention to Sec.152 (5) of the Act. But, that should be subject to the decision of the appellate court and the time for taking oath should run from the date of appellate judgment and at any rate, it is open to the petitioner to show sufficient cause for not assuming office within the stipulated time. As rightly pointed out by the learned counsel for 1[st] respondent when the appeal is disposed of, there is merger of Ext.P2, order with the order of the appellate court and if the order of appellate court is in favour of petitioner, certainly the time to take oath will run from the date of appellate order. **OP(C)No.3840/2011** 9 12. In the above view of the matter I do not find reason to interfere with Ext.P11, order. 13. But the grievance of petitioner is required to be taken into account. Learned Additional District Judge has to hear and dispose of the appeal as early as possible if preliminary steps are over. If question of maintainability of the appeal on the ground of incompetency of the court is raised, learned Additional District Judge has to dispose of that objection as a preliminary question. Original Petition is dismissed. **THOMAS P.JOSEPH, Judge.** **cks**