V.P. Beena v. P. Seemanthini

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935** ## **OP(C).No. 3338 of 2013 (O)** **--------------------------AS.NO. 130/2013 OF DISTRICT COURT, PALAKKAD OP.NO. 9/2010 OF MUNSIFF MAGISTRATE COURT, PATTAMBI ----------------------** ## **PETITIONER/PETITIONER :** **-----------------------------------------** **V.P. BEENA, AGED 45 YEARS, W/O.PERUVANGHATT MANI, ANAKKARA VILLAGE, NAYYUR DESOM,OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.P.C.SASIDHARAN** **RESPONDENT/1ST RESPONDENT :** **------------------------------------------------------** **P. SEEMANTHINI, AGED 63 YEARS, W/O.POOPPALA RAGHAVAN, ANAKKARA VILLAGE, NAYYUR DESOM,OTTAPALAM TALUK, PALAKKAD DISTRICT.PIN-679 101** **BY SRI.T.KRISHNANUNNI,SENIOR ADVOCATE ADV. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA BY ADV.SRI.MURALI PURUSHOTHAMAN,SC,STATE ELECTION COMMISSION** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **OP(C).No. 3338 of 2013 (O) ----------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ------------------------------------EXHIBIT P1 COPY OF THE ORDER IN ELECTION PETITION NO.9/2010 EXHIBIT P2 COPY OF THE APPEAL MEMORANDUYM-AS (ELECTION) 130/2013 EXHIBIT P3 COPY OF THE STAY PETITION EXHIBIT P4 COPY OF THE ORDER IN IA. 1510/2013 IN AS (ELECTIION) 130/2013** ## **RESPONDENT(S)' EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.N.RAVINDRAN, J.** ## **-------------------------** ## **O.P.(C) No. 3338 of 2013 --------------------------------Dated this the 24[th] day of October, 2013** ## **J U D G M E N T** Elections to Ward No.9 of Anakkara Grama Panchayat (Neyyur constituency of Anakkara Panchayat) was held on 25.10.2010. The petitioner, the respondent herein and another person by name K.P. Beena contested in the elections. The results were declared on 27.10.2010. The petitioner was declared elected by a margin of one vote and she took oath as a member of the Grama Panchayat. The respondent herein thereafter filed Election O.P.No.9 of 2010 under section 87 of the Kerala Panchayat Raj Act, 1994 (“the Act” for short) challenging the election of the petitioner. She contended that two voters viz, Smt. Vasantha and Sri.Balakrishnan, whose names appeared in the electoral roll of two other Grama Panchayats, had cast their votes, not only in the Anakkara Panchayat, but in the other Grama Panchayats as well, that they had cast their votes in favour of the petitioner and therefore, the said votes which are void votes, are liable to be excluded. On these grounds, she sought a declaration declaring the the election of the petitioner as void and to declare that she has been duly elected. The petitioner as well as the second respondent in the election petition entered appearance, but the 2 O.P.(C) No.3338/2013 petitioner alone filed a counter affidavit resisting the election petition. After trial, the Court of the Munsiff-Magistrate of Pattambi allowed Election O.P.No.9 of 2010 by Ext.P1 order passed on 27.8.2013 and declared the election of the petitioner from Neyyur constituency of Anakkara Panchayat to be void and declared the respondent (the petitioner in the election petition) elected from Neyyur constituency of Anakkara Grama Panchayat. 2. Aggrieved thereby, the petitioner filed A.S.(Election) No.130 of 2013 in the Court of the District Judge of Palakkad. Ext.P2 is a copy of the memorandum of appeal. Along with the appeal, she filed I.A.No.1510 of 2013 seeking stay of Ext.P1 order passed by the Court of the Munsiff-Magistrate, Pattambi in Election O.P.No.9 of 2010. The said application which was filed on 2.9.2013, was heard and dismissed by Ext.P4 order passed on 11.9.2013. By that order, the appellate court held that an interim order of stay if passed would create difficulties in the functioning of the office of the Anakkara Grama Panchayat as the petitioner in the election petition has been declared as elected and taken oath as a member and that it would not be conducive to justice to pass an interim order of stay. The appellate court also directed both counsel to be ready for arguments in the appeal on 7.10.2013, to which date the appeal was posted. Ext.P4 3 O.P.(C) No.3338/2013 order is under challenge in this original petition filed under Article 227 of the Constitution of India. 3. The principal contention raised in the original petition is that the appellate court misdirected itself, when it proceeded on the basis that the fact situation in the instant case and the fact situation in **Muraleedharan V.V. v. P.G.Shaji** [2012 (2) KHC 209] are different, that in the reported decision, the candidate who was declared elected by the court had not taken oath, but in the instant case, the candidate who was declared elected has taken oath and therefore, the principles laid down in the said decision can have no application. Yet another contention raised is that, pursuant to the declaration made by the civil court in Ext.P1 judgment, the State Election Commission has not issued a notification declaring the petitioner in the election petition to be the returned candidate, that there was no proper meeting in the Panchayat for swearing in the petitioner in the election petition as a member of the Panchayat and in such circumstances, even assuming that there was administration of oath, such oath taking is of no consequence. 4. I heard Sri.P.C.Sasidharan, learned counsel appearing for the petitioner and Sri.T.Krishnan Unni, learned Senior Advocate appearing for the respondent. I also had the assistance of hearing Sri.Murali O.P.(C) No.3338/2013 4 Purushothaman, learned standing counsel appearing for the State Election Commission. Sri.P.C.Sasidharan, learned counsel appearing for the petitioner contended that though Ext.P1 order declaring the election of the petitioner to be void took effect as soon as it was pronounced by the court, the respondent who was declared elected by the very same order could have assumed office only after a notification is published by the State Election Commission on its notice board, that in the instant case no such notification was published and therefore, the assumption of charge by the respondent is illegal. The learned counsel contended that the lower appellate court erred in declining to grant an interim order of stay on the ground that the respondent has taken oath as a member of the Grama Panchayat. Referring to the observations in paragraph 8 of the impugned order to the effect that in **Muraleedharan v.v. v. P.G.Shaji** (supra) the candidate declared elected had not taken oath, but in the instant case the candidate declared elected (respondent) has taken oath and assumed charge of office and therefore the factual situation in the instant case is different, the learned counsel for the petitioner invited my attention to paragraph 1 of the decision in **Muraleedharan v.v. v. P.G.Shaji** (supra) and submitted that the respondent in that case had taken oath and it was thereafter that an interim order passed by the District Judge 5 O.P.(C) No.3338/2013 in appeal directing the status quo immediately before the passing of the final order in the election petition to be maintained and notwithstanding the said fact, this Court did not interfere with the said interim order except to direct that the respondent can continue to function as a member, but with condition that he will not have any voting right nor collect any remuneration and therefore the impugned order is liable to be set aside on that short ground. The learned counsel contended that as the assumption of office by the respondent was not proper or legal, the petitioner is entitled to an interim order allowing her to continue in office until the disposal of the appeal. 5. Per contra, Sri.T.Krishnan Unni, learned Senior Advocate appearing for the respondent contended relying on the decision of the Apex Court in **Smt.Indira Nehru Gandhi v. Raj Narain and Another** (AIR 1975 SC 1590) that while the right to appeal is statutory, the power to grant stay is discretionary, that the court below has in the instant case exercised the discretion in favour of the respondent and therefore, this Court exercising jurisdiction under article 227 of the Constitution of India may not interfere with the exercise of such discretion and pass an interim order in favour of the petitioner. Referring to the provisions contained in the Representation of the People Act, 1950 the learned counsel contended that there is no O.P.(C) No.3338/2013 6 stipulation in the Representation of the People Act, 1950 as in section 107 of the Act to the effect that the order of the court setting aside the election petition will take effect forthwith, that in the instant case the order declaring election of the petitioner void and declaring the respondent elected took effect on 27.8.2013, that immediately thereafter the respondent took oath and assumed office on 2.9.2013, that an application for stay was filed only on that day and that it was taking note of these facts, which are borne out by Exts.B1 to B4 produced by the respondent in the lower appellate court, that the lower appellate court declined to grant an interim order of stay. The learned counsel contended that as the respondent has been duly declared elected and she has taken oath of office, an interim order permitting the petitioner to continue in office as a member of the Panchayat is not warranted or called for. 6. Sri.Murali Purushothaman, learned standing counsel appearing for the State Election Commission submitted with reference to written instructions that on the terms of section 105 and 106 of the Act it is for the Panchayat to cause publication of the order of the court in the notice board of the Panchayat in cases where election of a returned candidate is set aside and the petitioner in the election petition is declared elected, that in cases where the election is set 7 O.P.(C) No.3338/2013 aside, a copy of the order is published on the notice board of the State Election Commission and also forwarded to the President of the Panchayat concerned for due publication and for taking further action to fill up the vacancy that has thus arisen. The learned standing counsel submitted that publication by the Commission in its notice board was not required in the instant case and no notification by the Commission was required as the respondent was declared elected by the court and had taken oath and assumed office. 7. I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the pleadings and the materials on record. The question whether this Court exercising jurisdiction under Article 226 or 227 of the Constitution of India can pass an interim order allowing a candidate whose election has been set aside to continue in office was considered by a learned single Judge of this Court in **Padmakumar v. Unnikrishnan** (2004 (1) KLT 1097). Though this Court held that the appellate authority can pass an interim order in the appeal from an order setting aside the election of the returned candidate, as the order setting aside the election takes effect immediately on the date the order is pronounced, the appellate authority cannot pass an order in violation of section 107 of the Act. In other words, it was held that a blanket order staying the O.P.(C) No.3338/2013 8 order setting aside the election cannot be passed. This Court also held that the appellate court can pass orders like staying the byeelection and also permitting the member whose election has been set aside to continue in office by imposing restrictions on his rights. Later in **Muraleedharan v.v. v. P.G.Shaji** (supra) a learned single Judge of this Court held that though the statutory mandate under section 107 of the Act is inviolable and this Court cannot by-pass it, this Court can stay further steps in continuation of the order passed by the trial court and that even if the election of the returned candidate is set aside and the petitioner in the election petition is declared as elected, the mere fact that the order has come into force by virtue of the operation of section 107 of the Act will not interdict the appellate court from passing an order restraining or prohibiting the successful petitioner from taking oath as a member or passing such other orders enabling the returned candidate, who was previously elected in the election and sworn in as a member of the Panchayat, to continue as a member of the Panchayat but subject to conditions restraining him from voting and receiving remuneration. The power of this Court to pass interim orders staying the bye-election to the office of President of Ramapuram Grama Panchayat which had fallen vacant as a result of the order in an election petition was considered by me in O.P.(C) O.P.(C) No.3338/2013 9 No.119 of 2013. Repelling the contention that only the bye-election to the Grama Panchayat can be stayed and not the election to the office of the President of the Panchayat which had fallen vacant as a result of the declaration made by the civil court, I held that the principles which govern the grant of an order staying the bye-election to the Grama Panchayat and the continuance of the member whose election has been set aside in office will apply with equal force to the bye-election to the office of the President of the Panchayat that has fallen vacant as a result of the election petition being allowed. It was held that otherwise, in the event of the appeal being allowed and the election petition being dismissed, the appellate court would not be in a position to set the clock back for the reason that the election of the President pending the appeal, would not be subject to the result of the appeal. 8. In the instant case, the appellate court has declined to pass an interim order in favour of the petitioner permitting her continuance in office as a member of the Panchayat on the short ground that the respondent herein has taken the oath of office as a member of the Panchayat. It is evident from the decisions of this Court in **Padmakumar v. Unni Krishnan** (supra) and **Muraleedharan v.v. v. P.G.Shaji** (supra) that this Court cannot by-pass the effect of section 107 of the Act. This Court has however held that the appellate court O.P.(C) No.3338/2013 10 can pass an interim order staying the bye-election and allowing continuance in office of the member who has been unseated subject to terms and conditions to be fixed by the appellate court. From a reading of the impugned order, I am of the considered opinion that the appellate court has declined to grant an order of stay on the short ground that the respondent herein (petitioner in the election petition) has taken oath of office and is a member of the Panchayat and that in **Muraleedharan v.v. v. P.G.Shaji** (supra) which was relied on by the learned counsel appearing for the appellant, the fact situation was different in the sense that there was no such assumption of office as in the instant case. From a reading of paragraph 8 of the impugned order, I am satisfied that but for such misconception the appellate court would have considered whether notwithstanding such assumption of charge or taking of oath, the petitioner has made out a case warranting the grant of an interim order allowing her to continue in office. From a reading of paragraph 8 of the impugned order, I am persuaded to agree with the learned counsel appearing for the petitioner that the appellate court should reconsider the application for stay in the light of the observations and findings of this Court in paragraph 6 of the decision in **Muraleedharan v.v. v. P.G.Shaji** (supra) and in paragraphs 7 and 8 of the decision in **Padmakumar v.** O.P.(C) No.3338/2013 11 **Unni Krishnan** (supra). It is not in dispute that the appeal which originally stood posted on 7.10.2013 now stands posted for hearing before the appellate court on 6.11.2013. In such circumstances, I am of the considered opinion that the appellate court should reconsider the application for stay on the next posting date i.e., 6.11.2013 itself. I accordingly allow the original petition, set aside Ext.P4 order dated 11.9.2013 on I.A.No.1510 of 2013 in A.S.(Election) No.130 of 2013, restore the application to file and direct the appellate court to pass fresh orders on the application after hearing the learned counsel on both sides expeditiously and in any event within one week from 6.11.2013. The parties shall appear through counsel before the court below on 6.11.2013 without fail. ## **P.N.RAVINDRAN,** ## **(JUDGE)** vps