SHAJI MATHEW Vs. THOMAS CHACKO

JUDGEMENT

(1.) Revision petitioner is the returned candidate elected from Ward No. VIII of Mankulam Panchayat in the general election held on 24/09/2005. His election was impeached by the 1st respondent, one among the defeated candidates by filing Election Petition No. 15 of 2005 before the Munsiff Court, Devikulam on the ground he was disqualified to contest the election as he was a defaulter with dues outstanding to the Government as on the date of filing of his nomination, and that revenue recovery proceedings for arrears for the amount due were then pending against him. Nomination paper of the revision petitioner was improperly accepted despite the objection raised before the returning officer was the case of the 1st respondent / the petitioner in the election petition. Since the revision petitioner was a defaulter, he was disqualified to contest the election, and as such, his election is liable to be declared void and set aside was the case presented in the election petition. The revision petitioner / the 1st respondent in the election petition while admitting that he had availed a loan from Kerala State Backward Development Corporation Limited contended that he was not a defaulter of any revenue arrears due to the Government. The amount due to the Corporation was not an amount due to the Government or Panchayat was his case to contend that no disqualification would visit him for contesting the election as a member of the Panchayat. He further contended that the Corporation had issued him a letter granting him time for payment of the dues and that was in force when he filed his nomination and contested the election. The learned Munsiff, on the materials produced and hearing the counsel on both sides, concluded that the revision petitioner has not suffered any disqualification since the dues from him to the Kerala State Backward Development Corporation Limited could not be considered as dues to the State Government or to the Panchayat. After holding so, for the reason that he had suppressed material particulars in Form 2A application furnished with his nomination paper, in not disclosing his dues towards the Kerala State Backward Development Corporation Limited, a public sector undertaking, it was held that his election was void on the ground covered under S.102(1)(ca) of the Panchayat Raj Act. Concluding so, the learned Munsiff declared the election of the revision petitioner as void, and set aside his election. Challenge raised by the returned candidate preferring an appeal as AS No. 89 of 2007 before the District Judge, Thodupuzha impeaching the order of the learned Munsiff was negatived by the learned District Judge concurring with the decision of the Court below that he had suppressed materials facts in the declaration filed with the nomination paper, and, therefore, his election was rightly declared void. Concurrent decision of the two Courts below, as indicated above, is challenged in the revision by the returned candidate.

(2.) The learned counsel for the revision petitioner inviting my attention to the allegations raised in the petition contended that other than the allegation imputing disqualification against the returned candidate under S.34(1)(j) of the Panchayat Raj Act as being a defaulter against whom revenue recovery proceedings are pending, there was no case even impliedly that Form 2A submitted by the returned candidate was a fake in suppressing of material facts or furnishing incorrect or false statements in answer to the various details to be filled up under that Form. The counsel read over to me paragraph 5 of the election petition to emphasise that there was no allegation imputing that Form 2A submitted by the petitioner was a fake or that he had violated S.52(1A) of the Panchayat Raj Act rendering his election void under S.102(1)(ca) of the above Act. When there was no case from the petitioner in the election petition or any allegation as indicated above, it is submitted, the Court below went wrong in raising a point on that question and deciding it against the petitioner on the basis of the materials tendered in the case. The learned counsel further submitted that the learned Munsiff had raised a point on that question as an additional point after recording the evidence as if such a question was raised as a specific ground by the petitioner in the election petition, which, in fact, was not correct. The learned District Judge in appeal has not considered the lack of pleading, and the non - raising of any case in the election petition that Form 2A furnished by the returned candidate is a fake, according to the counsel, while upholding the order of the learned Munsiff setting aside the election. The learned counsel for the revision petitioner submitted that the order of the learned Munsiff as confirmed by the learned District Judge is liable to be set aside invoking the revisional jurisdiction of this Court. The learned counsel for the 1st respondent / petitioner in the election petition contended that both the inferior Courts after meticulous consideration of the materials produced have rightly and correctly come to the conclusion that in suppressing the material particulars of the loan due to a public sector undertaking in Form 2A application, the petitioner had violated the mandate under S.52(1A) of the Panchayat Raj Act and on that ground, his election was to be declared void under S.102(1)(ca) of the above Act In the petition, apart from raising allegations under S.34(1)(j) of the Panchayat Raj Act imputing disqualification against the petitioner in view of the arrears due and revenue recovery proceedings pending against him to the Kerala State Backward Development Corporation Limited, it was specifically imputed, according to the counsel, that his election was liable to be set aside under S.102(1)(ca) of the Panchayat Raj Act. That being so, according to the counsel, the concurrent decision rendered by the Courts below that having suppressed material particulars of the amount due to the public sector undertaking the Form 2A application furnished by the returned candidate was a fake, and, therefore, his election was liable to be declared as void and set aside, does not warrant any interference.

(3.) I have considered the rival submissions made by the counsel with reference to the order passed by the learned Munsiff and judgment rendered by the learned District Judge confirming that order in appeal. Petitioner in the election petition has impeached the election of the returned candidate / the revision petitioner on the ground that he was a defaulter to a Corporation and revenue recovery proceedings were pending against him in respect of such dues when he filed his nomination to contest the election. Disqualification was imputed against the petitioner by raising such an allegation under S.34(1)(j) of the Panchayat Raj Act, which reads thus: