SOMASEKHARAN NAIR Vs. C K DIVAKARAN PILLAI

JUDGEMENT

(1.) Revision petitioner is the returned candidate elected from Ward No. II of Kulakkada Grama Panchayat in the general election held on 24.9.2005. His election was impeached by the 1st respondent, one among the candidates who contested the election. Respondents 2 to 4 were the other candidates who contested the election from that Ward. Petitioner had secured 667 votes, and his nearest rival, the 1st respondent (petitioner in the election petition), got only 267 votes. Election of the petitioner as the returned candidate was challenged by the 1st respondent filing an election petition as O.P.(Ele.). No. 10 of 2005 on the ground that he was a defaulter in respect of a loan due to the bank and revenue recovery proceedings were pending against him when he submitted his nomination to contest in the election. His election was also challenged on the ground that he was the Convener of a Beneficiary Committee formed in Kulakkada Grama Panchayat, which was selected as a nodal constituency for implementing a project of the State Government and Soil Conservation Department. As a Convener, he had entered into a contract for the implementation of the project, and amounts were received by him for the project. Since he held a contract under the State Government, at the time when he submitted his nomination, he was disqualified to contest the election under Section 34(1)(g) of the Panchayat Raj Act, was the case of the petitioner in the election petition. There was also an allegation that in the Form 2A application submitted along with his nomination paper, there was no disclosure of the outstanding liability with the bank from which he had availed loan and also that he was a defaulter to such bank. Revision petitioner resisted the petition disputing the allegations raised as baseless. He contended that he was not a defaulter to the bank as imputed and as a Convener to the Beneficiary Committee, he only supervised the work implemented for the project, for which, he was not entitled to any remuneration. His nomination did not suffer from any legal or factual infirmity was his contention. The other respondents, who had been impleaded as the candidates contested in the election from the Ward, all of them, remained ex parte.

(2.) Petitioner in the election petition examined three witnesses as PWs. 1 to 3. No evidence was let in by the 1st respondent/revision petitioner. Exts.X1 to X4 were marked as court exhibits. The learned Munsiff, on the materials placed, after hearing both sides, concluded that the revision petitioner/returned candidate was disqualified to contest the election since he was a defaulter to a public sector bank, and, thus, suffered the disqualification covered by Section 34(1)(j) of the Panchayat Raj Act. It was also held that as a Convener of the Beneficiary Committee formed in the Panchayat for implementation of a project with funds advanced by the Government and Soil Conservation Department and in view of the subsisting contract entered by the revision petitioner with the Government for implementation of that project, he was disqualified to contest the election. It was also held that in having not furnished the arrears of the amount outstanding from the revision petitioner to the Bank in the Form 2A application filed with his nomination paper, he had violated Section 52(1A) of the Panchayat Raj Act, and on that count also, his election was liable to be set aside. On such conclusions formed, the learned Munsiff allowed the election petition setting aside the election of the revision petitioner from Ward No. II of the Kulakkada Grama Panchayat. Appeal preferred against the decision of the learned Munsiff as A.S. No. 63 of 2006 before the District Court, Kollam was unsuccessful as the learned District Judge on reappreciating the materials, dismissed the appeal confirming the setting aside of the election. Concurrent decision rendered by two courts below are challenged in the revision.

(3.) I heard the Counsel on both sides. The learned Counsel for the revision petitioner assailed the orders of the courts below contending that he was not a defaulter to the bank when he filed the nomination and contested the election. It is submitted that though he had availed a loan from the bank and revenue recovery proceedings were initiated for realisation of that debt, such proceedings had been stayed by the Government at the time when he submitted his nomination. It is further contended that the contract entered as a Convener of a Beneficiary Committee for implementation of a project would not invite any disqualification to contest the election as covered by Section 34(1)(g) of the Panchayat Raj Act. He had stated in Form 2A about the loan transaction with the bank but not the arrears due on such loan, at the most, is only an omission which cannot be considered as decisive to conclude that there was material suppression in Form 2A rendering the nomination void. On the other hand, the learned Counsel appearing for the 1st respondent/petitioner in the election petition contended that the concurrent findings by both the courts below holding that the revision petitioner/returned candidate was disqualified as being a defaulter under Section 34(1)(g) and 34(1)(j) of the Panchayat Raj Act and also that the Form 2A furnished by him with his nomination was a fake, and, therefore, order setting aside his election does not call for any interference in exercise of the revisional jurisdiction.