MUHAMMED MASTER Vs. ABU HAJI

JUDGEMENT

(1.) AT the Panchayat election held on 18-9-1979 the petitioner-appellant was returned as a member of the AThavanadu Panchayat. The 2nd respondent who also contested the election questioned the validity of the appellant's election, before the 1st respondent, the Munsiff, Tirur, by filing election Petition No. 2 of 1979. Therein the 2nd respondent raised allegations of corrupt and illegal practices. However, the election petition was not accompanied by a list signed and verified (in the manner provided for) setting forth the full particulars of corrupt and illegal practices alleged in the petition as required by R. 5 (5) of the Kerala Panchayats (Decision of Election disputes) Rules, 1963 (hereinafter, the Rules ). The petitioner-appellant, therefore, relying on R. 5 (8) of the Rules, contended that the election petition is to be dismissed in limine on the ground of non-compliance of R. 5 (5) of the rules. The second respondent thereupon on 29-11-1979 filed an application, I. A. 2017 of 1979, seeking permission to produce a list of corrupt practices and to make appropriate amendments in the election petition. The 1st respondent-Munsiff on 11-12-1979 dismissed that application on the ground that there was no provision of law enabling him to receive such a list subsequent to the filing of the election petition. Thereafter by order dated 7-4-1980 the 1st respondent-Munsiff ordered recount of the votes. The returned candidate, the appellant herein then filed O. P. 1658 of 1980 in this Court. The Court directed the Munsiff to frame a specific issue as regards the maintainability of the petition on account of non-compliance of R. 5 (5) of the Rules and to decide that issue preliminarily. Pursuant to this direction the Munsiff raised issue number 4 which is as follows:- "4. Whether the petition is maintainable for not complying the provisions contained in R. 5 (5) of the Kerala Panchayats (Decision of Election Disputse) Rules, 1963. "

(2.) WHEN the 1st respondent-Munsiff took up the case for hearing on the preliminary issue, the 2nd respondent's counsel appears to have submitted that the grounds of corrupt practices alleged in -the Election petition are not pressed, that no evidence is being let in to substantiate the same and no arguments are being advanced on that score The learned Munsiff therefore as per the impugned order, Ext. P1 order of 18-8-1980, ruled: "but as far as this petition is concerned, when the allegations of corrupt practices taken as ground to set aside the election remains as not pressed, we have only to consider the other grounds taken to set aside the election and to see whether the petitioner has complied with the mandatory provisions with regard to that matters taken as a ground to set aside the election. That the petitioner has complied with. Hence I find that the petition is maintainable. Point answered accordingly. "

(3.) R. 24 of the Rules deals with withdrawal and abatement of election petitions. Under sub-rule (1) an election petition can be withdrawn only by leave of the Munsiff granted on an application made in that behalf. Sub-rule (2) requires that notice of an application for leave to withdraw an election petition shall be given to all other parties thereto and that it shall also be published in the office of the Munsiff and the Panchayat office concerned. Where there are more petitioners than one such an application for withdrawal can be filed only with the consent of all the petitioners-sub-rule (3) provides so. Sub-rule (4) directs the Munsiff to refuse leave, if in his opinion such application has been induced by any bargain or consideration which ought not be allowed. If the petition is allowed and leave is granted, notice of withdrawal has to be published in the office of the Munsiff and the Panchayat office concerned-sub-Rule 5 (b ). Within 14 days of such publication a person who might himself have filed the petition may apply to be substituted as petitioner in place of the withdrawing petitioner and on depositing Rs. 50/- as security for the costs of the petition, he shall be entitled to be substituted and to continue the proceedings upon such terms as the Munsiff may think fit. The same is the case when an election petition abates which would happen only by the death of the sole petitioner or of the sole survivor of several petitioners-subrules (7), (8) and (9 ). What is to be done if the sole respondent in the election petition dies before the conclusion of the trial or before the conclusion of the trial he notifies his intention not to oppose the petition or any of the respondents dies or so notifies before the conclusion of the trial and there is no other respondent who is opposing the petition is provided for in sub-rule (10 ). The Munsiff has to notify the same by publication in his office, in the office of the election authority and in the panchayat office and thereupon any person who might have been a petitioner may get himself substituted and continue the proceedings upon such terms as the munsiff may think fit.