THOMAS RAJAN Vs. PHILIP JOHN

JUDGEMENT

(1.) ON 19-9-1979 the petitioner, who, by profession, is an advocate, was declared to have been elected to be a Councillor of the Municipal council, Kottayam from ward No. IV in the election held in September 1979; his election, however, was declared invalid under S. 65 (1) (a) read with S. 62 (2) (f) of the Kerala Municipalities Act, 1960 ( Act 14 of 1961) for short'the Act', in and by the order dated 25-7-1981, a true copy of which is Ext. P-1, of the 5th respondent, the District Judge, Kottayam, made in O. P. (Election Petition)No. 6 of 1979, hereinafter referred to as the Election Petition. The challenge in this writ petition filed under Art. 226 and 227 of the Constitution is directed against Ext. P-1 order. The petitioner herein was counter petitioner no. 1 in the Election Petition; and respondents 1 to 4 herein were the petitioner and respondents 2 to 4 therein.

(2.) MAINLY two grounds were urged in the Election Petition to challenge the validity of petitioner's election: (1) corrupt practices falling under S. 65 (1) (b) of the Act had been committed by the petitioner herein; and (2) he was employed as a legal practitioner against the Council which is a disqualification for candidature under S. 62 (2) (f) read with S. 65 (1) (a) of the Act. Under Issue No. 2, the District Judge held that the corrupt practices alleged had not been established; but, under Issue No. 3 the District judge held that the petitioner herein was employed as a legal practitioner against the Council. In the result, as already noticed, the District Judge declared that the election of the petitioner herein to be a Councillor from ward No. IV was invalid.

(3.) FROM the facts referred to in Para. 17 of Ext. P-1 order it is found that OS. No. 729 of 1978 on the file of the Munsiff of Kottayam was a suit filed by 22 persons against the Kottayam Municipality represented by the municipal Commissioner, seeking permanent injunction restraining the defendant municipality from evicting them (plaintiffs) from the building situated in the property belonging to the defendant Municipality. It would also appear that in c. M A. No. 56 of 1979 filed by the Municipality against an order of temporary injunction granted by the Munsiff's Court in I. A. No. 1768 of 1978 in favour of the plaintiffs, the petitioner herein had filed a memo of appearance for the respondents on 4-8-1979. The attested copies of the vakalath for the plaintiffs and the memo of appearance for the respondents filed in the suit and the appeal were produced and marked in the Election Petition as Exts. A-2 and A-3. The argument of the petitioner herein was that, though the petitioner bad filed a vakalath on 18-12-1978 and the memo on 4-8-1979, he had given up the engagement prior to his filing the nomination and, therefore, he was not disqualified. Reliance was placed on the attested copy of a letter stated to have been written by the petitioner herein on 5-8-1979 (marked Ext. B-2 in the election petition ). The District Judge rejected the plea based on Ext. B-2 alleged to have been written on 5-8-1979, holding that at best it would only show that he had given up the engagement in the C M. Appeal, which fact could not ipso facto mean that he had given up the engagement in the suit also. Moreover, the petitioner herein did not succeed in establishing that a memo for permission to withdraw from the engagement bad been filed in Court, much less in proving that he had obtained the leave of the court in that behalf.