MURALEEDHARAN V V Vs. SHAJI P G

JUDGEMENT

(1.) The Original Petition has been filed to set aside Ext.P7 order passed by the District Judge, Thrissur in A.S No. 39/2012 arising from O.P No. 30/2010 on the file of the Principal Munsiff's Court, Thrissur. Petitioner was a candidate in the election held on 25-10-2010 from Ward No. 15 of Puthoor Grama Panchayat in Thrissur district. The respondent herein was declared as the elected candidate. Petitioner challenged the election of the respondent as the returned candidate alleging that seven persons who voted for the respondent, had exercised double voting in as much as casting two votes in wards/panchayath. On the materials placed, upholding the challenge of the petitioner, seven votes cast in favour of the respondent were found void and his election was set aside. Petitioner was declared as the elected candidate. As against that decision, the respondent preferred the aforesaid appeal, A.S No. 39/2012 referred to above. In that appeal, he applied for a stay of the operation of the order setting aside his election and declaring the petitioner as the returned candidate. Petitioner, the respondent in such appeal, filed a counter opposing the stay petition contending that the decision rendered in the election petition became effective from the date of the order and pursuant thereto he has taken oath as a member of the panchayat. Petitioner and also the appellant moved separate petitions for getting some documents from the panchayat for consideration of the petition for stay. The learned District Judge dismissing those petitions for production of documents passed Ext.P7 order directing for status quo immediately before the passing of the final order in the election petition subject to the condition imposed that the appellant/respondent in the present petition, shall not have any voting power as a panchayat member in its meetings. Correctness of Ext.P7 order is impeached in this Original Petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. When the Original Petition came up for consideration, the respondent entered appearance. I heard the counsel on both sides. The learned counsel for the petitioner relying on Section 107 of the Kerala Panchayat Raj Act, 1994, hereinafter referred to as the 'Act', contended that an order under Section 100 and 101 of the Act shall take effect as soon as it is pronounced by the court. Pointing out that there is no similar provision as under the Representation of People Act, 1951, enabling the court which passed the order to keep in abeyance the operation of its order and also that of the superior forum when an appeal is filed to pass orders of stay the operation of the order challenged in the appeal, there is no identical provision in the Act, is the submission of the counsel. After Ext.P1 order rendered by the learned Munsiff in the election petition setting aside the election of the respondent and declaring the petitioner as the duly elected member, he has taken oath as a member of the panchayat, is the submission of the counsel. Ext.P5 certificate issued by the President of the panchayat and Exts.P6 and P7 photographs are also relied by the counsel to reinforce the submission made as above. Ext.P7 order passed by the court below directing status quo ante immediately before passing of the order, at any rate, cannot be sustained as the order has already come into effect on passing of such order and, further, the petitioner has sworn to as a member in the place of the respondent, is the submission of the counsel. Reliance is placed on "Fulena Singh v. Vijay Kumar Sinha and others", 2009 5 SCC 290 to contend that unreasonable orders of stay of operation of the order passed in election petition is unsustainable. The learned counsel relied on "Union of India and others v. Rakesh Kumar and others", 2010 4 SCC 50 to contend that there is no inherent right even to contest elections since there are explicit legislations over the same and, as such, when the statute command that the order passed in an election petition becomes effective on pronouncing of the order, with no power given even to superior forum to stay its operation even if a challenge is taken by way of an appeal, the direction issued by the court below for status quo ante immediately before passing of the order, in any view of the matter, is perverse and unsustainable. Per contra, the learned counsel for the respondent submitted that the absence of a provision in the Act with respect to stay of the operation of the order impugned does not interdict or place any embargo on the superior court before which an appeal is filed against such order in passing appropriate orders to keep in abeyance the operation of the order impugned which otherwise would render such appeal infructuous. There is no ground whatsoever to impeach Ext.P7 order passed by the learned District Judge, is the further submission of the counsel.

(2.) This court in "Padma Kumar v. Unnikrishnan", 2004 1 KerLT 1097 has considered the question whether an order of stay could be passed and if so, what are its limitations in an appeal preferred under Section 113 of the Act as against an order passed under Section 100 of the Act setting aside the election of a returned candidate in the election to the panchayat. Examining that question it has been held thus:

(3.) Section 114 of the Act lays down the procedure and the preceding one, Section 113, the right of appeal against the order of tribunal on any question of law or fact. Procedure in appeal covered by Section 114 of the Act must be given a liberal interpretation to hold that the appellate court is empowered to pass such orders as are necessary for effective disposal of the appeal safeguarding the interest of justice. Its powers are not curtailed by any provision under the Act. True, a blanket stay of operation of the order of the tribunal having regard to Section 107 of the Act is not permissible. However, as indicated, such orders as are necessary for an effective disposal of the appeal, limiting the operation of the order impugned, can be passed by the appellate court.