MOHANAN Vs. JOSEPH

JUDGEMENT

(1.) Challenge in the revision is against the judgment of the learned District Judge, Wayanad in appeal reversing the Order of the learned Munsiff, Sulthan Bathery, who set aside the election of the respondent. The respondent was elected as member from Ward No. 7 in Poothadi Grama Panchayat in the General Election held on 26.09.2005. His election was challenged by petitioner, one among the contesting candidates from that Ward who came next to the returned candidate with a margin of seven votes less. Having secured the majority of votes, respondent was elected the returned candidate from that Ward. Petitioner assailed the election of respondent contending that in Form 2A application furnished with his nomination paper, all his assets and that of his wife were not disclosed. Though he listed several items as not included in the assets of respondent and his wife, in Form 2A after trial, the learned Munsiff found non-furnishing of three items alone among those listed can be accepted. Non-furnishing of information over those three items would render Form 2A furnished by the returned candidate a fake was the view formed by the learned Munsiff to set aside his election. However, in the appeal preferred by the respondent, learned District Judge after re-appreciating the pleadings and also the evidence came to the conclusion that non-supply of information over the three items pointed out by petitioner in his Original Petition which found approval with the learned Munsiff would not have materially affected the result of the election, and as such, conclusion formed by the Munsiff that Form 2A application of the respondent was a fake to set aside his election, cannot be sustained. In that view of the matter, the decision rendered by the learned Munsiff was reversed and the election petition was dismissed. Against the judgment so rendered by the appellate court, petitioner has come up with this revision.

(2.) Learned counsel for petitioner argued that in appreciating a challenge for setting aside election on the ground that Form 2A furnished with the nomination paper by the returned candidate was fake, whether that had materially affected the result of the election has no bearing as the only question is Form 2A furnished by returned candidate was fake or not. S. 102(1)(ca) of the Kerala Panchayat Raj Act, for short, the 'Act', deal with the grounds for declaring an election of returned candidate to be void, and, where the details furnished by the elected candidate under S. 52(1A) of the Act were fake, there is no requirement to establish further that such a fake document has materially affected the result of the election, according to the counsel. Only in respect of grounds covered by S. 102(1)(d) of the Act, it has to be shown over and above establishing any of the ground there under, according to the counsel, that it has resulted in materially affecting the result of the election. Upsetting of the decision of the learned Munsiff setting aside the election of the returned candidate by the learned District Judge in appeal holding that petitioner over and above showing that Form 2A furnished by the returned candidate was a fake had to establish that such fake Form furnished materially affected the result of the election is erroneous and unsustainable, submits the counsel. So much so, the decision rendered by the learned Munsiff has to be restored setting aside the judgment of the learned District Judge, is the submission of the counsel. No ground has been made out for exercise of revisional jurisdiction to upset the decision of the learned District Judge which has been rendered after re-appreciation of the entire materials in the case, is the submission of the counsel for respondent. He also contended that even if the view taken by the learned District Judge over the ground falling under S. 102(1)(ca) of the Act is erroneous, on the facts and circumstances established in the case and materials produced it cannot be stated that Form 2A furnished with the nomination by the returned candidate is a fake, to render his election void.

(3.) I do find some force in the submission made by learned counsel for petitioner that the view taken by the learned District Judge that over and above establishing that, Form 2A furnished by the returned candidate was fake how the result of the election was materially affected thereby is also to be established, to declare the election of the returned candidate as void, is erroneous and unacceptable. As rightly pointed out by the learned counsel only in respect of the four grounds covered by S. 102(1)(d) of the Act over and above establishing the ground there under it has to be shown further that the result of the election has been materially affected by the ground so proved to declare the election of the returned candidate void. The grounds on which election of a returned candidate can be declared as void is covered by S. 102 of the Act which reads thus: