V.P. BEENA Vs. P. SEEMANTHINI

JUDGEMENT

(1.) ELECTIONS to Ward No.9 of Anakkara Grama Panchayat (Neyyur constituency of Anakkara Panchayat) was held on 25.10.2010. The petitioner, the respondent herein and another person by name K.P. Beena contested in the elections. The results were declared on 27.10.2010. The petitioner was declared elected by a margin of one vote and she took oath as a member of the Grama Panchayat. The respondent herein thereafter filed Election O.P.No.9 of 2010 under section 87 of the Kerala Panchayat Raj Act, 1994 ("the Act" for short) challenging the election of the petitioner. She contended that two voters viz, Smt. Vasantha and Sri.Balakrishnan, whose names appeared in the electoral roll of two other Grama Panchayats, had cast their votes, not only in the Anakkara Panchayat, but in the other Grama Panchayats as well, that they had cast their votes in favour of the petitioner and therefore, the said votes which are void votes, are liable to be excluded. On these grounds, she sought a declaration declaring the the election of the petitioner as void and to declare that she has been duly elected. The petitioner as well as the second respondent in the election petition entered appearance, but the petitioner alone filed a counter affidavit resisting the election petition. After trial, the Court of the Munsiff -Magistrate of Pattambi allowed Election O.P.No.9 of 2010 by Ext.P1 order passed on 27.8.2013 and declared the election of the petitioner from Neyyur constituency of Anakkara Panchayat to be void and declared the respondent (the petitioner in the election petition) elected from Neyyur constituency of Anakkara Grama Panchayat.

(2.) AGGRIEVED thereby, the petitioner filed A.S.(Election) No.130 of 2013 in the Court of the District Judge of Palakkad. Ext.P2 is a copy of the memorandum of appeal. Along with the appeal, she filed I.A.No.1510 of 2013 seeking stay of Ext.P1 order passed by the Court of the Munsiff -Magistrate, Pattambi in Election O.P.No.9 of 2010. The said application which was filed on 2.9.2013, was heard and dismissed by Ext.P4 order passed on 11.9.2013. By that order, the appellate court held that an interim order of stay if passed would create difficulties in the functioning of the office of the Anakkara Grama Panchayat as the petitioner in the election petition has been declared as elected and taken oath as a member and that it would not be conducive to justice to pass an interim order of stay. The appellate court also directed both counsel to be ready for arguments in the appeal on 7.10.2013, to which date the appeal was posted. Ext.P4 order is under challenge in this original petition filed under Article 227 of the Constitution of India.

(3.) I heard Sri.P.C.Sasidharan, learned counsel appearing for the petitioner and Sri.T.Krishnan Unni, learned Senior Advocate appearing for the respondent. I also had the assistance of hearing Sri.Murali Purushothaman, learned standing counsel appearing for the State Election Commission. Sri.P.C.Sasidharan, learned counsel appearing for the petitioner contended that though Ext.P1 order declaring the election of the petitioner to be void took effect as soon as it was pronounced by the court, the respondent who was declared elected by the very same order could have assumed office only after a notification is published by the State Election Commission on its notice board, that in the instant case no such notification was published and therefore, the assumption of charge by the respondent is illegal. The learned counsel contended that the lower appellate court erred in declining to grant an interim order of stay on the ground that the respondent has taken oath as a member of the Grama Panchayat. Referring to the observations in paragraph 8 of the impugned order to the effect that in Muraleedharan v.v. v. P.G.Shaji (supra) the candidate declared elected had not taken oath, but in the instant case the candidate declared elected (respondent) has taken oath and assumed charge of office and therefore the factual situation in the instant case is different, the learned counsel for the petitioner invited my attention to paragraph 1 of the decision in Muraleedharan v.v. v. P.G.Shaji (supra) and submitted that the respondent in that case had taken oath and it was thereafter that an interim order passed by the District Judge in appeal directing the status quo immediately before the passing of the final order in the election petition to be maintained and notwithstanding the said fact, this Court did not interfere with the said interim order except to direct that the respondent can continue to function as a member, but with condition that he will not have any voting right nor collect any remuneration and therefore the impugned order is liable to be set aside on that short ground. The learned counsel contended that as the assumption of office by the respondent was not proper or legal, the petitioner is entitled to an interim order allowing her to continue in office until the disposal of the appeal.