PADMAKUMAR Vs. UNNIKRISHNAN

JUDGEMENT

(1.) Petitioner herein was a candidate who challenged the election of the first respondent herein by filing an election petition before the Munsiffs Court, Karunagappally. Election held was under the Kerala Panchayat Raj Act (in short the Act). The first respondent herein was declared elected from Ward No.7 of Clappanna Grama Panchayat. The Munsiffs Court declared the election as void under S.100 of the Act. The first respondent herein has preferred an appeal before the District Court, Kollam as R.F.A. (Ele) No.61/2003, which is pending consideration. Hence, the merits of the contention regarding the validity of election is not a matter presently arising for consideration within writ proceedings.

(2.) The limited question raised in this Writ Petition is regarding the power of the Appellate Court to grant a stay in election matters under the Act. As per Ext. P3 order dated 8.5.2003 in I.A.No. 572/2003 passed by the District Judge, Kollam, which reads Objection filed. Interim stay and notice to respondent 1 to 3 by 9.6.2003. The order obviously does not refer to any of the objection raised. Challenging the said order the petitioner has filed this Writ Petition.

(3.) Learned counsel appearing for the petitioner raised mainly two contentions: (1) that the order is non speaking and without considering the objections raised, (2) that the order passed by the Munsiffs Court declaring the election as void cannot be stayed by the Appellate Court. He also placed reliance on some of the provisions in the Act in support of his contentions. Learned counsel appearing for the respondents on the other hand contended that the power of the Appellate Court is very wide and no limitation can be placed on the power of the appellate authority in the matter of granting the interim order. It is his further case that granting any interim order is incidental to the appellate power. Learned standing counsel appearing for the Election Commission submitted that there is difference on the appellate power under the Act and the Representation of Peoples Act. According to him, a blanket stay of operation of the order cannot be granted by the Appellate Court, but however, contended that there is no embargo in staying the bye election. The Election Commission is bound to notify fresh bye election unless the same is stayed in which event appeal itself become infructuous.