KOLLETH MOHAMMED MASTER Vs. MUNSIFFTIRUR

JUDGEMENT

(1.) This writ petition, referred to the Division Bench, raises an important question of law touching the maintainability of an election petition filed under S.22 of the Kerala Panchayats Act (the Act) and R.5 of the Kerala Panchayats (Decision of Election Disputes) Rules, 1963 (the Rules) when that petition in which the petitioner alleges corrupt or illegal practices is not accompanied by a list signed and verified in accordance with the provisions contained in sub-r.(5) of R.5 of the Rules. A further question whether the petitioner could seek to sustain the election petition by moving the Court to delete the ground based on corrupt or illegal practice also arises in this writ petition.

(2.) The writ petitioner was declared elected to Athawanad Panchayat in the election held on 18-9-1979, having obtained 427 votes as against 419 votes obtained by his rival, the second respondent herein, hereinafter referred to as the election petitioner. The election petitioner filed Election Petition No. 2 of 1979 on the file of the Munsiff of Tirur under S.22 of the Act and R.5 of the Rules for setting aside the election and for declaring that he was duly elected, on the allegation that the writ petitioner had indulged in corrupt practices. It would appear that the writ petitioner contended that, the election petition was bound to be dismissed for non compliance with the mandatory requirement of sub-r.(5) of R.5 of the Rules in as much as it was not accompanied by a list of corrupt practices signed and verified in accordance with the provisions of that sub-rule. Thereafter the election petitioner filed IA. No. 2017 of 1979 for permission to file a list of corrupt practices, and also to amend the election petition. The court below on 11-12-1979 dismissed this interlocutory application accepting the contentions of the writ petitioner that such an application was not maintainable in law.

(3.) When the election petition was taken up for hearing the writ petitioner reiterated the stand that the election petition was not maintainable for the reason that the provisions of R.5(5) of the Rules had not been complied with; and, therefore, the election petition was liable to be dismissed in limine in accordance with the provisions contained in R.5(8) of the Rules. Faced with this situation, the counsel for the election petitioner chose to press only one point, namely, that which related to the recounting. Rejecting the contentions, based on the non maintainability of the election petition on the ground that the provisions of R.5(5) of the Rules had not been complied with, raised by the writ petitioner, the learned Munsiff on 7-4-1980 ordered the recounting of the votes. This decision was challenged by the returned candidate, the writ petitioner, in the writ petition, OP. 1658 of 1980L. This Court by the judgment dated 1-7-1980 disposed of that writ petition directing the learned Munsiff to raise an additional issue, whether the election petition filed before him was maintainable in the light of the contention raised by the writ petitioner that the Election Petitioner did not comply with the requirements of sub-r.(5) of R.5 of the Rules, and, therefore, the election petition was liable to be dismissed under sub-r.(8) of that Rule. It was also therein stated that if the decision on the preliminary point went in favour of the election petitioner, the order for recounting would stand subject to certain clarifications in regard to the manner in which the recounting was to be done.