SANTHOSH GEORGE Vs. P S MATHAI

JUDGEMENT

(1.) The first respondent in Election O.P. 12/2005 on the file of the Munsiff Court, Muvattupuzha, which is the designated court for conducting court for conducting trial of Election Petitions arising from the election to the local bodies, is the petitioner in this Writ Petition. The petitioner and the respondents were candidates for the election to Ward No. VI of Paingottur Grama Panchayat in Ernakulam District for which polling was held on 24.9.2005. The petitioner was declared elected. The petitioner secured 358 votes and the first respondent secured 327 votes. The second respondent got only five votes. 11 votes were declared invalid.

(2.) The first respondent filed O.P. No. 12/2005 to declare the election of the petitioner void on the ground that the petitioner is an employee working in Model Engineering College, Thrikkakara, run by the Institute of Human Resources Development for Electronics ('IHRDE' for short) which is a corporation fully controlled by the Government of Kerala and hence disqualified to contest the election for Grama Panchayat in view of the provisions contained in Section 30 of the Kerala Panchayat Raj Act. It was alleged that in spite of the objection raised by the first respondent the Returning Officer accepted the nomination of the petitioner. It is averred that the petitioner was a permanent employee of the Model Engineering College, Thrikkakara from 1.9.1998 and on the date of nomination as well as on the date of election he was working as such and he was not served with any relieving orders and hence his nomination was improperly accepted by the Returning Officer. It was further alleged that if the nomination of the petitioner was rejected the first respondent who secured the highest votes is eligible to be declared as elected. It was contended that even before the election the first respondent informed the voters of Ward No. VI about the disqualification of the petitioner and they casted their votes fully knowing that the petitioner was not qualified to contest the election. It was further contended that if the petitioner's nomination was rejected the majority of the votes would have been polled in favour of the first respondent/election petitioner.

(3.) The petitioner in this Writ Petition who is the first respondent in Election Petition filed a preliminary objection contending that the Election Petition filed preliminary objection contending that the Election Petition is not maintainable in law and it is not filed in conformity with the provisions of the Kerala Panchayat Raj Act in relation to the presentation of the Election Petitions and pleadings mandatorily required to be made in such petitions. It is contended that the vague contention raised in the Election Petition is that the nomination of the first respondent has been improperly accepted under Section 102 of the Kerala Panchayat Raj Act. It is contended that to attract Section 102 the mere improper acceptance of the nomination is not sufficient. It is contended that there is no specific pleadings to the effect that the result of the election has been materially affected due to the improper acceptance of the nomination of the first respondent and hence the Election Petition ought to have been dismissed at the threshold. It is contended that the Apex Court has held that the preliminary issue of maintainability of the Election Petition is to be decided as a preliminary objection in the Election Petition. It is contended that the allegation that the petitioner is an employee of a corporation fully controlled by the State Government and hence he is not qualified to contest the election is a vague allegation. It is contended that it was held by the Apex Court that the vague pleadings entail dismissal of an Election Petition at the threshold. It is also contended that in C.R.P. No. 1326/2002 this Court held in favour of the petitioner which is suppressed in the Election Petition. It is averred that on remand by this Court the District Court in C.M.A. No. 372/2002 held that the employees of the I.H.R.D.E. are not employees in the service of the State Government and there is no disqualification under the provisions of the Kerala Panchayat Raj Act. It is contended that the contention of the respondent that the petitioner is not qualified to contest the election is not a statutory requirement and hence no triable case has been made out in the Election Petition and the same is to be dismissed. The petitioner prayed for a decision on the question of maintainability as preliminary issue.