M OMANAKUTTY AMMA Vs. K P MATHEW

JUDGEMENT

(1.) Petitioner was one of the candidates who submitted the nominations for the election of Constituency No. 13 of Thazhakkara Grama Panchayat. Her nomination paper was rejected at the time of scrutiny. The election was conducted on 24.9.05. Respondent is the elected candidate. Petitioner filed Ext. P5 petition under Section 87 of Kerala Panchayat Raj Act, hereinafter referred to as the Act, to declare the election of respondent as returned candidate is void on the ground that the nomination submitted by petitioner for the election was improperly rejected. Case of the petitioner was that she submitted her nomination paper to the Returning Officer on 5.9.05 and it was accompanied by a certificate issued by the Electoral Registration Officer authenticating that she is a voter whose name is included in the electoral roll of the said Constituency. She also submitted a detailed information in Form 2 A as contemplated under Section 52(1A) of the Act and every entry therein had been filled up and the information disclosed but her nomination paper was illegally rejected on the ground that the detailed information was submitted without her signature. It is contended that the Returning Officer had permitted two other candidates to sign the detailed information contained in Form 2A at the time of receiving nomination paper and because of the personal bias of the Returning Officer against whom petitioner had earlier filed complaints, the Returning Officer did not require petitioner to affix her signature in Form 2A and therefore the rejection of her nomination paper is illegal and there is violation of proviso to Section 52(4) of the Act as well as the instructions in the handbook and therefore the election of the respondent is liable to be set aside under Section 102(1)(c) of the Act. Respondent filed Ext.P6 objection disputing the allegations in the petition. Under Ext.P7 order, the Election Tribunal (Munsiff Court Mavelikkara) dismissed the election petition holding that the rejection of the nomination paper which was submitted along with a detailed information statement in Form 2A which did not contain the signature of the petitioner is not improper or illegal and therefore the election cannot be set aside. This petition is filed under Article 227 of the Constitution of India to quash Ext.P7 and for a direction the Munsiff to dispose of Ext.P5 election petition afresh as provided under Section 94 of the Act. The case of the petitioner is that Ext.P7 order cannot be considered an order as provided under Section 100(a) of the Act and it cannot also be deemed to be an order passed under Section 100 of the Act and therefore petitioner is not required to file an appeal as provided under Section 113 of the Act and a petition under Article 227 of the Constitution of India is maintainable. The case of the petitioner is that Ext.P7 order can be construed an order passed under Section 100 of the Act, only if it was passed after recording of the evidence as in a suit and as no evidence was permitted to be adduced, it is not a decision on merit as provided under Section 100 of the Act. It is also contended that Election Tribunal is competent to dismiss the petition before trial only under the limited grounds provided under Sub-section (1) of Section 93 and that could only be for the non-compliance of Section 89 or 90 or 115 of the Act and as the dismissal was not for non-compliance of any of those provisions. Ext. P7 order cannot be deemed to be an order made under Section 100(a) and therefore it is not an appealable order and the remedy of the petitioner is only to approach this Court under Article 227 of the Constitution of India.

(2.) Learned Counsel appearing for petitioner and respondent were heard.

(3.) The argument of learned Counsel appearing for petitioner is that as Ext.P7 is not an order as contemplated under Section 93(1) or a final order after trial as provided under Section 100, petitioner is not required to file an appeal against Ext.P7 and she is entitled to challenge the order under Article 227 of the Constitution. Learned Counsel relying on the various provisions of the Act argued that a final order could only be passed after recording evidence and at the conclusion of trial as provided under Section 93 and after complying with the procedure provided under Section 94 and as the Election Tribunal did not follow the procedures, Ext.P7 order is to be quashed and the Tribunal has to be directed to try the election petition and dispose the same on merit. The argument is that as the Election Tribunal has not exercised the powers and did not follow the procedure provided under the Act, and so Ext.P7 order is vitiated.