P A NIAMATHULLA V Vs. A SHABEER

JUDGEMENT

(1.) An unsuccessful candidate, whose petition for declaring the election of the respondents as void, has filed this appeal. The court below had dismissed his Election Petition. The appellant and respondent were candidates who contested from Ward No. 2 of Alangad Block Panchayat for the election to Panchayat held in September, 2005. He is a voter of Kadoopadam Constituency of Karumalloor Village Panchayat, which is a component of No. 2 Veliyathunadu Constituency of Alangad Block Panchayat. Election was held on 24-9-2005, and respondent was declared elected. Petitioner filed Election Petition before the designated Court at Ernakulam, to declare the election of respondent as void mainly on two grounds. Firstly, respondent filed the nomination paper before a person who had no authority to receive the same. Secondly, the respondent did not make or subscribe the oath or affirmation before the Returning Officer or any other person authorised by the State Election Commission and hence not qualified for chosen to fill a seat in Panchayat, under Section 29(e) of the Kerala Panchayat Raj Act, 1994, (for short 'the Act').

(2.) Respondent filed a counter contending that the Election Petition was not maintainable. It was contended that the Election Petition was defective and it was filed after the expiry of the period of limitation. It was contended that the respondent signed the oath or affirmation according to the form set out for the purpose in the first schedule before the Returning Officer, and as such, he was fully qualified to contest for the election. It was also contended that he filed the nomination before the Assistant Returning Officer, who was fully competent to verify the nomination papers, and receive the same. Hence, there was absolutely no ground to declare the election as void.

(3.) Appellants examined PW.1 to 5, and marked 11 documents, Ext. X1 to X11. Respondent did to adduce any evidence. The learned Second Additional District Judge, Ernakulam, after trial, found that the oath or affirmation of the respondent was made before the Assistant Returning Officer, and even if the Assistant Returning Officer has no authority, it is a fit case in which the Principle of De facto doctrine is to be applied. It was also held that PW.5, who received the nomination paper, was holding the charge of Block Development Officer and Assistant Returning Officer, and as such, was competent to receive the same. The Election Petition was dismissed. Challenging that Order, this appeal is filed.