SWAYAMPRABHA Vs. CHANDRAMATHY

JUDGEMENT

(1.) The returned candidate in the election to ward No. 15 of Cherplacherry Grama Panchayat who was the respondent in Election OP No. 20/05 on the files of the Munsiff's Court, Ottappalam is aggrieved by Ext. P3 order of the learned Munsiff (Election Tribunal). Under Ext. P3, the learned Munsiff has overruled the petitioner's contention that the Election Petition is not maintainable. The question of maintainability was raised by the petitioner on the basis of the proviso to S.91(1)(c) of the Kerala Panchayat Raj Act. It was contended by the petitioner that all Election Petitions containing allegations of corrupt practice shall be accompanied by an affidavit in the prescribed form in respect of the allegations. The prescribed form, according to the petitioner, is form No. 28 and the affidavit is to be sworn before a Magistrate of the First Class or a Notary as per R.62 of the Kerala Panchayat Raj (Conduct of Election) Rules, 1995. It is ignoring the above provisions which are mandatory that the learned Munsiff passed Ext. P3 order. In the Writ Petition Ext. P3 is assailed on various grounds and it is prayed that Ext. P3 order be quashed and it be held that the Election Petition is not maintainable.

(2.) Though the respondent who is the petitioner in the election OP was served with notice, she has not chosen to enter appearance before this Court. Mr. V. Chitambaresh, learned counsel for the petitioner addressed me on the various grounds raised In the Writ Petition. According to him, there was a clear allegation in the election petition that the Returning Officer for the furtherance of the prospect of the respondent has assisted or connived with the respondent. Lots between the candidates when equal votes were polled was taken unilaterally without notice to the petitioner and without affording an opportunity to verify the lots. Such an allegation came within the definition of corrupt practices enumerated under S.120(8) of the Kerala Panchayat Raj Act and was clearly outside the proviso therein. The acts of corrupt practice alleged against the Returning Officer is not a mere act in discharging his official capacity so as to fall within the proviso to S.120(8) of the Kerala Panchayat Raj Act. Mr. Chitambaresh submitted that having found that the Election Petition is not accompanied by an affidavit in the required form, the Court below must have held that the election petition is not maintainable on account of the absence of an affidavit. Counsel referred to the judgment of this Court in A. Mohammed v. Nalakath Soopy, 1997 KHC 131 : 1997 (1) KLJ 618 : ILR 1997 (3) Ker. 282 : 1997 (1) KLT 697.

(3.) I have considered the submissions addressed at the Bar. I have carefully gone through the full text of Ext. P1. As rightly noticed by the learned Tribunal, the respondent in Ext. P1 does not allege any corrupt practice against the petitioner herein who is the returned candidate. The allegation in Ext. P1 is that the Returning Officer committed Illegalities and irregularities in the matter of drawing lots resulting in the petitioner being declared elected. The illegalities and irregularities in the matter of counting of votes and lots are levelled not against the petitioner, the returned candidate but against the Returning Officer. Mr. Chitambaresh would highlight the allegation in paragraph 3 of Ext. P1 that with the intention of ensuring the success of the respondent in the election only, the Returning Officer has deliberately violated the mandatory provisions of the Acts and the Rules.