IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 16556 of 2006(U)
1. SWAYAMPRABHA, W/O.GANESAN,
... Petitioner
Vs
1. CHANDRAMATHY, W/O.UNNIKRISHNAN,
... Respondent
For Petitioner :SRI.V.CHITAMBARESH
For Respondent :SRI.SANTHEEP ANKARATH
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :21/08/2007
O R D E R
PIUS C. KURIAKOSE,J.
- - - - - - - - - - - - - - - - - - - - - - - - -
W.P.(C) No.16556 of 2006
- - - - - - - - - - - - - - - - - - - - - - - - -
Dated: 21st August, 2007
JUDGMENT
The returned candidate in the election to ward No.15 of
Cherplacherry Grama Panchayat who was the respondent in Election
O.P.No.20/05 on the files of the Munsiff’s Court, Ottapalaml 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 Section 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
Rule 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.
W.P.C.No.16556/06 – 2 –
2. Though the respondent who is the petitioner in the election
O.P. 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 Section 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 Section 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(1) KLT 697).
W.P.C.No.16556/06 – 3 –
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.
4. It is Section 120 (8) of the Kerala Panchayat Raj Act which
deals with corrupt practices. Section 120 (8) says that the following
shall be deemed to be corrupt practices for the purpose of the Act.
Section 120(8) is quoted below:
“The obtaining or procuring or abetting or attempting to
obtain or procure by a candidate or his agent or, by any other
person with the consent of a candidate or his election agent, any
W.P.C.No.16556/06 – 4 –
assistance (other than the giving of vote) for the furtherance of
the prospects of that candidate’s election, from any person in
the service of a Panchayat or of ;Government and belonging to
any of the following classes, namely:-
(a) gazetted officers;
(b) members of the police forces;
(c) excise officers;
(d) revenue officers; and
(e) such other class of persons in the service of the Government
as may be prescribed:
provided that where any person, in the service of the
Government and belonging to any of the classes aforesaid, in
the discharge or purported discharge of his official duty, makes
any arrangements or provides any facilities or does any other
act or thing, for, to, or in relation to, any candidate or his
election agent or any other person acting with the consent of the
candidate or his election agent, (whether by reason of the office
held by the candidate or for any other reason), such
arrangements, facilities or act or thing shall not be deemed to
be assistance for the furtherance of the prospects of that
candidate’s election.”
W.P.C.No.16556/06 – 5 –
I do not find any allegations or corrupt practices against the
petitioner, the returned candidate. The allegations levelled against
the officer in Ext.P1 do not amount to allegation of corrupt practices
coming within the meaning of Section 120(8) of the Kerala Panchayat
Raj Act.
5. Section 91(1)(c) of the Kerala Panchayat Raj Act reads as
follows:
“91. Contents of petition- An election petition-
(a) ……….
(b) ……….
(c) shall be signed by the petitioner and verified in the manner
laid down in the Code of Civil Procedure, 1908 (Central Act 5 of
1908) for the verification of pleadings:
Provided that where the petitioner alleges any corrupt
practice, the petition shall also be accompanied by an affidavit in
the prescribed form in support of the allegation of such corrupt
practice and the particulars thereof.”
Rule 62 of the Kerala Panchayat Raj (Conduct of Election) Rules,
1995 provides that the affidavit referred to under the proviso to Sub-
section (1) of Section 91 shall be in form No.28 and the same shall
be sworn before a Magistrate of the First Class or a Notary. The
W.P.C.No.16556/06 – 6 –
learned Munsiff did find that the affidavit which was filed by the
respondent was not in form No.28. Nevertheless the contention
regarding the maintainability was overruled on the view that filing of
an affidavit was not necessary since no corrupt practices had been
alleged. I do not find any infirmity about the learned Munsiff’s view
which is seen supported by the by the judgment of this court in
Geetha Shetty v. Premalatha (I.L.R. 2006(2) Kerala 79). The
challenge against Ext.P3 fails and the Writ Petition will stand
dismissed.
srd PIUS C.KURIAKOSE, JUDGE