Pulkuzhiyil Mohammadkutty vs Pookkottil Sadanandan on 26 November, 2009

Kerala High Court
Pulkuzhiyil Mohammadkutty vs Pookkottil Sadanandan on 26 November, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 11153 of 2008(C)


1. PULKUZHIYIL MOHAMMADKUTTY,
                      ...  Petitioner

                        Vs



1. POOKKOTTIL SADANANDAN, S/O. PERU,
                       ...       Respondent

2. THE KERALA STATE ELECTION COMMISSION,

                For Petitioner  :SRI.P.V.KUNHIKRISHNAN

                For Respondent  :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :26/11/2009

 O R D E R
         THOTTATHIL B. RADHAKRISHNAN, J.

  = = = = = = = = = = = = = = = = = = = = = = = =

            W.P.(C).No.11153 of 2008-C

  = = = = = = = = = = = = = = = = = = = = = = = =

     Dated this the 26th day of November, 2009.

                     JUDGMENT

“CR”

1.The petitioner lost to the first respondent in

the election to the Koduvally Grama Panchayat

from Ward No.2. He filed Ext.P1 petition before

the competent court challenging that election.

While so, at the instance of another person, the

Kerala State Election Commission declared that

the first respondent member is disqualified in

terms of the provisions of Section 35(1)(q) read

with Section 159 of the Kerala Panchayat Raj Act,

1994, for short, the “Act”. That decision has

been confirmed by this Court today.

2.In the wake of the disqualification incurred by

the first respondent and the declaration in that

regard by the Commission, the petitioner

apprehends that there will be a by-election. He

WPC11153/08 -: 2 :-

pleads is that the main ground in his election

petition Ext.P1 is allegation of double voting.

He accordingly, seeks an order directing the

Election Commission defer the by-election until

the disposal of Ext.P1 election petition filed by

the petitioner since he has sought for an order

therein that he be declared as elected.

3.Chapter X of the Act relates to disputes

regarding election. Section 87 therein provides

that no election shall be called in question

except by an election petition presented in

accordance with the provisions of that Chapter.

Section 102 provides the grounds for declaring

election to be void and Section 103 provides

grounds on which a candidate other than the

returned candidate may be declared to have been

elected. Sections 89 to 92 provide the

jurisdiction and requirements to be complied with

regarding joinder of parties, contents of

petition etc. Sections 93 to 99 regulate the

trial of election petitions and Sections 100 and

WPC11153/08 -: 3 :-

101 provide for the decision of the courts and

other orders to be made by the court. Ultimately,

Section 107(1) categorically states that an order

under Section 100 or Section 101 shall take

effect as soon as it is pronounced by the court.

Sub section 2 of Section 107 saves all

proceedings in which the member whose election is

declared as invalid had participated, from

invalidation on that ground. An order declaring

the election as void takes effect as soon as it

is pronounced. This is the effect of sub-section

1 of Section 107. The continued trial of the

election petition against a member who has since

become disqualified, cannot be insisted upon

since the elected member, even before the

election petition si decided, has ceased to be a

member by the operation of Section 35(1) of the

Act and the decision declaring the election of

the returned candidate to be void can take effect

only from the date on which the court orders so,

this being the effect of Sections 100 and 107(1).

WPC11153/08 -: 4 :-

For the aforesaid reasons, the petitioner is not

entitled to the relief sought for. The writ

petition fails and is accordingly dismissed.

THOTTATHIL B.RADHAKRISHNAN,
JUDGE.

Sha/2511

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *