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
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.