Dismissed

M.M.Abdul Kareem v. Pareed Muhammed @ K.M.Pareed

Kerala HC28 Nov 2016OP(C)/2717/2016

Case brief

AI extract

What is this about?

This petition challenged an order declaring the petitioner's election void, filed in the nature of a writ under Article 227. The High Court held that since complete remedies under the Kerala Panchayat Raj Act exist and the petitioner sought to set aside an order for which an appeal was pending, the writ petition lacked merit and was dismissed.

What did the court decide?

The petition was dismissed, and the interim stay order was vacated.

M.M.Abdul Kareem Vs Pareed Muhammed @ K.M.Pareed — Election Law | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938

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OP(C).No. 2717 of 2016 (O)

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--------------------------(IA.NO.7191/2016 IN OP(ELECTION) NO.1416/2015 OF II ADDITIONAL DISTRICT COURT, ERNAKULAM)

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PETITIONER :

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M.M.ABDUL KAREEM, AGED ABOUT 61 YEARS, S/O. MOIDU, MANIYATTUKUDY HOUSE, NELLIKUZHY P.O., ERMALLOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN-686 691.

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BY ADVS.SRI.BABU JOSEPH KURUVATHAZHA

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SRI.P.T.ABHILASH

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RESPONDENT(S):

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1. PAREED MUHAMMED @ K.M.PAREED, AGED 64 YEARS, S/O. MOHAMMED, KAVATTU HOUSE, CHERUVALLOOR KARA, ERAMALLOOR P.O., ERNAKULAM DISTRICT, PIN-686 691.

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2. ANIL NJALUMADAM,

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AGED ABOUT 45 YEARS, S/O. N.K.KARUNAKARAN PILLAI, NJALUMADAM HOUSE, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, THRIKKARIYOOR P.O., ERNAKULAM DISTRICT, PIN-686 691.

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3. M.A.ABDUL KAREEM, AGED ABOUT 45, S/O. ALI, MANGANATTU HOUSE, ERAMALLOOR VILLAGE, KOTHAMANGALAM TALUK, CHERUVALLOOR P.O., ERNAKULAM DISTRICT, PIN-686 691.

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4. HASSAN BADRI AYIROOPADA, AGED ABOUT 45, S/O. MYTHEEN, KARAKKUZHY HOUSE, AYIROOPADAM P.O., TRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT, PIN-685 691.

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2/-

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-2-

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OP(C).NO.2717/2016

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5. M.G.RAJAMANIKYAM, DISTRICT COLLECTOR, ERNAKULAM, KOCHI-682 030, RETURNING OFFICER OF THE ELECTION IN RESPECT OF THE 08 BHOOTHATHANKETTU CONSTITUENCY TO THE 07 ERNAKULAM DISTRICT PANCHAYAT.

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R1 BY SRI.K.RAMAKUMAR,SENIOR ADVOCATE ADVS. SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.ASHA BABU SMT.R.S.ASWINI SANKAR SRI.SABIN BABU R5 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP(C).No. 2717 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE O.P.(ELECTION)NO.1416/2015 ON THE FILE OF THE LEARNED COURT OF THE II ADDITIONAL DISTRICT JUDGE, ERNAKULAM, EXCEPT THE DOCUMENTS.

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EXHIBIT P1(A) TRUE COPY OF THE ORDER DATED 17-10-2016 OF THE LEARNED COURT OF THE II ADDITIONAL DISTRICT JUDGE, ERNAKULAM.

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EXHIBIT P2 TRUE COPY OF I.A.NO.7191/2016 IN O.P.(ELECTION) NO.1416/2015 ON THE FILE OF THE LEARNED COURT OF THE II ADDITIONAL DISTRICT JUDGE, ERNAKULAM.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.S.TO JUDGE

sts

K. RAMAKRISHNAN, J.

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....................................... O.P.(C).No.2717 of 2016

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Dated this the 28^th day of November, 2016.

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JUDGMENT

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This is a petition filed by the petitioner challenging Ext.P1(a) order passed by the below under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner is the first respondent in OP(Ele)No.1416/2016 on the file of the IInd Additional District Court, Ernakulam evidenced by Ext.P1 petition. That petition was filed by the first respondent herein challenging the election of the petitioner from Bhuthathankettu constituency for Ernakulam district panchayat. The petitioner was declared elected from the constituency and that was challenged by the first respondent by filing Ext.P1 application on the ground that the nomination filed by him is not in tune with the provisions of the Panchayat Raj Act and it is in violation of section 52(I)(A) of the Act. Though notice was served on him, he did not appear and the court below passed Ext.P1(a) order declaring election of the petitioner void and set aside the same and declared the first respondent as declared from the constituency. It is also seen from the petition that the petitioner also filed Ext.P2 petition as IA.No.7191/2016 before the IInd Additional District Court, Ernakulam to set aside and recall Ext.P1 order. The petitioner filed this petition seeking the following relief:

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O.P.(C).No.2717 of 2016

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“i. Issue any appropriate order or direction setting aside Ext.P1(a) order of the learned Court of the II Additional District Judge, Ernakulam in OP(Election) No.1416/2015 dated 17.10.2016.

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ii. Issue any appropriate order or direction commanding the learned Court of the II Additional District Judge, Ernakulam to consider and dispose of Ext.P2 IA.No.7191/2016 in OP(Election).No.1416/2015.”

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Heard Sri. Sreekumar Chelur, learned counsel appearing for the petitioner and Sri. K. Ramakumar, learned senior counsel appearing for the first respondent. Others remained absent.

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Learned counsel for the petitioner submitted that by virtue of section 94 of the Kerala Panchayat Raj Act, the court has got power to set aside the ex parte order by filing an application under Order 9 Rule 13 and till that petition is disposed of by the court below, the proceedings will have to be stayed. Further there are procedural irregularities. The formalities have not been properly complied with. So this court has power under Article 227 of the Constitution of India to entertain an application to quash the order and direct fresh enquiry.

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Learned senior counsel appearing for the first respondent submitted that the order was passed under section 100 of the Panchayat Raj Act which is appelable under section 113 of Act.

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O.P.(C).No.2717 of 2016

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There is no provision for setting aside the ex parte decree provided.

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It is an admitted fact that the first respondent herein is a contested candidate in the election impugned from Bhuthathankettu constituency for Ernakulam District Panchayat. The first petitioner is the elected candidate from that constituency. That election was challenged by the first respondent by filing Ext.P1 application. It is not in dispute that the petitioner did not appear and the court below had passed Ext.P1(a) order declaring the election of the petitioner void and set aside the same and declared the first respondent as elected candidate from that constituency. A reading of the order will go to show that since the petitioner did not appear, a publication was effected as required under section 112 of the Kerala Panchayat Raj Act and none got impleaded. The other respondents who are made parties did not contest the case as well. The name of the 5^th respondent, the returning officer, was deleted from the party array as per the order in IA.No.1000/2015 as he is only a formal party and he was impleaded as the returning officer (election). There is no provision in the Kerala Panchayat Raj Act to declare a person ex parte and then decide the case ex parte. Further none of the provisions of the Kerala Panchayat Raj Act dealing with election in Chapter 10 deals with an application to set aside the ex parte order passed in

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O.P.(C).No.2717 of 2016

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the absence of any one of the parties. Once an order has been passed by the court below, then that can be an order under section 100 or 101 of the Kerala Panchayat Raj Act which reads as follows:

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“100. Decision of the Court :- At the conclusion

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of the trial of an election petition the Court shall make an order-

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(a) dismissing the election petition; or

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(b) declaring the election of the returned

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candidate to be void; or

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(c ) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected.

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101. Other orders to be made by the Court :-

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At the time of making an order under section 100, the Court shall also make an order-

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(a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording-

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(i) a finding whether any corrupt practice has or has not been proved to have committed at the election, and the nature of that corrupt practice; and

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(ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and

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(b) fixing the total amount of costs payable and specifying the persons by and to whom costs shall be

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O.P.(C).No.2717 of 2016 5

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paid:

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Provided that a person who is not a party to the petition shall not be named in the order under subclause (ii) of clause (a) unless-

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(i) he has been given notice to appear before the Court and to show cause why he should not be so named; and

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(ii) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the Court and has given evidence against him, of calling evidence in his defence and of being heard.”

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Further section 113 of the Kerala Panchayat Raj Act provides an appeal against an order passed by the Election Tribunal if the decision is by a district court to the High Court. So under such circumstances, if the petitioner is aggrieved by Ext.P1(a) order, then the remedy of the petitioner is to file an appeal under section 113 of the Kerala Panchayat Raj Act and this court cannot, under Article 227 of the Constitution of India under the supervisory jurisdiction, interfere with the order passed by the court below under the provisions of the Kerala Panchayat Raj Act, when a statutory remedy of appeal has been provided against that order. So this court cannot grant the first relief claimed in the petition to quash Ext.P1(a) order passed by the court below. The question as to whether there is any power to set aside the ex

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O.P.(C).No.2717 of 2016

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parte decree or not, is a matter to be considered by that court since an application has been already filed before that court. So this court is not passing any opinion on that matter. Under such circumstances, there is no merit in the petition and the same is liable to be dismissed.

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In the result, the petition is dismissed. Interim order of stay granted by this court is hereby vacated. Registry is directed to communicate a copy of this judgment to the court below and also to the election authority as provided under the Act immediately.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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M.M.Abdul Kareem v. Pareed Muhammed @ K.M.Pareed

Case brief

What is this about?

What did the court decide?

M.M.Abdul Kareem v. Pareed Muhammed @ K.M.Pareed

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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