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1998 Supreme(Ker) 324
Judges : OM PRAKASH,J.B.KOSHY
Sukumarakurup - Appellant
Versus
District Judge - Respondent
Case No : W.A. No. 511 of 1997
Decided On : 08/07/1998
Advocates Appeared :
T.R. Govinda Warriyar (Sr. Advocate) & R. Ramadas For Appellant M.R. Rajendran Nair & Government Pleader (P.K. Santhamma) For Respondents
The decision of the State Election Commission on the question of disqualification under S.34(1)(g) of the Kerala Panchayat Raj Act is final, and the designated court cannot relook into the matter.
Headnote:
Election Disqualification - Kerala Panchayat Raj Act - S.34(1), S.34(2), S.35, S.36 - The court discussed the finality of the decision of the State Election Commission on the question of disqualification under S.34(1)(g) of the Kerala Panchayat Raj Act. It held that the decision of the State Election Commission is final and the designated court cannot relook into the matter. The court emphasized that the right to challenge an election is a special right conferred under a self-contained special law and the powers of the court are circumscribed by its provisions. It also highlighted the scheme of the Act and the limitations imposed by it on the right to vote or stand as a candidate for election.
Fact of the Case:
The election for a member from Ward No. 5, Alanthara Constituency in Nellanad Grama Panchayat was contested by the appellant and respondent Nos. 3 to 6. The nomination filed by the appellant was opposed on the ground of disqualification as envisaged by S.34(1)(g) of the Kerala Panchayat Raj Act. The election was held, and the appellant was declared elected. Respondent No. 3 challenged the election, and the designated court declared the election of the appellant void. The appellant appealed, contending that the decision of the State Election Commission confirming the order of the Returning Officer was final and no election petition could be maintained by respondent No. 3 on the same ground of disqualification. The learned single judge dismissed the Original Petition, leading to the instant appeal.
Finding of the Court:
The court found that the decision of the State Election Commission on the question of disqualification is final, and the designated court cannot relook into the matter. The appellant's appeal was allowed, and the impugned judgment was set aside.
Issues: The issues revolved around the finality of the decision of the State Election Commission on the question of disqualification under S.34(1)(g) of the Kerala Panchayat Raj Act and the competence of the designated court to relook into the matter.
Ratio Decidendi: The court emphasized that the right to challenge an election is a special right conferred under a self-contained special law and the powers of the court are circumscribed by its provisions. It highlighted the scheme of the Act and the limitations imposed by it on the right to vote or stand as a candidate for election.
Final Decision: The appeal succeeded, and the impugned judgment was set aside. The appellant, who was declared elected, would continue to be a member of the Grama Panchayat till the expiry of his turn.
Om Prakash, CJ.
This appeal filed against the judgment dated 4.3.1997. raises a somewhat ticklish. but an important question of law.
2. The facts. in brief. are that to elect a member from Ward No. 5. Alanthara Constituency in Nellanad Grama Panchayat. an election was held on 23.9.1995. which was contested by the appellant/ petitioner and respondent Nos. 3 to 6. The nomination filed by the petitioner was opposed by respondent No. 3 before the Returning Officer as well as before the State Election Commission on the ground that he (petitioner) incurred disqualification. as envisaged by S.34(1 )(g) of the Kerala Panchayat Raj Act. 1994 (for short the Act'). in as much as he was interested in a subsisting contract made with the Kerala Government. It is averred that the said objection was overruled by the Returning Officer. Aggrieved. respondent No. 3 challenged the order of the Returning Officer before the State Election Commission. who affirmed the order of the Returning Officer on 29.8.1995. Thereafter. the election was held on 23.9.1995 and the result was declared on 28.9.1995. The appellant was declared elected and respondent No. 3 stood next to Mm.
3. Thereafter. respondent No. 3 called in question the election of the appellant by filing an election petition under S.89(1) of the Act before the Munsiff s Court. duly notified by Government in the Gazette under S.88 Clause (c) of the Act on the ground of improper acceptance of the nomination of the appellant. as envisaged by S.102 sub-s.(1) Clause (d) sub-clause (i) of the Act. reiterating thel ground raised before the Returning Officer that the appellant had interest in a subsisting contract made with the Kerala Government. The designated court accepted the contention of respondent No. 3 and declared the election of the appellant void. The appellant then appealed to the District Court under S.113 of the Act. but without success.
4. The appellant then filed the Original Petition giving rise to the instant appeal in this Court contending that the decision of the State Election Commission confirming the order of the Returning Officer was final under S.34(2) of the Act and no election petition could be maintained by respondent No. 3 on the purported ground of disqualification envisaged by S.34(1)(g) of the Act. The learned single judge held as follows:
"The Returning Officer has jurisdiction to decide the question of qualification or
disqualification of a candidate before accepting the nomination. Similarly. once a candidate is returned. the Court constituted under the Act has got the power to go into the question and decide whether the returned candidate' selection is void the jurisdiction of the election court to decide the election dispute would include the question of disqualification even if the same has been decided by the Returning Officer either way at the stage of scrutiny of the nomination. In other words. the decision of the Returning Officer would also be subject to the decision of the election Court". (emphasis supplied)
This is how the learned single judge dismissed the Original Petition.
5. Before us. learned counsel for the appellant submits that the decision of the State Election Commission under S.34(2) of the Act is final and that no election petition before the designated Court could lie on the same ground relating to a disqualification. already adjudicated upon by the State Election Commission.
6. No doubt. the State Election Commission. before whom the dispute relating to disqualification was taken by the third respondent. challenging the order of the Returning Officer. had held that no disqualification under S.34(1 )(g) was incurred by the appellant. The question for consideration. therefore. is whether the decision of the State Election Commission is final in this behalf.
7. By now. it is well settled that the right to challenge an election is a special right conferred under a self contained special law and the Court will have to seek answer to the questio
