Kerala High Court
Maggi Johnson vs Shamila Azeez on 20 July, 2011
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
TUESDAY,THE 8TH DAY OF OCTOBER 2013/16TH ASWINA, 1935
OP(C).No. 2670 of 2013 (O)
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AGAINST THE ORDER/JUDGMENT IN OPELC 27/2010 of M.C., WADAKKANCHERY
DATED 20-07-2011
PETITIONER(S)/IST RESPONDENT:
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MAGGI JOHNSON,
W/O JOHNSON, THARAKAN HOUSE, KOONAMOOCHI P.O
THRISSUR
BY ADV. SMT.SMITHA CHATHANARAMBATH
RESPONDENT(S)/PETITIONER & 2ND RESPONDENT :
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1. SHAMILA AZEEZ,
W/O AZEEZ, AANDIYATH HOUSE, KOONAMOOCHI P.O,
THRISSUR 680 504
2. THE RETURNING OFFICER,
G- 08006, CHOONDAL GRAMA PANCHAYATH,
ASSISTANT CONSERVATOR OF FOREST,
SOCIAL FORESTRY DIVISION, THRISSUR 680 502
R1 BY ADV. SRI.B.V.JOY SANKER
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 08-10-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 2670 of 2013 (O)
APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE ELECTION PETIION DATED 26-11-2010 FILED BY
THE IST RESPONDENT AS ELECTION OP NO 27/2010.
EXHIBIT P2: TRUE COPY OF THE OBJECTION DATED 11-03-2011 FILED BY THE
PETITIONER IN ELECTION OP O 27/2010.
EXHIBIT P3: TRUE COPY OF THE ISSUES FRAMED BY THE COURT BELOW IN
ELECTION OP NO 27/2010.
RESPONDENT(S)' EXHIBITS NIL
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/TRUE COPY/
P.A. TO JUDGE
VPV
P.N.RAVINDRAN, J.
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O.P.(C).No.2670 of 2013
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Dated this the 8th day of October, 2013
JUDGMENT
Elections to ward No.18 of Choondal Grama Panchayat in Thrissur District was held on 25.10.2010. The petitioner and the first respondent herein were the only two candidates who contested the elections. The results were declared on 27.10.2010. The petitioner who secured 431 votes as against 422 votes secured by the first respondent was declared elected by a margin of 9 votes on 27.10.2010. The first respondent thereupon filed Election O.P.No.27 of 2010 on 26.11.2010 in the Court of the Munsiff of Vadakkanchery wherein she prayed for setting aside the election of the petitioner and to declare her elected. Later the petition was amended. Though initially the Returning Officer (the second respondent herein) was also joined as the second respondent in the election petition, his name was struck of from the array of parties as per order passed on 25.5.2011 on I.A.No.503 of 2011. Still later by order passed on 4.6.2011 on I.A.No.2067 of 2011, the election petition was amended incorporating a prayer to recount the votes polled on 27.10.2010. A copy of the election petition is produced as Ext.P1. Shorn of details, the main ground raised in the election petition is O.P.(C)No.2670 of 2013 2 that when a recount was asked for, it was declined initially and later in the absence of the first respondent and her agent recounting was conducted and the petitioner herein was declared elected by a margin of 9 votes. It is alleged that many among the invalid votes were counted as votes cast in favour of the petitioner herein and that the Returning Officer and other officers who were involved in the counting of votes had deliberately done so with a view to ensure that the petitioner is returned elected.
2. Upon receipt of summons, the petitioner entered appearance and filed Ext.P2 objections. In paragraph 8 thereof, she contended that the election petition is not one filed in accordance with section 89(2) and section 90 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as "the Act" for short) and therefore it is liable to be dismissed on that short ground. In paragraph 9 thereof she contended that along with the election petition attested copies of the documents have not been produced and attested copies of documents have not been served on her. She contended that on the terms of section 89 (2) of the Act she is entitled to receive attested copies of documents produced along with the election petition. In paragraph 10, she contended that failure to produce duplicate documents or the documents produced along with the list of documents amounts to violation of rules. In paragraph 11, she O.P.(C)No.2670 of 2013 3 contended that the election petition was not accompanied by an affidavit in the prescribed form, attested by a Notary Public and an attested copy thereof has not been served on her. The main relief sought in this original petition filed under Article 227 of the Constitution of India is for an order directing the trial court where Election O.P.No.27 of 2010 is pending to pass orders on the issue regarding maintainability of the election petition before proceeding with the trial of the case.
3. It is contended that though the election petition stood posted on various dates to consider the issue regarding maintainability and the parties were heard on more than one occasion, orders have not been passed on the issue regarding maintainability and that without passing orders on the issue regarding maintainability of the election petition, the election petition was listed for trial on 2.8.2013.
4. I heard Smt.Smitha Chathanarambath, learned counsel for the petitioner and Sri.B.V.Joy Sankar, learned counsel appearing for the first respondent. I have also gone through the lower court records which were called for pursuant to the order passed by this Court on 26.8.2013. The records disclose that the petitioner is right in his submission that though the issue regarding maintainability was heard on more than one occasion, the trial court did not decide O.P.(C)No.2670 of 2013 4 the issue, but instead directed the election petition to be listed for trial on 3.9.2013. The records disclose that the trial court had on 1.10.2011 directed the election petition to be posted to 4.10.2011 for hearing on the question of maintainability. On that day it was adjourned to 12.10.2011 and thereafter to 1.11.2011. On 1.11.2011 there was no sitting and the petition was posted to 8.11.2011. On 8.11.2011 it was adjourned to 15.11.2011 for hearing on the issue regarding maintainability and on that day it was adjourned to 1.12.2011. On 1.12.2011 it was adjourned to 3.12.2011. On that day the issue regarding maintainability was heard in part and the case was adjourned to 13.12.2011 for further hearing. On that day both sides were not ready and therefore, the election petition was adjourned to 23.12.2011. On 23.12.2011 also both sides were not ready and the election petition was adjourned to 2.1.2012. On 2.1.2012 both sides were heard on the issue regarding maintainability and orders reserved. The election petition was also posted for orders to 10.1.2012. On 10.1.2012 it was posted to 18.1.2012 for orders. On 18.1.2012 the learned judge reopened the case for further hearing on the issue regarding maintainability and the election petition was adjourned to 25.1.2012. On 25.1.2012 it was adjourned for further hearing to 6.2.2012. On 6.2.2012 on the ground that both sides were not ready it was adjourned to O.P.(C)No.2670 of 2013 5 14.2.2012. On 14.2.2012 it was adjourned to 17.2.2012 and on 17.2.2012 to 27.2.2012. On 27.2.2012 as both sides were not ready, the hearing was adjourned to 2.3.2012 and on 2.3.2012 it was adjourned to 6.3.2012 and on 6.3.2012 it was adjourned to 12.3.2012. The issue regarding maintainability was again heard on 12.3.2012 and the case was posted for orders to 17.3.2012. On 17.3.2012 it was adjourned to 24.3.2012 for orders. On 24.3.2012 the case was again reopened for further hearing on the issue regarding maintainability and posted to 30.3.2012. On 30.3.2012 it was adjourned to 4.4.2012 for further hearing. On 4.4.2012 it was adjourned to 21.5.2012 and on 21.5.2012 to 24.5.2012. On 24.5.2012 it was adjourned to 30.5.2012 for the reason that both sides were not ready and on 30.5.2012 it was adjourned to 1.6.2012 and on 1.6.2012 the issue regarding maintainability was again heard and the case was posted for orders to 8.6.2012. On 8.6.2012 it was adjourned to 12.6.2012. Orders were not however passed on 12.6.2012, but the election petition was posted to 5.1.2013. On that day it was reopened for further hearing and posted to 14.1.2013. On 14.1.2013 there was no sitting and the case was reposted to 15.1.2013. On 15.1.2013 both sides were heard and the case was posted for orders to 24.1.2013. On 24.1.2013 there was no sitting and the case was reposted to O.P.(C)No.2670 of 2013 6 28.1.2013. On 28.1.2013 the case was again reopened for further hearing and directed to be called on 7.2.2013. On 7.2.2013 both sides were absent and it was adjourned to 12.2.2013 and on 12.2.2013 it was adjourned to 21.2.2013 and on 21.2.2013 to 1.3.2013. Further endorsements are not seen on the original of the election petition. Though the records were called for, the proceedings paper and the B diary have not been forwarded to this Court. This Court is therefore not in a position to verify the dates on which the case stood posted thereafter. It is however evident from the documents presently available that though the issue regarding maintainability was heard on at least four occasions and orders reserved, the court below has not passed orders on the issue regarding maintainability of the election petition.
5. The election petition now stands posted to 18.11.2013 for trial. Since the issue regarding maintainability of the election petition was heard on more than three occasions, I am of the considered opinion that the court below should pass orders on the issue regarding maintainability. For that purpose I advance the hearing of the election petition from 18.11.2013 to which date it stands posted for trial to 21.10.2013. The petitioner as well as the first respondent shall appear through counsel in the court below on that day without fail. The court below shall on that day itself hear O.P.(C)No.2670 of 2013 7 the issue regarding maintainability of the election petition and pass orders thereon before 31.10.2013. In the event of the election petition being held to be maintainable, the trial shall proceed as scheduled now on 18.11.2013. In that event, the trial court shall be concluded and the election petition disposed of before 31.12.2013. I also notice the fact that though the learned counsel appearing for the petitioner has raised a contention that no affidavit as required to be filed in terms of the proviso to sub-section (i) of section 90 of the Act has filed, an affidavit dated 26.10.2013 sworn to by the petitioner in the election petition and attested by Sri.Nandanan N. Warrier, Notary Public, Thrissur Revenue District on 26.11.2010 was filed on 26.11.2010 and that an attested copy of the said affidavit is also available in the records. The court below shall while considering the issue regarding maintainability have regard to that aspect of the matter as well, notwithstanding the contention raised by the petitioner that attested copy of such an affidavit has not been served on him along with a copy of the election petition.
Registry to transmit the records back to the trial court forthwith along with a copy of this judgment.
Sd/-
P.N.RAVINDRAN JUDGE rkc/vpv