Kerala Panchayath Raj Act

Sec. 79 & 104.- Decision by drawing lot in event of securing equal number of votes is an age old practice and well accepted procedure in democracy and the same cannot in any way be held to be unfair or unreasonable or infringing the constitutional rights of any person - Provisions are valid and sustainable . [Murali Vengath vs The Returning Officer. 2001(1) KLT 584 = 2001(1) K.L.J. 693 =ILR 2001 (1) Ker 584 K.K.Usha (CJ) & Kurian Joseph (J). ]

Candidate included in the list will have only a right to be considered for appointment and by reason of inclusion of the name of candidate in the list give no vested right, is created. P.S.C. list was brought before the coming into force of the Panchayath Raj Act. Candidates will not get any claim for appointment.[ Gopalan vs Director of Panchayaths. 1999(2) KLJ 48 = 1999(2) KLT 483. K.A.Abdul Gafoor{J}]

Sec. 89 - Limitation Act - Sec. 5 - Petition to condone delay in filing the election petition not maintainable . [ E.M.Anandavally vs T.Ajita.. ILR 2001(3) Ker 457 K.S.Radhakrishnan & K.Balakrishnan Nair (JJ)]

Sec. 90 - Election petition dismissed for non-joinder of necessary parties , namely, all the parties who were duly nominated to the election - Court held that all the nominated candidates who withdrew their nominations before the date of withdrawal are not necessary parties to the Election Petition - Trial Court order set aside. [Sulekha Ibrahim vs George Thomas. 2002 (2) KLT 172. N.Krishnan Nair (J)]

Sec. 91 - District Court trying an election petition - Order is revisable - Decision laid down in 1996(2) KLT 350 is not the correct proposition of law. -Non compliance of Sec. 91 is a curablee defect -A true copy does not mean an absolute exact copy, but it means that the copy shall be true, that nobody can by any possibility misunderstood it. [ P.Aisha Potty vs The Returning Officer. 2001 (3) KLT 867 = 2001 (2) KLJ 767 .V.P.Mohankumar & K.K.Denesan (JJ)]

S.94 - Munsiff must state that how he was primarily satisfied and how according to him certain votes had been improperly accepted and improperly rejected. [ Madhavan Nair Vs. Narayanan Nambiar, 2002 (1) KLT SN 82 Page No.67. . S. Sankarasubban (J)]

Sec. 96 & CPC - Sec. 9 - Actionable nuisance - Panchayat grants sanction to construct factory for the manufacturing cement cavity box -Finding in CRP against the temporary injunction that the suit is maintainable is not barred by res judicata for taking a contention that the suit is not maintainable in suit - When licence is issued for running a factory and the sanction accorded for the construction of the building are not in accordance with the provisions of the Act, that can rightly be challenged before the appellate authority . [Thressiamma vs Sebastian Mathew 2001 (3) KLT SN 23, Page No.18 = 2001 (2) KLJ 311 = (S.Marimuthu (J)]

Sec. 249 - Suit for recovery of money due as balance amount towards supply of materials for repairing road - Suit filed after six months after the expiry of the months' notice - There is no recital in the agreement that Sec. 249 will apply with regard to limitation Act. [Kumbdaje Grama Panchayath vs Abdul Khader. 2001 (1) KLT.SN.91.P.75. S.Marimuthu (J)]

Sec. 24 - There can be no inclusion of names in the electrol roll after the last date for making nominations for an election in a constituency . [State Election Commissin vs Krishnan . 2001(1) KLT 285.K.K.Usha (ACJ) & Kurian Joseph (J)]

Sec.34 (1)(g) - Disqualification - Agreement with Punja Special Officer - The Punja Special Officer cannot be equated with the Government. The Punja Special Officer cannot represent the State Government. Even if the contract entered into by the petitioner is with the Punja Special Officer, it cannot be said that it is a contract with the Government; but it is only a contract with the Punja Special Officer. Necessarily he cannot be said to be disqualified merely because he had a subsisting contract either with the Punja Special Officer or with the Padasekharam Committee as contended by the respective parties. That contract will not come within the ambit of Section 34(g) of the Kerala Panchayath Raj Act to disqualify the petitioner for being elected or to continue as an elected member of the Panchayath. [Sebastian Joseph v. Devasia Antony and others, C.R.P. No. 1910 of 1997, dated 21-01-2000. K.A. Abdul Gafoor (J)]

Sec. 34 (2) - Resolution by Panchayath refusing to restore membership . Petitioner member having approached the Panchayath with an application for restoring his membership on the basis that he has incurred the disqualification under Sec. 35(k) of the Act, he is estopped from later approaching the State Election Commission for determination of the question of his loss of membership on the basis that he has not incurred the disqualification. Application not maintainable even if it was to be treated as an appeal against the rejection by the Panchayath of the application made by the petitioner for restoration of his membership under Sec. 37(2) of the Act [ M.P.Rajan vs The Kerala State Election Commission. W.A.NO. 1992 of 1998. Dt 30-7-1999. P.K.Balasubramanyan & G.Sasidharan {J}]

Sec. 36 - Application by individual members approaching Election Commission for determination of the question whether the member has incurred disqualification under Sec. 35(k) of the Act is maintainable. Application by other competent persons under Sec.36 cannot be rejected on the ground that the disqualified member himself has resorted to sec.37(2) of the Act by seeking a restoration of membership. Principal of estoppel by election cannot be invoked. [ M.P.Rajan vs The Kerala State Election Commission. W.A.NO. 1992 of 1998. Dt 30-7-1999. P.K.Balasubramanyan & G.Sasidharan {J}]

Sec. 79 (1) - Tie between two candidates in election - Successful candidate is to be determined by casting votes . Provision is legal and valid [ Padmanabhan vs State of Kerala. ILR 2001(1) Ker 68. M.Ramachandran (J)]

Sec. 89 - Election petition - No provision for condonation of delay - Time prescribed is absolute. [B.M.Anandvally vs T.Ajitha. 2001(1) KLJ 175. M.Ramachandran (J)]

Sec. 90 - Election petition cannot be dismissed on the ground of impleadment of unnecessary party - [Chintha Dharmarajan Vs. Mary Anto, 2002 (2) KLT 478 2002 (1) KLJ 654. . N.Krishnan Nair (J) ]

SEC. 191 - Panchayath Raj (Conduct of Public Works) Rules, 1997- Committee constituted for the construction of road -Chairman is the figure head and the convenor is the person who has to represent the committee in every matters. Interference by the Government in the matter of appointment and removal is not justifiable. [ Ahamed Kutty vs State of Kerala. 2001 (1) KLT. 614. M.Ramachandran (J)]

Sec. 155 (4) - Resignation of a member of Panchayath - Election petition is maintainable before the Election Commission [P.Y.Annamkutty vs P.M.Baby. AIR 2001 Ker 18. J.B.Koshy (J)]

Sec.206 and 218(4) - The right to collect and remove river sand being a "profit a prendre" ie. a profit or benefit
arising out of land, it has to be regarded as immovable property within the meaning of the transfer of property Act read with Sec.3(2) of the General Clauses Act. The light to enter panchayath land and to take some profit of the soil or a portion of the Soil it self was granted to the petitioners. Hence the provision of Sec.206 of the Kerala Panchayath Raj Act is attracted and the agreement has to be executed by the petitioners on a stamp paper of the value of 5% of the total bid amount. [A.R. Anandan v. The Deputy Director of Panchayaths, O.P.No.12137 of 1998,dated 3-11-1999. AR. Lakshmanan & S. Sankarasubban (JJ)]

Sec. 220(b) - Construction of pillers within three meters of public road for providing support to approach road or bridge as entrance to the building is not illegal - cannot be demolished. [ Varghese Thomas vs State of Kerala. 2001(1) KLT.SN.40.P.38. M.Ramachandran (J)]

Sec. 271 (G) 9 - Conferring the same status of the High Court judge to all the members of the Ombudsman is illegal and violative of Art. 14, 217 and 221 of the Constitution of India. - Procedure for removal is same as High Court judge - Treating equals and unequals is violative of Art. 14 - Appointment of sitting or retired Judges belonging to higher judiciary as Chairman of the Ombudsman or a member would not erode independence of the judiciary. [Thoppil Sreekumar vs. State of Kerala. ILR 2001(1) Ker 116. A.V.Savant (CJ) & K.S.Radhakrishnan (J)]

Sec.282 - Disputes between the Panchayath - Government should settle disputes bettween the Panchayats. - District Collector can act for Government - The Government always acts through its officers and the Government is absolutely free to get the issue decided by any of the officers in its service. [Keerampara Grama Panchayath Vs. State of Kerala and others, O.P.No.15060 of 2001. . (C.N.Ramachandran Nair (J)]