Kasaragod: The Principal Munsiff Court of Kasaragod declared the election of an IUML panchayat member void because he did not declare a criminal case pending against him in the nomination papers.
Principal Munsiff Rasna Vijayan went on to declare the runner-up in the December 2020 local body elections as the winner in Angakkalari ward (No 13) of Udma grama panchayat. "Declaring an election void over non-disclosure of a criminal case is one thing. But to declare the candidate who lost the election as the winner is totally weird. We will be challenging the order in the District Court," said Mohammed Haris, the IUML ward member who lost the seat because of the order.
The Principal Munsiff's Court gave the judgment on a petition filed by the LDF's CPM candidate at Angakkalari K N Abbas Ali Asif (55), who had lost the election by 25 votes. "I came to know of the criminal case against the UDF candidate in Bekal police station and Hosdurg court only after the election. When I consulted my lawyer, he told me that suppression of criminal cases in nomination paper was good grounds to get the election declared void," said Asif.
He immediately challenged the election under Sections 88 and 89 of the Kerala Panchayat Raj Act, 1994, which authorises the Munsiff court to try grama panchayat election petitions. Abbas Ali Asif's victory comes after three years of legal battle.
The order would give the CPM a majority in the 21-member Udma grama panchayat. As of now, the CPM with 10 members controls the panchayat board but is one short of a simple majority. The UDF has nine members and the BJP has two members.
The local body election was held on December 14, 2020, and the votes were counted on December 16. For the first time in 30 years, a UDF candidate (Mohammed Haris) wrested the Angakkalari ward of Udma from the CPM -- albeit with a slender margin of 25 votes.
But at the time of the panchayat election, Haris was out on bail in a case of rioting and assaulting one CPM worker. He was named the first of the six accused in the case registered by Bekal Police on May 24, 2019. The same year, the case came up for hearing in the Judicial First Class Magistrate of Hosdurg, which issued multiple summons to the accused.
Yet, in the column to declare criminal cases, if any, in the election affidavit, Haris wrote 'NA' or 'not applicable'.
Haris told the Principal Munsiff's Court that he did not declare the case against him because he and the complainant in the rioting and assault case had reached a settlement and agreed to approach the High Court of Kerala to quash the case.
When contacted, Haris told Onmanorama that the rioting case against him was a countercase filed by the CPM. "During the Lok Sabha election, I was Rajmohan Unnithan's booth agent at Thiruvakkoli in Pallikkara village. On election day, CPM workers assaulted me when I tried to stop bogus voting. I filed a case against them. On counting day, after Unnithan won, UDF workers went to Thiruvakkoli -- a CPM bastion -- and burst crackers. This led to a clash between the two groups, and the CPM filed a case against 200 UDF workers and made me the first accused though I was not even present there," he said.
Haris said Asif was the CPM's branch secretary and had come to his house several times to hammer out a compromise. "So to say he was not aware of the case against me is a lie. He used my unintentional mistake against me after he lost the election," he said.
Haris said there was no bar on candidates facing criminal charges contesting elections. "So I had no motive to willfully suppress the case against me," he said.
But in the order, the Principal Munsiff noted that by the panchayat member Haris's own admission, he was aware of a criminal case pending against him in Hosdurg court, and there was no petition in the High Court of Kerala praying to quash the case against him till date. "Now the only question to be answered is whether nondisclosure of criminal cases by the first respondent at the time of filing of nomination can be a ground to declare his election void," the judge said in the order.
As per Section 52 (1A) of the Kerala Panchayat Raj Act, it is mandatory to mention in the Nomination Paper the Criminal Cases in which the candidate is involved. Section 52 (1A) of the Kerala Panchayat Raj Act lists the conditions required to declare a nomination valid. It says: "Every candidate submitting nomination under sub-section (1) shall not be deemed to be qualified to be elected to fill that post unless he submits, along with such nomination, the details regarding this educational qualification, criminal cases in which he is involved at the time of submission of nomination, property owned by him and other members of his families, liabilities including arrears due from him to any public sector undertaking or government or local self-government institutions and whether disqualified for defection under the Kerala Local Authorities (Prohibition of Defection) Act, 1999, in the form and manner as may be prescribed]."
The panchayat member violated the section and thus "he was not qualified to be elected to fill that post", said the order.
Also, there was no dispute on the votes secured by the candidates in the election. Haris secured 624 votes, the petitioner and CPM candidate K N Abbas Ali Asif secured 599 votes, and BJP candidate Baiju R, who was also made a respondent in the case, secured 160 votes. "The petitioner secured the next maximum number of votes in the election. Therefore, he is entitled to be declared as the returned candidate in the event of setting aside the election of the first respondent," the order said.
The order issued on October 31 directs Haris to pay the costs of the proceedings to Abbas Ali Asif. The order has, however, not reached the Udma Grama Panchayat President Lakshmi P president as directed by the Munsiff's Court, and Haris attended the meeting of the panchayat's standing committee on Wednesday, too.
Haris said that the Kerala Panchayat Raj Act provides reasons to disqualify a candidate but it does not mention that a candidate who lost the election can be declared the winner. He said he would appeal against the order in the District Court on Thursday.
