Kerala High Court
Manoj Kumar vs Mohanan on 4 July, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:48993
WP(C) NO. 22249 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 4TH DAY OF JULY 2025 / 13TH ASHADHA, 1947
WP(C) NO. 22249 OF 2024
PETITIONER:
MANOJ KUMAR,
AGED 58 YEARS
S/O. RAGHAVAN, AR COTTAGE, MANGODE, MANGODE P O,
CHITHARA, KOLLAM DISTRICT, PIN - 691559.
BY ADVS.
SRI.C.RAJENDRAN
SRI.B.K.GOPALAKRISHNAN
SMT.R.S.SREEVIDYA
SHRI.MANU M.
RESPONDENTS:
1 MOHANAN,
AGED 61 YEARS
S/O. SANKARAN, AMMOOTTY, CHITHARA, AYIRAKUZHI
P.O., KOLLAM, PIN - 691559.
2 CHITHARA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, CHITHARA P.O.,
KOLLAM DISTRICT, PIN - 691559.
3 SUNIL SADANANDAN,
S/O. SADANANDAN, THE SECRETARY, CHITHARA GRAMA
PANCHAYATH, RESIDING AT MARAD, VATTATHANAM P.O.,
KUNNIL, KADAKKAL, KOLLAM, PIN - 691021.
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WP(C) NO. 22249 OF 2024
2
4 SMT. RAJALAKSHMI,
[ASSISTANT DIRECTOR, AGRICULTURE DEPARTMENT,
CHADAYAMANGALAM, KOLLAM-691534, (THEN RETURNING
OFFICER), CHITHARA GRAMA PANCHAYATH, PIN-691
534]*
THE ASSISTANT DIRECTOR, AGRICULTURE DEPARTMENT,
CHADAYAMANGALAM, KOLLAM, PIN-691534.
*THE ADDRESS OF THE 4TH RESPONDENT IS CORRECTED
AS PER ORDER DATED 13.08.2024 IN I.A.01/2024.
5 THE KERALA STATE ELECTION COMMISSION,
JANAHITHAM TC-27/6(2), VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAM, PIN - 695033.
BY ADVS.
SMT.VIDYA KURIAKOSE, SR.GOVERNMENT PLEADER
SHRI.SIJU KAMALASANAN, SC, CHITHARA GRAMA
PANCHAYATH
SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION
COMMISSION, KERALA
SHRI.S.ABHILASH
SMT.AHSANA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 04.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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WP(C) NO. 22249 OF 2024
3
C.S.DIAS, J.
---------------------------------------
W.P.(C) No. 22249 of 2024
-----------------------------------------
Dated this the 4th day of July, 2025
JUDGMENT
The petitioner contested the panchayat election
from Ward No.15 of Mangodu Ward to become a
member of Chithara Grama Panchayat. The 1st
respondent, by perpetrating fraud, got his name
included in the voters' list of Ward No.15. The 1 st
respondent was the returned candidate in the election.
The 1st respondent has never resided in Ward No.15. He
is an ordinary resident of Ammootty House in Chithara
P.O in Ward No.2 of Chithara Panchayat. Even though
the petitioner had filed W.P.(C) No.16622/2021 before
this Court, to set aside the election of the 1 respondent,
st
by Ext.P8 judgment the writ petition was dismissed.
Actually, the 1st respondent had produced a forged
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electoral identity card before this Court, to establish
that he is a resident of Ward No.15. No other supporting
documents were produced before this Court.
Subsequently, the petitioner filed a review petition,
which was also dismissed by Ext.P9 order. Assailing
Ext.P8 judgment, the petitioner filed W.A.No.634/2023.
Yet, the same was also dismissed by Ext.P10 judgment.
However, in the review petition filed to review Ext.P10
judgment, this Court in Ext.P11 order observed that the
petitioner is free to canvass any ground before the
competent authority. Accordingly, the petitioner filed
Ext.P14 petition before the 5 th respondent. But, by the
impugned Ext.P15 order, the 5th respondent has rejected
Ext.P14 petition on the ground that the petition is not in
proper form as provided under the Code of Civil
Procedure, 1908 ('CPC', in short). Ext.P15 is erroneous,
illegal and arbitrary.
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2. In the counter-affidavit filed by the 1 st
respondent, it is contended that this writ petition is
barred by the principles of res judicata in light of
Exts.P8 to P11 judgments/orders. If the petitioner was
aggrieved by the 1st respondent contesting the election
or being declared as the returned candidate, the
petitioner's remedy was to file an election petition
under Section 102 of the Kerala Panchayat Raj Act,
1994 ('Act', in short) within 30 days after the
publication of the result. The questions raised in the
writ petition are disputed questions of fact, which
cannot be adjudicated in a writ petition under Article
226 of the Constitution of India.
3. Heard; the learned counsel for the petitioner,
the learned counsel for the 1st respondent and the
learned respective Standing Counsel appearing for
respondents 2 and 5.
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4. The core of the petitioner's case is that, the 1 st
respondent could not have contested the election in
Ward No.15 as he is not an ordinary resident of the said
Ward. Undisputedly, in the earlier round of litigation,
the petitioner had raised the very same contention, and
the same was repelled by this Court in the Ext.P8
judgment, by holding as follows:
"12. The challenge made by the petitioner is based
on alleged manipulations in the voters' list whereas the
petitioner's name has been included. Section 22 of the
Kerala Panchayat Raj Act, 1994 deals with preparation
and revision of electoral rolls. Section 23 provides for
correction of electoral rolls. Section 25 provides for an
appellate remedy in the matter of electoral rolls. The
petitioner has not raised any objection nor has filed
appeal against the inclusion of the 1st respondent in the
electoral roll. Therefore, the petitioner is precluded from
making any challenge based on the electoral roll, in these
writ proceedings. Irregularity in preparing electoral roll
by including persons not qualified for being enrolled as a
voter cannot be a ground to challenge election.
13. The petitioner cannot be permitted to challenge
the election of the 1st respondent to the Panchayat
because Section 87 of the Kerala Panchayat Raj Act, 1994
mandates that no election shall be called in question
except by an election petition presented in accordance
with the provisions of Chapter X of the Act, 1994. Section
89 provides that an election petition calling in question
any election may be presented on one or more grounds
specified in Section 102 and Section 103 within 30 days
from the date on which the returned candidate was
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declared elected. The petitioner has not filed any petition
before the competent forum within the stipulated time.
14. The argument of the petitioner is that since there is
an element of fraud and manipulation in including the 1st
respondent in the voters list of Mangode Ward, the
petitioner can file and sustain a writ petition under
Article 226 of the Constitution of India. Exts.R1(a) and
R1(b) would show that there was change in the residence
of the 1st respondent and it was based on Ext.R1(b)
electoral identity card issued by the Election Commission
of India that the petitioner's name was included in the
electoral roll of Mangode Ward. For all the afore reasons,
the writ petition is without any merits.
Hence, the writ petition is dismissed."
5. Aggrieved by Ext.P8 judgment, the petitioner
had filed a review petition and writ appeal, which were
dismissed by Ext.P9 order and Ext.P10 judgment. After
that, the petitioner filed a review petition to review
Ext.P10 judgment, where a Division Bench of this Court
ordered as follows:
"If any of the grounds urged by the review petitioner
is available for him to canvass before the authority, the
review petitioner is free to urge that ground in forum in
accordance with law, notwithstanding that the challenge
made before this Court.
With the above observation, the review petition is
disposed of."
6. Consequent to the above order, the petitioner
preferred Ext.P14 petition before the 5 th respondent.
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However, by the impugned Ext.P15 order, the 5th
respondent rejected Ext.P14 petition on the ground that
the petition is not in the form as provided under the
CPC.
7. In the present writ petition also, the petitioner
seeks to set aside the 1 st respondent's election alleging
that he is not ordinarily residing in Ward No.15.
However, in light of the findings in Exts.P8 and P10
inter-party judgments, the petitioner is estopped from
re-agitating a concluded question, that has attained
finality and in view of the principles of res judicata.
Therefore, the petitioner's further challenge against the
election of the 1st respondent has to necessarily fail, and
the same is rejected.
8. Now, by Ext.P11 order, this Court has permitted
the petitioner to canvass his grievance before the
competent authority. The only remedy available to the
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petitioner is to seek for the disqualification of the 1 st
respondent as a member of the Panchayat under clause
(h) of sub-section (1) of Section 35 of the Act. It is
apposite to refer to Section 35(1)(h), which reads as
follows:
"35. Disqualifications of members.- [(1)] Subject to the
provisions of section 36, or section 102 a member shall
cease to hold office as such, if he -
*** *** *** ***
(h) ceases to reside within the area of the panchayat
concerned."
9. By clause (h) of sub-section (1) of Section 35, an
elected member would stand disqualified, if he ceases
to reside within the area of the Panchayat. Therefore,
Ext.P14 application submitted by the petitioner can only
be considered to be one filed under said provision, that
is to disqualify the 1st respondent from acting as a
member of the Panchayat, since he allegedly ceases to
reside within the Panchayat.
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10. Admittedly Ext.P14 petition filed by the
petitioner was not considered on its merits because the
same was not in the proper form as per the procedure
formulated by the 5th respondent under Section 141 of
the Act. Hence, I am of the definite view that the
petitioner be given one more opportunity to file a
proper petition before the 5th respondent.
On an overall consideration of the facts and the
materials on records and the findings rendered above, I
dispose of this writ petition by permitting the petitioner
to file a proper petition, as per the filing procedure
formulated by the 5th respondent, within one month
from today. If such petition is filed, the 5 th respondent
shall consider the matter in accordance with law, after
affording the petitioner and the 1 st respondent an
opportunity of being heard.
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The writ petition is ordered accordingly.
Sd/-
C.S.DIAS, JUDGE
dkr
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WP(C) NO. 22249 OF 2024
APPENDIX OF WP(C) 22249/2024
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE PHOTOCOPY OF THE ELECTION RESULT
PUBLISHED BY THE 5TH RESPONDENT DATED
16/12/2020
EXHIBIT P2 A TRUE PHOTO COPY OF THE NOMINATION
PAPER SUBMITTED BY THE FIRST RESPONDENT
DATED 18/11/2020
EXHIBIT P3 A TRUE PHOTOCOPY OF THE VOTERS LIST
DATED 20/10/2020
EXHIBIT P4 A TRUE PHOTO COPY OF THE PETITION
SUBMITTED BY THE PETITIONER BEFORE THE
5TH RESPONDENT DATED 17/12/2020
EXHIBIT P5 A TRUE PHOTOCOPY OF THE REPLY DATED
12/01/2021 ISSUED BY THE 5TH RESPONDENT
EXHIBIT P6 A TRUE PHOTO COPY OF THE REPLY GIVEN BY
THE ASSISTANT DIRECTOR OF PANCHAYAT
DATED 23/03/2021
EXHIBIT P7 A TRUE PHOTOCOPY OF THE WRIT PETITION
(C) NO.16622/2021 WITHOUT EXHIBITS DATED
07/08/2021
EXHIBIT P8 A TRUE COPY OF THE JUDGMENT OF THIS
HON'BLE COURT DATED 14/09/2021 IN W.P(C)
EXHIBIT P9 A TRUE PHOTOCOPY OF THE JUDGMENT DATED
09/12/2022 IN R.P NO.1096/2022 IS OF
THIS HONORABLE COURT
EXHIBIT P10 A TRUE PHOTOCOPY OF THE JUDGMENT IN WRIT
APPEAL NO.634/2023 DATED 21/06/2023
EXHIBIT P11 A TRUE PHOTOCOPY OF THE ORDER OF THIS
HON'BLE COURT IN REVIEW PETITION NO.
905/2023 DATED 06/12/2023
EXHIBIT P12 A TRUE PHOTOCOPY OF THE REPLY GIVEN BY
THE 2ND RESPONDENT DATED 20/03/2024
EXHIBIT P13 A TRUE PHOTOCOPY OF THE RENEWED VOTERS
LIST ALONG WITH THE DETAILS ISSUED BY
THE ELECTORAL REGISTRATION OFFICER DATED
27/10/2023
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EXHIBIT P14 A TRUE COPY OF THE PETITION SUBMITTED BY
THE PETITIONER BEFORE THE 5TH RESPONDENT
DATED 20/02/2024
EXHIBIT P15 A TRUE PHOTOCOPY OF THE ORDER OF THE 5TH
RESPONDENT DATED 25/03/2024
