KAUMUDI MADHAVAN Vs. STATE ELECTION COMMISSIONER
HIGH COURT OF KERALA
STATE ELECTION COMMISSIONER
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(1.) Petitioner herein is a returned candidate in a Panchayat Election. His election was challenged by one of the contesting candidate by filing O.P. (Election) No. 169/2000 before the District Court, Trivandrum. Petitioner herein is the 4th respondent and the Returning Officer is the second respondent in the said Original Petition. She filed an application -I..A. 1836/2003 for summoning the third respondent after citing him as a witness in the witness list. The court below by Ext. P1 declined to summon the witness on the ground that the Returning Officer being one of the respondents in the election petition, petitioner is not entitled to cite another respondent/defendant as a witness. Reliance was also placed on the decision of this Court in Syed Mohammed v. Aziz ( 1990 (2) KLT 952 ). Challenging the above order, petitioner has come up with this writ petition. The Assistant Returning Officer is also made a party as the third respondent in the proceedings.
(2.) The learned counsel for the petitioner raised the following contentions:
(i) As per S.90 of the Panchayat Raj Act, the Returning Officer or the Assistant Returning Officer is not a party required to be joined as respondent and hence the Assistant Returning Officer though impleaded as the third respondent in the election petition cannot be given the position as a defendant for the purpose of summoning him as a witness in the case.
(ii) As per the proviso to S.94 of the Panchayat Raj Act, the court has the discretion to refuse for reasons to be recorded in writing to examine any witness only if it is of the opinion that evidence of such witness is not material for the decision of the petition or the party tendering such witness in doing so on frivolous grounds with a view to delay the proceedings. In other words, according to him, the court cannot refuse to examine the witness on any other ground other than (that are mentioned in S.94 of the Act).
(iii) O.21, R.16 of the Code of Civil Procedure empowers the court to issue summons on any party.
(3.) As regards the first contention that the Returning Officer, or the Assistant Returning Officer as the case may be are not required to be parties as per S.90 of the Act is concerned, it has to be observed that S.90 does not by itself bar any person being shown as a defendant or a respondent in the election petition. S.90 of the Kerala Panchayat Raj Act reads as follows :
A petitioner shall join as respondents to his petition:-
(a) Where the petitioner in addition to claiming a declaration that the election of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, the returned candidates and;
(b) any other candidate against whom allegations of any corrupt practice are made in the petition.";
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