Kerala High Court
M.P. Rajan vs Kerala State Election Commission, ... on 30 July, 1999
Equivalent citations: AIR1999KER399, AIR 1999 KERALA 399, (1999) 2 KER LJ 965 (1999) 3 KER LT 601, (1999) 3 KER LT 601
Author: P.K. Balasubramanyan
Bench: P.K. Balasubramanyan
JUDGMENT Balasubramanyan, J.
1. The appellant is the petitioner in the Original Petition. The Original Petition was filed praying for the issue of a writ of certiorari to quash Ext.P2 a notice issued to the petitioner by the Secretary of Kizhakkambalam Grama Panchayat informing him that as per Section 35 (k) of the Kerala Panchayat Raj Act he had become disqualified to be a member of the Kizhakkambalam Panchayat with effect from 14-1-1998 and Ext.P9 copy of an order passed by the State Election Commission rejecting the applications filed by two members of the Kizhakkambalam Panchayat requesting the Election Commission to make an enquiry into the question whether the petitioner in the Original Petition had lost his membership and a petition filed by the petitioner himself complaining that the Panchayat was in error in not restoring to him his membership in the Panchayat on the basis of his application made under Section 37 (2) of the Kerala Panchayat Raj Act. There is a prayer for a declaration that the petitioner continues to be a member of the Kizhakkambalam Grama Panchayat and is a duly elected Vice President of the Panchayat and to restrain the Kizhakkambalam Grama Panchayat from electing a new Vice President in the place of the petitioner. The learned Single Judge having dismissed the Original Petition, the Writ Appeal has been filed.
2. The petitioner was elected as a member of the Kizhakkambalam Panchayat. Last meeting of the Panchayat that he attended was held on 14- 10-1997. Thereafter the petitioner did not attend the meetings held on 21-10-1997, 27-10-1997, 6- 11-1997, 4-12-1997, 8-12-1997 and 2-1-1998. On 19-1-1998 the petitioner was issued the notice Ext. P2 by the Secretary of the Grama Panchayat informing the petitioner that he had become disqualified to be a member of the Panchayat in terms of Section 35 (k) of the Kerala Panchayat Raj Act. The petitioner thereupon made an application dt. 27-1-1998 under Section 37 (2) of the Kerala Panchayat Raj Act seeking a restoration of his membership. Meanwhile two other members of the Panchayat, one Mr. M. M. Mani and one Mr. Roy George made applications before the State Election Commission under Section 36 (1) of the Panchayat Raj Act questioning the alleged disqualification of the petitioner under Section 35 (k) of the Act. These applications are seen dt. 28-1-1998, Along with those applications, the said two, applications also enclosed copies of the application made by the petitioner before the Panchayat under Section 37(2) of the Act. On 31-1-1998, the Kizakkambalam Panchayat rejected the application under Section 37{2) of the Apt made by the petitioner for restoration of his membership. It is thereafter that the petitioner purported to file a petition before the State Election Commission challenging the resolution of the Panchayat refusing to restore his membership. The State Election Commission held that the petitioner had acquiesced in his removal by seeking restoration of his membership under Section 37(2) of the Act and hence the question whether he was disqualified under Section 35(k) of the Act did not really arise for decision. The Election Commission also held that it had no jurisdiction to sit in appeal over the decision of the Panchayat rejecting the application for restoration under Section 37(2) of the Act made by the petitioner. Thus the petitions filed by Mr. M. M. Mani, Mr. Roy George and by the petitioner were dismissed.
3. According to the petitioner, he was got involved in a criminal case and he had surrendered before the police on 15-12-1997 and was in jail, until he was enlarged an bail. He had no proper notice of the meetings held on the several days in terms of the proviso to Section 35(k) of the Act. He had not acquired any disqualification. His further case is that on coming to know of the meetings he had made an application for leave through the Superintendent of the Sub Jail Muvattupuzha and the Panchayat was in error in rejecting his application. Even if the State Election Commission was right in holding that he had no right of appeal to the Election Commission against the decision of the Panchayat not to restore his membership in the application made under Section 37(2) of the Act, the Election Commission was obliged to take a decision on the application made by Mr. M. M. Mani and Mr. Roy George under Section 36(1) of the Act. The main challenge in the Original Petition against Ext. P2 communication issued to the petitioner by the Secretary of the Panchayat was that the said communication was issued to the petitioner without giving him a notice to show cause against the action and in issuing Ext. P2 notice, all principles of natural justice have been violated. These contentions of the petitioner were countered by the respondents. The Panchayat took the stand that there was proper service of notice on the petitioner in terms of Rule 3 of the Relevant Rules and the Panchayat was justified in not granting the relief sought for by the petitioner. The Panchayat also contended that having applied for restoration of his membership by invoking Section 37(2) of the Act, the petitioner cannot fall back upon the application said to have been made under Section 36(1) of the Act by two other members of the Panchayat. In terms of the Panchayat Raj Act, the duty of the Secretary was only to inform the petitioner that he had incurred a disqualification within the meaning of Section 35(k) of the Act and that there was no adjudication by the Secretary involved. Since no adjudication by the Secretary on the disqualification or otherwise of a member, was contemplated by the Act, the contention that rules of natural justice have been violated while issuing Ext. P2 notice had no merit. The Election Commission took the stand that no appeal lay to the Election Commission against the decision of the Panchayat rejecting an application for restoration of membership made under Section 37(2) of the Act and that, having elected to seek a restoration of his membership, the petitioner was precluded from seeking an adjudication under Section 36(1) of the Act as to whether his membership had been lost. It was also pointed out on behalf of the Election Commission that the petitioner had not made any application before the Commission under Section 36(1) of the Act and the applications were made only by two other members of the Panchayat.
4. The learned single Judge held that there was no adjudicatory process when the Secretary of the Panchayat informs a member that he has lost his membership in view of Section 35(k) of the Act and since no adjudication was involved, the contention that principles of natural justice have been violated, has no force. On the scheme of the Act, once it was found that a member was absent without permission for three meetings, the Secretary had to communicate that decision to the member since by operation of law, the member ceases to hold office. There was no dispute that the petitioner had not attended three consecutive meetings and on a plain reading of the Rule, it was clear that the communication issued by the Secretary was justified. Since the main contention, if not the only contention raised, was based on the violation of the principles of natural justice while issuing Ext.P2 communication by the Secretary to the petitioner, on his finding, the learned single Judge dismissed the Original Petition.
5. It is clear that against the order on an application under Section 37(2) of the Act for restoration of membership, no proceeding can be initiated before the Election Commission. Nor does an appeal lay to the State Election Commission. The decision to restore or not to restore, is that of the Panchayat and it is in terms of a resolution of the Panchayat. At best, the same could be got rescinded by invoking Section 191 of the Panchayat Raj Act and that power is vested in the Government. It cannot therefore be held that the State Election Commission was not justified in holding that it had no authority to interfere with the resolution of the Panchayat marked Ext.P5, refusing to restore the membership of the petitioner. It may also be noted that there is no prayer in the Original Petition seeking to quash the resolution of the Panchayat marked Ext.P5 by which the Panchayat refused to restore the membership of the petitioner. The main contention urged by Mr. Ramakumar was that rules of natural justice were not excluded by the Kerala Panchayat Raj Act and when a notice is issued to a member intimating him about his loss of membership in the Panchayat, considering that it affects the status of the member. Adherence to rules of natural justice is a must. According to counsel, before the Secretary issues a notice under Section 37(2) of the Act, a notice to show cause should be issued to a member and since that had not been done in this case, disqualification of the member itself was bad. Counsel submitted that the learned single Judge was in error in holding that there was no adjudication by the Secretary involved which made it obligatory to adhere to the Rules of natural justice before the issuance of a notice by the Secretary.
6. Sections 30 to 34 of the Act identify the persons who are disqualified from contesting an election to the Panchayat. Section 35 of the Act provides for toss of membership in a Panchayat. That Section provides that a member ceases to hold office as a member, if he incurs any of the disqualifications referred to in that section. Section 36 of the Act confers jurisdiction on the State Election Commission to determine whether a subsequent disqualification has been incurred by a member under Section 35 of the Act or he had become disqualified under Section 30 of the Act. Section 37 of the Act deals with restoration of membership. It is Sub-section (2) of Section 37 of the Act that deals with the specific contingency of a member acquiring disqualification by virtue of Section 35(k) of the Act. Section 37(2) provides that where a person ceases to be a member under Clause (k) of Section 35 of the Act, the Secretary of the Panchayat shall at once intimate that fact in writing to that member and report that fact at the next meeting of the Panchayat. Section 37(2) gives the member a right to apply to the Panchayat for restoration of his membership on or before the date of the next meeting of the Panchayat or within 15 days of receipt of intimation by him from the Secretary intimating him of the fact that he has ceased to be a member in view of Section 35(k) of the Act. It is clear on the scheme of the Act, that a notice is issued by a Secretary to the Panchayat under Section 37(2) of the Act only in discharge of his administrative function on finding that the member had absented himself without permission for the meetings stipulated in Section 35(k) of the Act. The Act does not contemplate any adjudication by the Secretary either before issuance of the notice under Section 37(2) of the Act, or subsequent to the issuance of the notice under Section 37(2) of the Act. A member who receives a notice under Section 37(2) of the Act, is given the right to dispute the alleged disqualification by seeking a determination of that question from the State Election Commission by approaching that Commission under Section 36 of the Act. In fact, the right to approach the Election Commission questioning the intimation informing a member that he has incurred the disqualification under Section 35(k) of the Act, is conferred not only on the member disqualified, but also on any other mem-ber of the Panchayat and even on a voter in the Panchayat. Sub-section (2) of Section 36 contemplates an enquiry by the State Election Commission, if a motion is made before it for determination of the question of disqualification. Subsection (3) of Section 36 provides that the procedure for trying a suit in terms of the Code of Civil Procedure, will apply to such an enquiry. It is therefore clear that the Act does not contemplate issuance of any show cause notice by the Secretary of the Panchayat to the member to whom intimation is given under Section 37(2) of the Act about his having incurred the disqualification under Section 35(k) of the Act. The only adjudication that is contemplated is when that member or any other member of the Panchayat or a voter in the Panchayat, raises a dispute regarding that question before the State Election Commission by invoking Section 36 of the Act. We are therefore not able to accept the contention of the learned Counsel for the petitioner that the Secretary of the Panchayat could not have issued a notice to him straightway under Section 37(2) of the Act and before giving him an opportunity to show cause or to show that he could not be disqualified by virtue of the proviso to Section 35(k) of the Act. The member has to seek such an adjudication before the State Election Commission after the receipt of the notice under Section 37(2) of the Act. The learned single Judge in our view was therefore justified in holding that there was no adjudicatory process involved, when a Secretary issues a notice in terms of Section 37(2) of the Act.
7. In this case, the petitioner did not move the State Election Commission under Section 36 of the Act seeking a determination of the question whether he was in fact disqualified. What the petitioner did was to move an application under Section 37(2) of the Act praying that his membership may be restored. That prayer was rejected by the Panchayat by its resolution Ext. P5. Ext. P5 resolution was not challenged before the Government by seeking to get it rescinded, nor is it sought to be got set aside in this Original Petition. Therefore, the claim of the petitioner for restoration of membership does not any more survive. The same stands concluded by the resolution of the Panchayat marked Ext. P5. We have already indicated that the resolution Ext. P5 could not be appealed against before the State Election Commission and the Election Commission had no jurisdiction to consider the correctness of that resolution.
8. Though the petitioner himself did not move the State Election Commission under Section 36 of the Act, two other members of the Panchayat did move the State Election Commission under Section 36 of the Act, seeking a determination of the question whether the petitioner was disqualified in terms of Section 35(k) of the Act. Determination on merits was not done by the State Election Commission in its view that since the petitioner himself had sought a restoration of his membership accepting the disqualification imposed on him, it was not necessary for the State Election Commission to go into the question whether the petitioner was disqualified in terms of Section 35(k) of the Act. Certainly, the remedy available under Section 36 of the Act and the one of restoration of membership available under Section 37(2) of the Act, are inconsistent remedies. Whereas the remedy under Section 36 is based on a dispute regarding the very question of disqualification, the remedy under Section 37(2) of the Act is one arising out of acceptance of the position that the conditions of Section 35(k) of the Act are satisfied, but seeking a restoration of the membership which has already come to an end by virtue of the operation of Section 35(k) of the Act. When two inconsistent remedies are available to a person and he chooses one in preference to the other, he is clearly estopped by the principle of election from invoking the other relief on his failing to get relief in the approach he has chosen. The State Election Commission has more or less adopted this view when it passed the order Ext. P9.
9. To a certain extent, the view adopted by the State Election Commission may be justified. As observed by Spencer Bower and Turner on Estoppel by Representation, Third Edition :
".....where either of two alternative tribunals are open to a litigant, each having jurisdiction over the matters in dispute, and he resorts for his remedy to one of such tribunals in preference to the other, he is precluded, as against his opponent, from any subsequent recourse to the latter, at least at the point at which he has taken judgment in the first.....".
It isclear that the petitioner having approached the Panchayat with an application for restoring his membership on the basis that he has incurred the disqualification under Section 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.
10. But here, on the scheme of the Act and on the facts of the case, we have a slightly different situation. The petitioner has not sought to invoke the jurisdiction of the State Election Commission under Section 36 of the Act. The petitioner has sought only restoration of his membership from the Panchayat and that request of the petitioner has been rejected. But Section 36 of the Act gives the right not only to the member sought to be disqualified but also to the other members of the Panchayat and even to a voter in the Panchayat. In the present case, applications under Section 36 of the Act have been made before the State Election Commission by two other members of the Panchayat. Of course they have also referred to the fact that the petitioner has himself moved the Panchayat under Section 37(2) of the Act. But still, the fact remains that two other persons entitled to seek an adjudication under Section 36 of the Act regarding the disqualification of the petitioner, have approached the State Election Commission for determination of the question whether the petitioner has incurred the disqualification under Section 35(k) of Act. The petitioners before the Election Commission, have not sought the restoration of the membership of the petitioner by approaching the Panchayat under Section 37(2) of the Act. Nor do they have any such right to approach the Panchayat under Section 37(2) of the Act, since the right to approach the Panchayat under that provision is confined to the member himself who is informed that he has incurred the disqualification. It is therefore not possible to invoke the principle of estoppel by election in such a situation, though the principle of estoppel by election may apply in a case where the member who is allegedly disqualified, himself approaches both the State Election Commission under Section 36 of the Act and the Panchayat under Section 37(2) of the Act. But the same would not be the position in a case where the determination from the State Election Commission is sought by other competent persons envisaged by Section 36 of the Act, whatever may be the attitude that was adopted by the member himself. The doctrine of estoppel by election cannot therefore be invoked to hold that the petitions filed before the Election Commission under Section 36 of the Act by Mr. M. M. Mani and Sri Roy George cannot be decided on merits on the ground that the member himself had sought a restoration of his membership by approaching the Panchayat under Section 37(2) of the Act. Of course, it is a fact that what the petitioners before the State Election Commission are trying to establish is the fact that the petitioner has not incurred the disqualification when in a sense, the petitioner has himself accepted his disqualification by resorting to Section 37(2) of the Act. But on the scheme of the Panchayat Raj Act, we are inclined to the view that the application by other competent persons under Section 36 of the Act could not be rejected on the ground that the disqualified member himself has resorted to Section 37(2) of the Act by seeking a restoration of his membership. We must remember in this context that a member when he is disqualified loses a valuable right. We have already noticed that when a Secretary to the Panchayat issues him a notice under Section 37(2) of the Act, there is no adjudication by the Secretary involved before the issuance of that notice. We have also held that the member cannot question the notice issued to him before the Secretary himself. The remedy provided under the Act is for approaching the State Election Commission to have a determination of the question. Jn such a situation, we are of the view that the principle of estoppel by election cannot be invoked in a case where the determination is sought by a person other than the member who is disqualified, even though the member himself may have applied under Section 37(2) of the Act and it might be possible to apply the doctrine of (estoppel by election as against the member. Obviously Section 36 of the Act has conferred the right on any other member of the Panchayat and on a voter of the Panchayat, since the loss of membership of even a member would lead to altering the majorities in the Panchayat and it is a matter of serious consequence not only to the member concerned, but also to the entire Panchayat. We are therefore of the view that the State Election Commission was not justified in rejecting the application made by Roy George and M. M. Mani shown as Application Nos. 2 of 1998 and 3 of 1998.
11. But, we have to notice that neither Roy George nor M. M. Mani challenged before this Court the dismissal of their applications. Application Nos. 2 and 3 of 1998. The Original petition in this Court was filed only by the petitioner who had moved Application No. 5 of 1998 before the State Election Commission. We have endorsed the view of the State Election Commission and of the learned single Judge, that Application No. 5 of 1998 was not maintainable even if it was to be treated as an appeal against the rejection by the Panchayat of the application made by the petitioner for restoration of his membership under Section 37(2) of the Act. Of course, it may be possible to say that though application Nos. 2 and 3 of 1998 were made by other members of the Panchayat, the subject-matter of those applications was the alleged disqualification of the petitioner and hence the petitioner can be treated as a person aggrieved and as one entitled to challenge the rejection of those applications. It may also be possible to postulate that when the petitioner challenged the entire order Ext. P9 which was a common order in all the three applications and his challenge was entertained by this Court in the Original Petition, the petitioner had been impliedly given the permission to question those orders, though he was eo nominee not a party to those applications. But we have to take note of the fact that the petitioner himself sought restoration of his membership by accepting his disqualification and by approaching the Panchayat under Section 37(2) of the Act and had never approached the Election Commission seeking a determination of the question whether he has incurred the disqualification or not. We have already indicated that the petitioner, if he had approached the State Election Commission after he had moved his application under Section 37(2) of the Act, would have been estopped by the principle of election from pursuing his application before the State Election Commission. Under such circumstances, no relief can be granted to the petitioner in this Writ Appeal on our conclusion that there, was no adjudicatory process before the Secretary of the Panchayat and on our further conclusion that the challenge raised by the petitioner before the State Election Commission against the resolution of the Panchayat refusing to restore his membership was not maintainable. In such a situation, we are of the view that the petitioner is not entitled to any relief in this writ appeal.
We therefore dismiss the writ appeal.