Kerala High Court
K.V.Sarala vs Alex on 17 November, 2020
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A.No. 294/2016 : 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942
WA.No.294 OF 2016
JUDGMENT IN WPC 9959/2014 DATED 14-12-2015 OF HIGH COURT OF KERALA
APPELLANT/2nd RESPONDENT:
K.V.SARALA
COUNCILOR, WARD NO.8, ALUVA MUNICIPALITY, RESIDING AT
KUNDALA HOUSE, MANAPPURAM ROAD, THOTTAKKATTUKARA P.O.,
ALUVA-683 108.
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SRI.MANOJ RAMASWAMY
RESPONDENTS/PETITIONER & 1ST RESPONDENT:
1 ALEX
S/O JOSEPH, PADAMMTTUMEL HOSUE, RAIL ROAD, ALUVA,
ERNAKULAM DISTRICT-683 108.
2 THE KERALA STATE ELECTION COMMISSION
REPRESENTED BY ITS SECRETARY,
THIRUVANANTHAPURAM-695 033.
3 ADDL.R3 IMPLEADED:
SHAHIN JOJO
W/O JOJO.M.DANIEL, AGED 30 YEARS, THALIKKULAM HOUSE,
NEAR CSI CHURCH, ALUVA-683 101, ERNAKULAM DISTRICT.
(ADDL RESPONDENT NO.3 IS IMPLEADED AS PER ORDER
DTD.6.4.18 IN IA.NO.319/18.)
R1 BY ADV. SRI.T.R.RAJAN
R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC
R3 BY ADV. SRI.K.S.BHARATHAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.11.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No. 294/2016 : 2:
Dated this the 17th day of November, 2020.
JUDGMENT
SHAJI P. CHALY, J.
The captioned Writ Appeal is filed by the second respondent in W.P.(C) No. 9959 of 2014 challenging the judgment of the learned Single Judge dated 14.12.2015, whereby learned Single Judge set aside Ext.P3 order passed by the Kerala State Election Commission in O.P.No. 47 of 2013 dated 01.03.2014 filed by the first respondent/writ petitioner invoking the provisions of Section 92 of the Kerala Municipality Act, 1994 (hereinafter called 'the Act, 1994) attributing disqualification against the appellant as a councillor of Aluva Municipality under Section 91(1)(f)of Act, 1994, and held as follows at paragraphs 9 to 15:
"9. Two specific issues arise for consideration in the above writ petition. One is whether the 2nd respondent has vacated her office on account of disqualification as provided under Section 91 (1)(f) of the Act and secondly, whether the 2 nd respondent is entitled for any benefit under Rule 3(iii) of the Rules.
10. Section 91(1) (f) reads as under;
"91. Disqualification of Councillors - (1) Subject to the provisions of section 92 or Section 178, a Councillor shall cease to hold office as W.A.No. 294/2016 : 3: such if he- (a) xxx (aa)xxx (b)xxx (c)xxx (d)xxx (e)xxx (f) acquires any interest in any subsisting contract made with, or work being done for the Government or the [any Local Self Government Institution] except as a shareholder (other than a director) in a company or except as permitted by rules made under this Act [or enters into the contract or work [with the Local Self Government Institution] as a Convener of the beneficiary committee which undertake the project or work [of any Local Self Government Institution], as per any rules made under this Act."
The above provision apparently creates an embargo for a Councillor to hold office if he/she acquires any interest in any subsisting contract or work being done for the Government or any Local Self Government Institution. The exception is to become a share holder other than a director in a company or if it is permitted by Rules framed under the Act. The exception equally applies if the Councillor enters into the contract or work with the Local Self Government Institution as a Convener of the beneficiary committee which undertake the project or work of any such institution as per rules made under the Act.
11. The complaint of the petitioner is that the 2 nd respondent, being the Councillor of Aluva Municipality, has entered into an agreement dated 7/10/2012, whereby charge has been created with reference to her property offering the same as security for repayment of the amounts collected by her. It is alleged that the 2 nd respondent has acquired interest in the contract made with the Municipality which W.A.No. 294/2016 : 4: amounts to disqualification. An agreement dated 31/1/2012 is produced along with the petition which is executed between the ad hoc Committee of Sree Krishna Swami Kshethra Upadesaka Samithi represented by its Secretary with the Secretary of Aluva Municipality. It is stated that the offer of the ad hoc Committee for construction of a temporary pedestrian bridge was accepted by the Municipality in its decision of the Municipal Council dated 28/1/2012. The agreement is for constructing the bridge for the period 2012, 2013 and 2014. The other terms and conditions are also specified. The licensee was also entitled to collect certain fee from the users of the said bridge. Other terms and conditions are also specified which includes exhibiting advertisements in the said structure on payment of tax to the Municipality. An amount of Rs. 7.5 lakhs was given as advance from the total amount of Rs. 15 lakhs which has to be remitted back to the Municipality after collecting the amount. Another agreement which is relevant is dated 17/2/2012. This is executed by the President of the ad hoc Committee, the 2 nd respondent, with the Secretary of Aluva Municipality. It is indicated that the Municipality had offered to pay the advance amount of Rs.5 lakhs on providing a bank guarantee. Since the bank guarantee could not be given by the ad hoc Committee, the matter was placed before this Court in DBP No.29/2009 and by order dated 10/2/2012, direction was issued to pay the amount to the President of the ad hoc Committee by virtue of which the 2 nd respondent received Rs.7.5 lakhs. It was also mentioned that if there is failure to repay the amount, the money could be recovered as a charge on the properties of the 2 nd respondent. One Sri.Khalid Mundapilly had sought for certain W.A.No. 294/2016 : 5: information from the Municipality under the Right to Information Act and answers had been provided as per letter dated 28/2/2013 wherein it is stated that the contract had been entered into with the ad hoc Committee on BOT basis. In the order dated 10/2/2012 in DBP No.29/2009, Division Bench of this Court observed that the work of putting up the temporary pedestrian bridge across the Periyar river at Aluva in connection with the Sivarathri festival shall be completed well in time by the Temple Advisory Committee and its President shall be personally responsible for carrying out that work and for repaying to the Devaswom Board and the Municipality, the amounts that will be advanced by those two institutions. The material available on record clearly indicates that the ad hoc Committee had no relationship with the Municipality. The 2 nd respondent as the President of the ad hoc Committee had entered into the contract and had received certain amount from the Municipality by giving security. It is therefore apparent that the work was done at the instance of the Municipality and funds were received from the Devaswom Board as well as the Municipality. This clearly amounts to entering into a contract with the Municipality. Unless the 2 nd respondent is able to establish that it comes under any of the exceptions as provided under Section 91(1)(f), the disqualification arises.
12. The Election Commission proceeded on the basis that since the work is done by the ad hoc Committee and she has only given guarantee as President of the ad hoc Committee, the disqualification does not arise. I do not think so. A Councillor of a Municipality is not entitled to enter into any contract with the Municipality. The ad hoc W.A.No. 294/2016 : 6: Committee had undertaken a contract from the Municipality. The 2 nd respondent admittedly is the President of the ad hoc Committee. They were entitled to collect a fee for usage of the pedestrian over bridge and they were entitled to make advertisements and get revenue out of it. It is from the amount collected that the advance amount is to be repaid back. This clearly amounts to a commercial transaction and merely for the reason that an office bearer will not gain anything from it or it is not intended for any gain will not justify the action. No Councillor is expected to enter into any contract with the Municipality. This work had been tendered earlier and had been awarded in favour of the ad hoc Committee. Being a commercial venture, the prohibition under Section 91(1)(f) clearly applies. The finding of the Commission that the construction of temporary pedestrian bridge is not considered as a work of Municipality is without any basis. It is the Municipality who had awarded the work to the ad hoc Committee and they had even paid advance. The construction was made on BOT basis and the ad hoc Committee was permitted to collect fee for a period of three years.
13. The next question is whether the 2nd respondent is entitled for any benefit in terms of Rule 3(iii) of the Rules, which reads as under;
"3. Removal of Disqualification of Candidates and Councillors- A person shall not be deemed to have any interest, for the purposes of clause (g) of sub-section (1) of section 90 or clause (f) of Section 91, in a subsisting contract made with or a work being done for the concerned Municipality by reason of only having share or interest in the following cases,- (iii) undertaking any contribution work in W.A.No. 294/2016 : 7: the Municipality for the benefit of the community, not as a contractor, but as a representative of the community of as sponsor."
14. A bare reading of the aforesaid provision does not indicate that the 2 nd respondent was entitled to any benefit under the above provision. It is neither a contribution work in the Municipality for the benefit of the community nor is it as a representative of the community or of as Councillor. The judgment in Somasekharan Nair v. Divakaran Pillai (2010 (2) KLT 1022) which has been relied upon by the Commission has no application to the facts of the present case. That was a case with reference to a contract with the local authority on behalf of a beneficiary committee. That is not the situation here. The ad hoc Committee is not the beneficiary committee in terms of the statutory provisions. It is an independent body and has ventured into a commercial contract in terms of agreement dated 31/1/2012 and admittedly the 2 nd respondent is the President of the said ad hoc Committee. It is however pointed out that the disqualification if any is co-terminus with the term of office of the Committee and since the period of Committee had already expired, no useful purpose will be served in agitating the issue.
15. But the fact remains that at the time when the petition was filed, 2 nd respondent was a Councillor and therefore, I am concerned with the validity of the order passed by the Election Commission. Having regard to the aforesaid findings, I am of the view that the order passed by the Election Commission is liable to be set aside. Accordingly, the writ petition is allowed. Ext.P3 is set aside and it is declared that the 2 nd respondent was disqualified W.A.No. 294/2016 : 8: from being a Councillor in terms of Section 91(1)(f) of the Act"
It is, thus, challenging the legality and correctness of the judgment of the learned Single Judge, the appeal is filed.
2. Brief material facts for the disposal of the appeal are as follows:
The first respondent herein filed a complaint before the Kerala State Election commission claiming to be a voter of ward No.8 of Aluva Municipality contending that the appellant herein, the elected Councillor of Aluva Municipality representing ward No.8 has become disqualified from holding the office of the Councillor of the Municipality representing Ward No.8 for having incurred disqualification under Section 91(1)(f) of Act, 1994. According to the first respondent, the appellant acquired interest in a subsisting contract made with the Aluva Municipality as is evident from Ext.P3 agreement dated 17.02.2012 executed by and between the appellant and the Aluva Municipality. According to the first respondent, consequent to the execution of the agreement, the appellant had acquired interest in the subsisting contract made with the Aluva Municipality, whereby a charge was created in the property of the appellant while offering the same as security for repayment of the amounts collected by her from the Municipality for construction of a temporary bridge across the river W.A.No. 294/2016 : 9: Periyar to facilitate the movement of the pedestrian during the Maha Shivaratri festival. Therefore, it is contented that the appellant became disqualified from holding the elected post of the Councillor.
3. The foundation of the case put forth by the appellant was that the Secretary of the Sreekrishna-swamy Temple Advisory Adhoc Committee, Aluva entered into a contract with the Secretary of the Aluva Municipality on 31.01.2012 for construction of the temporary bridge on build operate transfer basis, and subsequently, a further agreement was executed on 17.02.2012 between the appellant and the Secretary of the Aluva Municipality, whereby charge was created in the property of the appellant for repayment of the amounts advanced for the work by the Municipality related to the construction of the temporary bridge across the river Periyar in connection with Sivaratri festival in February, 2012. In the year 2012, there arose a situation where the contractors declined to undertake the work of construction of the temporary pedestrian bridge. Matters being so, according to the appellant, Municipality requested the Adhoc Committee of Sreekrishna-
swamy Temple to take over the construction of the foot over bridge for the Sivaratri season of February, 2012. Apparently, the issue gained the attention of a Division Bench of this Court considering Devaswom matters in DBP No.29 of 2009 and pursuant to the direction issued by W.A.No. 294/2016 : 10: the Division Bench in the above specified proceedings, the Adhoc Committee of the Sreekrishna-swamy Temple took over the construction of the foot over bridge and completed the same in time.
4. The appellant was the President of the Adhoc Committee of the aforesaid temple and in accordance with the directions issued by the Division Bench as per order dated 10.02.2012, she executed an agreement dated 17.02.2012 in favour of the Secretary of the Aluva Municipality, whereby it is stated that on 28.01.2012, the Aluva Municipal Council has accepted the offer made by the Adhoc Committee of the Sreekrishna-swamy Temple for the construction and maintenance of a temporary walkway based on Build Operate Transfer basis from Kottarakadavu till Manappuram for the devotees to cross the Periyar river during the Maha Shivaratri festival, that thereafter as per the agreement dated 31.01.2012 between the Secretary of the Adhoc Committee and the Secretary of the Municipality, it has been agreed that Rs.7.5 lakhs shall be given on offering appropriate bank guarantee. But, the Advisory Committee later informed the Municipality that it shall not be able to provide the guarantee as offered and therefore, the condition of guarantee by the bank shall be removed from the agreement. That thereafter the matter came up for consideration before the learned Devaswom Bench of this Court on 10.02.2012 in DBP No. 29/2009 and the Division Bench has ordered to W.A.No. 294/2016 : 11: pay the aforesaid amount to the President of the Temple Advisory Adhoc Committee and it was according to the direction issued so by this Court that the President of the Adhoc Committee i.e., the appellant has received the amount of Rs.7, 50,000/- through cheques bearing Nos. 018882 and 018883 dated 17.02.2012 from the Secretary of the Municipality on agreeing that the said amount shall be repaid on or before 29.02.2012. It was further undertaken in the said agreement that the said amount if not paid shall be recovered from the property offered by the appellant. In fact, the said agreement was preceded by an agreement dated 31.01.2012 executed by one N. Anil Kumar, Secretary of the Adhoc Committee of the Temple in favour of Sri. P. Vijayan, the Secretary of the Aluva Municipality. The terms and conditions of the said agreement for the construction of the temporary bridge across the river Periyar during the Maha Shivaratri period read thus:
"Conditions:
1. The temporary walk through consisting of 184 meter length and 20 ft breadth (10 ft each towards both sides) shall be constructed across the Periyar river from Kottarakkadavu to Manappuram.
2. The temporary walk through shall be constructed and maintained only during the years of 2012, 2013 and 2014 for the purpose of Shivarathri Festival events and trade fairs conducted by the Corporation during Shivaratri season. The construction of temporary walk through shall not be requested if any bridge is constructed during any of these years. W.A.No. 294/2016 : 12:
3. Ways shall be made available beneath the walk through for crossing the country boat.
4. The Corporation shall grant permission required for hte construction of walk through and the contractor shall timely submit the necessary documents required.
5. The contractor shall be responsible to make every security arrangements of the public who use the through at his own expenses including insuring the passengers of the walk through. A copy of the above mentioned document shall be submitted in advance.
6. The Corporation shall not be responsible for any accident occurred during the construction of the walk through and the Corporation shall not be entitled to pay any compensation with this regard. The contractor shall be wholly liable for the same.
7. The contractor shall facilitate necessary lighting facilities on the entrance, exit and along the walk through at his own cost.
8. The contractor shall collect fees from the passengers using the walk through as follows:
(1) Rs. 5 for one side, per person.
(2) Rs.10 for both sides, per person.
No fees shall be collected from children below 10 years of age
9. The temporary walk through and the materials used for its construction shall be removed every year after the festival season and it shall be resumed as earlier existed.
10.The contractor shall be liable to demolish the temporary walk through without any objection at any time upon the request of the corporation.
11. Advertisements shall be made on the walk through as per the required specifications and taxes shall be paid to the Corporation for the advertisements raised on the walk through.
12.The construction of the walk through shall be completed and made available for 5 days prior to the Shivaratri Festival every year. W.A.No. 294/2016 : 13:
13.Should inform the Corporation every year 10 days prior to the construction of the walk through and along with necessary documents.
14.The corporation and Travancore Dewasom Board shall allow Rs.7.5 lakh (Rs.15 lakhs in total) based on necessary guarantee by the bank. The Corporation shall give the said amount to the temple advisory committee upon making payment of a share by Dewasom Board at Corporation. The said amount shall be repaid to the Corporation by collecting the same from the fees for the usage of walk through.
15.IN WITNESS WHEREOF the parties herein have affixed their respective signatures to this deed on the 31 st January, 2018 first above written in the presence of the witnesses and hereby agreeing with the terms and conditions of this agreement.
signature signature
P. VIJAYAN N. ANIL KUMAR
MUNICIPAL SECRETARY Lekshmi Mandiram, Periyar Lane
ALUVA Aluva
(on behalf of Sri Krishna Swami
Temple Advisory Adhoc
Committee, Aluva)
WITNESSES:
1. Unni Kannan Nair C,
Perecat Panchayil (H),
Aluva -1.
2. P.K. Regi Kumar,
LDC, Municipal Office,
Aluva."
W.A.No. 294/2016 : 14:
5. The essence of the complaint filed by the first respondent before the State Election Commission is the said two agreements. The State Election Commission, after appreciating the oral and documentary evidence adduced by the first respondent herein and a document produced by the appellant, has dismissed the petition basically holding that the appellant has not entered into any contract in her personal capacity and she, as the President of the Temple Advisory Committee, has only given an undertaking offering her property as security for the repayment of the amounts due under the contract entered into between the Secretary of the Adhoc Committee of the Temple and the Aluva Municipality and that too, on the basis of the order of the Division Bench of this Court in DBP No. 29/2009 dated 10.02.2012. It was also found that no benefit was accrued to the appellant on the basis of the agreement executed by her on 31.01.2012 or on the basis of the undertaking given by the appellant as the President of the Adhoc Committee of the Temple for the benefit of the community and the general public gathered in lakhs for the Maha Shivaratri festival. Therefore, Section 91(1)(f) of Act, 1994 was not attracted against the appellant. That apart, it was found that even disqualification, if any, incurred is removed as provided by Rule 3(iii) of the Kerala Municipality (Removal of disqualification of Candidates and Councillors in certain Matters) Rules, 1995, hereinafter called Rules, W.A.No. 294/2016 : 15: 1995.
6. However, learned Single Judge reversed the findings of the State Election Commission holding that a Councillor of a Municipality is not entitled to enter into any contract with the Municipality and that the Adhoc Committee of the Sreekrishna-swamy Temple in which the appellant was the President entered into a contract with the Aluva Municipality, that the Adhoc Committee was entitled to collect fee for usage of pedestrian overbridge and they were entitled to make advertisements and get revenue out of it and it was from the amounts collected that the advance amount was to be repaid. Accordingly, it was found that the same amounts to a commercial transaction and merely for the reason that a Councillor will not gain anything from it or it is not intended for any gain, the action cannot be justified. It was further found that a Councillor is not expected to enter into any contract with the Municipality. Therefore, being a commercial venture, the prohibition under Section 91(1)(f) clearly applies and accordingly the finding of the State Election Commission was interfered with, holding that the finding of the commission that the construction of temporary pedestrian bridge is not a work of the Municipality is without any basis and that it was the Municipality which had awarded the work to the Adhoc Committee and they had even paid the W.A.No. 294/2016 : 16: advance. It was further found that the appellant was not entitled to get any benefit of Rule 3(iii)of Rules, 1995, since the work was not a contribution work in the Municipality for the benefit of the community nor was it as a representative of the community or of as Councillor. Accordingly, it was found that the appellant was disqualified from being a Councillor in terms of Section 91(1)(f) of Act, 1994.
7. The question emerges for consideration is whether any manner of interference is warranted to the judgment of the learned Single Judge.
8. We have heard learned Senior Counsel Sri. S. Sreekumar for the appellant, assisted by Adv. Manoj Ramaswamy, Sri. T.R. Rajan for the first respondent, Sri. Murali Purushothaman for the State Election Commission and Sri. K.S. Bharathan, who was impleaded as the additional 3rd respondent in the appeal, and perused the pleadings and materials on record.
9. The paramount contetiton advanced by learned counsel for the appellant was that the appellant offered her property as security for receiving advance from the Municipality on a larger public interest, to provide basic amenities for the devotees who gather for the Sivaratri festival, that in fact, the appellant had only made an W.A.No. 294/2016 : 17: undertaking for and on behalf of the Adhoc Committee of the temple, whereby she offered a property as security for repayment of the amounts advanced by the Municipality to the Adhoc Committee for the construction of a temporary pedestrian bridge across Periyar river in connection with the Sivaratri festival, and that cannot be construed as a contract between the Municipality and the appellant, whereby no interest was created in any subsisting contract by the appellant as provided under Section 91(1)(f) of Act, 1994. It was further submitted that when a person enters into a contract with the local authority on behalf of a committee, and has no personal interest in the matter, he suffers no disqualification due to any liability of the committee representing a community. That apart, it was pointed out that since the construction of the pedestrian bridge was carried out for the benefit of the community, the appellant was entitled to get the benefit of Rule 3(iii) of Rules, 1995. That apart, it was strenuously argued that the agreement dated 17.02.2012 was executed by the appellant on the basis of the direction issued by the Division Bench of this Court in DBP No. 29 of 2009 dated 10.02.2012 to sort out the stalemate occurred for want of contractors to construct the foot over bridge. The sum and substance of the essential contentions advanced was that since no agreement was executed by the appellant in a commercial contract, no manner of disqualification can be attributed against the W.A.No. 294/2016 : 18: appellant in contemplation of the Section 91(1)(f) of the Act, 1994. Apart from the said argument, it was also submitted that the Adhoc Committee of the Temple has suffered huge loss in the matter of construction of the temporary bridge.
10. On the other hand, learned counsel for the first respondent submitted that being the President of the Adhoc Committee of the Temple, the appellant could be roped in, in the agreement executed by the Secretary of the Adhoc Committee of the Temple dated 31.01.2012, also which is a commercial contract in view of the conditions contained thereunder. It was also submitted that agreements dated 31.01.2012 and 17.02.2012 are to be read together in order to arrive at proper conclusions in order to identify the disqualification suffered by the appellant.
111. We have appreciated the rival submissions made across the Bar. We are conscious of the fact that this Writ Appeal is a continuation from the proceedings before the Kerala State Election Commission in O.P.No. 47 of 2012. On a reading of the petition filed before the State Election Commission, the specific allegation made by the first respondent is that by virtue of the agreement dated 17.02.2012, which was produced before the Commission and marked as Ext.P3, the appellant has acquired interest in the subsisting contract W.A.No. 294/2016 : 19: made with the Aluva Municipality. The first respondent did not have a case that by virtue of the agreement dated 31.01.2012, which was produced and marked as Ext.P2 before the Commission, was a subject matter for attributing disqualification against the appellant. The entire allegations made against the appellant in the petition was that consequent to the agreement dated 17.02.2012, the appellant was disqualified from holding the post of Councillor in the Aluva Municipality representing Ward No.8. That apart, learned counsel for the State Election Commission has produced before us the evidence adduced by the first respondent, from where also it is clear that no allegations are made against the appellant on the basis of the agreement dated 31.01.2012. Mere marking of the said agreement as Ext. P2 would not suffice the situation to infer that the appellant had made any advantage out of that agreement executed by the Secretary of the Adhoc Committee of the Temple in favour of the Secretary of the Aluva Municipality. There is also no evidence on record to arrive at a conclusion that the appellant has secured any benefit from and out of the agreement dated 31-01-2012.
12. That apart, it is an admitted fact that the agreement dated 17.02.2012 was executed by the appellant in favour of the Municipality on account of the directions issued by the Division Bench in DBP No. W.A.No. 294/2016 : 20: 29 of 2009 dated 10.02.2012 which was produced and marked as Ext.R1 before the State Election Commission. On a reading of the said order produced as Ext. R2(d) along with the counter filed by the appellant in the writ petition, we are satisfied that it was on account of the directions issued by the Division Bench of this Court alone the appellant had to execute the agreement dated 17.02.2012 in favour of Aluva Municipality. Therefore, taking into account the said essence of the issue and considering it with the intention behind Section 91(1)(f) which is extracted in the impugned Judgment quoted above, it is clear that the appellant has not acquired any interest in any subsisting contract made with or work being done with the Local Self Government Institution. That apart, Rule 3(iii) of Rules, 1995 substantially protects the action of the appellant on account of the agreement dated 17.02.2012, since according to us, the appellant was never a person deemed to have any interest for the purposes of clause (f) of Section 91 (1) in a subsisting contract made with or a work being done for the concerned Municipality, since the undertaking offered by the appellant dated 17.02.2012 was a contributory work in the Municipality for the benefit of the community, not as a contractor, but as a representative of the Community by offering her property as a security to receive advance amount of Rs. 7.5 lakhs from the Municipality. That apart, on going through the aforesaid agreement, dated 17-02-2012 we are of W.A.No. 294/2016 : 21: the clear opinion that the said agreement contain not even a word or any stray sentence to connect her with the agreement dated 31.01.2012 executed by the Secretary of the Adhoc Committee with the Aluva Municipality. Even though learned counsel for the first respondent forcefully submitted that the President of an Adhoc Committee is also liable for the debt incurred by the committee, we are unable to agree to the said contention for the basic reason that there was no such pleading made before the State Election Commission on the basis of the agreement dated 31.01.2012 .
13. Further such a contention was advanced based on the agreement dated 17.02.2012, under which, as we have pointed out earlier, the appellant has only undertaken that the properties belonging to her would be liable for the advance amount made by the Municipality to the Adhoc Committee, which according to us, was a consequence of the order passed by the Division Bench of this Court in DBP No. 29 of 2009 dated 10.02.2012. That said, going through the judgment of the learned Single Judge, we are of the view that the learned Single Judge did not have the occasion to consider the issues, taking into account the pleadings put forth by the first respondent before the State Election Commission. We also have no hesitation to say that the first respondent was not at liberty to improve his case in W.A.No. 294/2016 : 22: the writ petition by making a material departure from the pleadings made in the petition before the State Election Commission by substituting his contentions founded on the agreement dated 31-01- 2012. Which thus means, there is no foundation for the arguments based on the said agreement and it could be treated only as an afterthought having found that the case primarily developed was not appealing to the primary fact finding body. Thus, taking into account the entire conspectus of the issues, we have no hesitation to hold that the learned Single Judge was not right in reversing the order of the State Election Commission. Needless to say, the appellant succeeds in the appeal and accordingly, the judgment of the learned Single Judge is set aside and the order of the State Election Commission in O.P. No. 47 of 2013 dated 01.03.2014 is restored.
14. Learned counsel for the third respondent, at that point of time submitted that though he has filed O.P (Election Petition) No. 15 of 2015 before the Munsiff's Court, Aluva for setting aside the election of the appellant on the ground of the appellant being a debtor to the Aluva Municipality, due to the pendency of this appeal, the proceeding was stayed by the Munsiff's Court. Anyhow, we are of the opinion that the said proceeding did not have any bearing to the issue at hand and therefore, we have no reason to think that merely because the appeal W.A.No. 294/2016 : 23: is allowed, the Munsiff will not proceed with the Election Petition.
Resultantly, the Writ Appeal is allowed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv