Kerala High Court
Sulfikar vs The Kerala State Election Commission on 3 July, 2024
W. P. (C) No. 18248 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
WP(C) NO. 18248 OF 2024
PETITIONER:
SULFIKAR, AGED 36 YEARS,
S/O.SUBAIR, VALIYAPARAMBIL HOUSE, WARD NO. XII,
PUNNAPRA SOUTH PANCHAYAT, ALAPPUZHA DISTRICT,
PIN - 688004.
BY ADVS.M/S.S.SHANAVAS KHAN, S.INDU &
KALA G.NAMBIAR
RESPONDENTS:
1 THE KERALA STATE ELECTION COMMISSION,
VIKAS BHAVAN, NEAR LEGISLATIVE ASSEMBLY,
THIRUVANANTHAPURAM,PIN - 695033, REPRESENTED BY
ITS SECRETARY.
2 THE PUNNAPRA SOUTH GRAMA PANCHAYAT,
PUNNAPRA P.O, ALAPPUZHA, PIN - 688004,
REPRESENTED BY ITS SECRETARY.
3 THE SECRETARY,
PUNNAPRA SOUTH GRAMA PANCHAYAT, PUNNAPRA P.O.,
ALAPPUZHA, PIN - 688004.
SRI. DEEPU LAL MOHAN, SC FOR R1
SRI. R. RAJPRADEEP, SC FOR R2 & R3
ADVS. M/S. BRIJESH MOHAN & SREEDEVI S.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 21.6.2024, THE COURT ON 03.07.2024 DELIVERED THE
FOLLOWING:
W. P. (C) No. 18248 of 2024
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(C. R.)
MOHAMMED NIAS C. P., J
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W. P. (C) No. 18248 of 2024
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Dated this the 3rd day of July, 2024
JUDGMENT
The petitioner challenges the order passed by the 1st respondent Kerala State Election Commission that dismissed O.P.No.15/2022 filed by him under Section 36(1) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act') challenging his disqualification imposed under Section 35(1) and also against the refusal to restore his membership under Section 37(1) of the Act.
2. The petitioner is an elected member of Ward No.XII of the 2nd respondent Grama Panchayat. He could not attend the meetings of the Panchayat from 01.01.2022. He states that he had filed a leave application, as per a letter dated 04.02.2022, W. P. (C) No. 18248 of 2024 ..3..
requesting three months' leave from that date on medical grounds. Ext.P1 is the letter sent through registered post with acknowledgment due. The petitioner submits that though the Panchayat had received the same on 7.12.2022, no reply was given to him. He was involved in Crime No.897/2021 of Alappuzha South police station and Crime Nos.1379/2021 and 20/2022 of Punnapra police station and was arrested on 02.03.2022. While undergoing judicial custody, he moved CMP No.862/2022 before the Judicial First Class Magistrate's Court-I, Alappuzha for allowing parole to him to attend the meeting scheduled on 07.04.2022, which was however, rejected by Ext.P3 order. In the meantime, Ext.P1 leave application was considered by the Panchayat committee, after it was adjourned twice in the meeting held on 07.03.2022, and decided to reject the said application. The petitioner submits that though his leave application was rejected, no communication was issued to him and he came to know about the same only when he received a W. P. (C) No. 18248 of 2024 ..4..
notice under Section 37(2) of the Act informing him that he has been disqualified as a member of the Panchayat and asking him to file objections, if any.
3. The petitioner had also submitted a request to the 3rd respondent to invoke Section 37(2) of the Act for restoring his membership which was cancelled as per Section 35(1)(k) of the Act. The said application is marked as Ext.P6. As per the resolution dated 30.05.2022, the 2nd respondent decided not to restore the membership of the Panchayat and the said fact was intimated to the petitioner by way of a letter, without serving the copy of the resolution dated 07.06.2022, marked as Ext.P9. The petitioner submits that he was granted bail and released on 10.6.2022 and after obtaining bail, filed an application on 13.6.2022 to get a copy of the resolution dated 30.05.2022 rejecting his application for restoration of membership. Ext P10 is a copy of the resolution. The petitioner had filed O.P.No.15/2022 before the 1st respondent challenging Exts.P4, P8 and P10. When W. P. (C) No. 18248 of 2024 ..5..
no orders were passed on the interim application for stay, the petitioner filed W.P(C) No.30435/2022 before this Court which directed the interim application to be considered on 11.10.2022, pursuant to the same, the 1st respondent passed orders dated 11.10.2022 in I.A.No. 55/2022. in O.P. No.15/2022 allowing the petitioner to continue as a member of the 1 st respondent Panchayat till a decision is taken by it. Later, the matter was heard and by Ext.P14 order dated 16.04.2024, the 1 st respondent rejected the original petition, which is impugned in this writ petition.
4. The learned counsel for the petitioner submits that the order disqualifying him is illegal as he had performed his part by submitting a leave application and the consideration of the same was adjourned twice before it was rejected and thus it cannot be said that his non-participation in between was willful. It is also submitted that while he was in judicial custody, he could not attend the meeting as it was beyond his control. The learned W. P. (C) No. 18248 of 2024 ..6..
counsel further submits that it was only due to political intentions that the leave application was rejected. It is also his argument that the disqualification arises only when absence is without the permission of the Panchayat concerned for its meeting for three consecutive months, and the period when he was in judicial custody has to be excluded as he could not have participated in the meeting. At any rate, it is submitted that on the facts of the case, his application for restoration of membership ought to have been allowed, which was duly filed. He also submits that the non-serving of the resolution of the Panchayat is wrong and the Panchayat was bound to consider the reasons for not attending the meeting before disqualifying his membership. The petitioner also contends that since the order under Section 37 was a consequential action under Section 35, an appeal would lie before the State Election Commission and the finding in the order that against the order declining to restore his membership, no proceeding will lie against the State Election W. P. (C) No. 18248 of 2024 ..7..
Commission is completely wrong.
5. The learned counsel for the petitioner, relies on the judgment of this Court in V. Anil Kumar and another v. The Kerala State Election Commission and others [2007 (2) KHC 273] and also, the judgment of this Court in Krishna Kumar C. v. Kerala State Election Commission [2010 (3) KHC 344]. He also places considerable reliance on the judgment passed by this Court in Rajan v. Thomas [1964 KHC 257] to contend that during the period when he was under detention, it cannot be treated as absenting himself and therefore, the said period should be excluded. It is also his argument that in the instant case, he was not absent for three months and therefore disqualification under Section 35(k) will not apply.
6. The learned counsel for the State Election Commission, relying on the judgment passed by this Court in Rajan v. Kerala State Election Commission [1999 KHC 643], argues that he could not have challenged the refusal to restore the membership before the W. P. (C) No. 18248 of 2024 ..8..
Kerala State Election Commission and should have approached the Government.
7. The learned counsel appearing for the Panchayat, apart from adopting the arguments of the learned counsel for the Commission, submits that the petitioner was absent in the meetings held on 01.01.2022, 13.01.2022, 21.01.2022, 31.01.2022, 07.02.2022, 16.02.2022, 22.02.2022, 26.02.2022 and 07.03.2022 that led to his disqualification. Though it is admitted that the Panchayat received the letter dated 04.02.2022 on 07.02.2022, requesting three months' leave, as the signature in the said letter differed from the signature available in the office of the Panchayat, the Panchayat had issued a letter to the petitioner to be present before the Secretary with supporting documents to consider his application. The learned counsel submits that there was no response to the said letter and meanwhile, the petitioner was arrested and placed under judicial custody. He argues that the condition in Section 35(k) squarely applies and the order of W. P. (C) No. 18248 of 2024 ..9..
the Election Commission is only to be sustained.
8. Heard Sri. Shanavas Khan learned counsel for the petitioner, Sri. Deepu Lal Mohan, the learned Standing Counsel for the State Election Commission and Sri. R. Rajpradeep, the learned Standing Counsel for the Panchayat.
9. The basic question in the above Election Petition is whether the petitioner has incurred a disqualification within the meaning of Section 35(1)(k) of the Kerala Panchayat Raj Act, 1994, which reads as follows:
"35(1)(k) absents himself without the permission of the Panchayat concerned from its meeting or the meeting of the Standing Committee thereof for a period of three consecutive months reckoned from the date of commencement of his term of office or of the last meeting that he attended, or of the restoration to office as member under sub-section (1) of Section 37, as the case may be, or if within the said period, only in less than three meetings of the Panchayat or of the Standing Committee as the case may be, have been held, absents himself from three consecutive meetings held after the said date:"
10. The undisputed facts are that the petitioner, a ward member, attended the last meeting on 18.12.2021 and was absent in the subsequent meetings held on 1.1.2022, 13.1.2022, 21.1.2022 W. P. (C) No. 18248 of 2024 ..10..
and 31.1.2022 (four meetings). He had submitted Ext.P1 leave application on 4.2.2022 which was received by the Panchayat on 7.2.2022. The petitioner submits that there were four meetings after the receipt of Ext.P1 leave application, namely, on 7.2.2022, 16.2.2022, 22.2.2022 and 26.2.2022. Orders were passed on his leave application rejecting the same only on 7.3.2022. In the meanwhile, on 2.3.2022, the petitioner was arrested in connection with a crime. While he was undergoing judicial custody, he had sought parole, for attending the meeting scheduled on 7.4.2022, before the Magistrate Court concerned which was rejected by Ext.P3 order on 6.4.2022. Ultimately, the petitioner was granted bail on 10.6.2022.
11. The learned counsel for the petitioner argues that the wording of the Section extracted above clearly shows that the petitioner should absent himself without the permission of the Panchayat concerned from its meeting or the meeting of the Standing Committee thereto for three consecutive W. P. (C) No. 18248 of 2024 ..11..
months (emphasis supplied) reckoned from the date of commencement of his term of office or of the last meeting that he attended, or of the restoration to office as a member under sub- section(1) of Section 37, as the case may be, or if within the said period, only in less than three meetings of the Panchayat or of the Standing Committee as the case may be, have been held, absents himself from three consecutive meetings held after the said date. In the instant case, as the petitioner's application for restoration was rejected, the question of whether he absented himself from three consecutive meetings after the said dates is irrelevant and the only issue to be decided is whether the petitioner has absented himself without the permission of the Panchayat concerned from its meeting for three consecutive months reckoned from the date of the last meeting. The last meeting the petitioner attended was 18.12.2021. The learned counsel for the petitioner contends that, since he had filed a leave application on 4.2.2022 and it was rejected only on 7.3.2022, for W. P. (C) No. 18248 of 2024 ..12..
the meetings that were held between those days, the petitioner cannot be considered to be absenting himself without permission, as he had applied for leave. This contention cannot be accepted, as applying for leave does not presuppose it being granted, as an application for leave can either be allowed or rejected. The contention of the petitioner in this regard is only to be rejected and I do so.
12. The second contention of the petitioner is that he was arrested on 2.3.2022 and therefore, he could not have attended the meeting as it was beyond his control and for that, he made an attempt to attend the meeting that was scheduled on 7.4.2022 by filing an application before the Magistrate Court concerned which was rejected as per Ext.P3 order dated 6.4.2022. It is therefore his submission that the petitioner did make an effort to attend the meeting and therefore, cannot be treated as wilfully absenting himself.
13. This Court, in the decision Rajan v. Thomas reported in W. P. (C) No. 18248 of 2024 ..13..
1964 KHC 257 construing a provision under Section 63(1) of the Kerala Municipalities Act, 1960, which also contained a provision "absents himself without the permission of the council" held that, during the time the respondent therein was under detention in the Central Jail, he cannot be said to have absented himself from the meetings of the Council as the expression "absents himself" has to be construed as voluntarily or deliberately absented himself without leave for the period mentioned. It was further held, relying on the judgments Be London and Northern Bank Mack's Claim [(1900) Weekly Notes 114] and Be London and Northern Bank, Mc Connel's Claim [1901 (1) Ch. 728], that the expression " absent himself" means something more than the expression "is absent" and that there is a difference between the act of absenting oneself which is purely voluntary and the fact of being absent which can be either voluntary or involuntary. The words "absented himself" show that the member's absence should be of his own volition, namely, carelessness, negligence or W. P. (C) No. 18248 of 2024 ..14..
lack of interest in the work, etc., and not the absence forced upon him by some law, in which case it cannot be termed as absented himself.
14. Even otherwise, on the Doctrine of Impossibility which is based on the doctrines "lex non cogit ad impossibilia" (the law does not comple a man to do what he cannot possibly perform), "impossibilium nulla obligatio est" (the law does not expect a party to do the impossible) and "impotentia excusat legem" in the qualified sense that there is a necessary or invincible disability to perform the mandatory part of the law or to forbear the prohibitory. These maxims are akin to the maxim of Roman Law Nemo Tenetur ad Impossibilia (no one is bound to do an impossibility) which is derived from common sense and natural equity and has been adopted and applied in law from time immemorial. Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested W. P. (C) No. 18248 of 2024 ..15..
had no control, like an act of God, the circumstances will be taken as a valid excuse. The above maxims are founded upon justice and good sense and serve as a safe and certain guide for the administration of law. The law itself and its administration are understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt the general exception in consideration of a particular case. Even in the case of the performance of formalities prescribed by a statute, the impossibility by circumstances over which the persons concerned have no control has to be taken as a valid excuse. Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him. It has to be treated at par with those circumstances over which the person had no control, like the act of God. In the instant case, the petitioner did make an unsuccessful attempt, even when he was in judicial custody to attend the meeting.
W. P. (C) No. 18248 of 2024
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15. Accordingly, the period between 2.3.2022 (when the petitioner was arrested) and 10.6.2022 (when the petitioner was released on bail) cannot be treated as a voluntary act and since his absence was involuntary, it should be held that the said period has to be excluded from computing the number of meetings he absented. As stated above, if three months are counted from 18.12.2021 (which is the last date of the meeting) would expire on 17.3.2022. It is seen that meetings were held between 1.1.2022 to 26.2.2022, which period cannot be reckoned as a consecutive three-month period, as stipulated in Section 35(1)(k). The number of meetings is relevant only for the second limb of Section 35(1)(k) which deals with the restoration of membership post-disqualification. Otherwise, the relevant period is the consecutive three months. Maybe, more than three meetings would have taken place in a month, but the relevant question is whether he was absent for three consecutive months. In the instant case, the order passed under Section 35(1)(k), and W. P. (C) No. 18248 of 2024 ..17..
intimated through communication dated 27.4.2022 did not consider whether the petitioner was absent for three consecutive months which was the requirement under the provision in question and not whether the petitioner was absent for three consecutive meetings which is the case on restoration of a membership.
16. The reason for the disqualification of the petitioner is that he failed to attend the consecutive meetings of the panchayat committee held on 1.1.2022, 13.1.2022, 21.1.2022, 31.1.2022, 7.2.2022, 16.2.2022, 22.2.2022, 26.2.2022 & 7.3.2022 and therefore, as stated above, for the meetings that took place between 2.3.2022 and 10.6.2022, the said period cannot be counted. Even if all the above dates are reckoned, meetings have happened in January and February which can only be treated as two months and not three consecutive months mentioned in Section 35(1)(k).
17. The Act of the Panchayat disqualifying the petitioner W. P. (C) No. 18248 of 2024 ..18..
under Section 35(1)(k) is therefore illegal and is liable to be interfered with. Given my finding that the act of disqualification itself was wrong, the orders passed under Section 37 or the maintainability of the petition before the State Election Commission are not relevant for consideration in this case, as the primary order that led to follow-up orders is itself held to be illegal. This aspect is not even considered in Ext.P14.
18. For all the reasons stated above, the order of disqualification passed by the Panchayat is against the Act and liable to be quashed. It is declared that the disqualification of the petitioner by the second and third respondents, under Section 35(1)(k), is illegal and the petitioner is entitled to continue as a member of the Panchayat. Ext.P14 is set aside.
The Writ Petition is allowed.
Sd/-
MOHAMMED NIAS C. P. , JUDGE OKB MMG W. P. (C) No. 18248 of 2024 ..19..
APPENDIX OF WP(C).NO.18248/2024 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER DATED
04/02/2022 OF THE PETITIONER ISSUED TO
THE 3RDRESPONDENT
EXHIBIT P2 TRUE COPY OF THE POSTAL RECEIPT DATED
04/02/2022 EVIDENCING THE DESPATCH OF
EXT. P1
EXHIBIT P3 TRUE COPY OF THE ORDER DATED
06/04/2022 IN CMP NO. 862/2022 OF THE
HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT-I ALAPPUZHA
EXHIBIT P4 TRUE COPY OF THE NOTICE NO. A6/850/22
DATED 27/04/2022 ISSUED BY THE 3RD
RESPONDENT
EXHIBIT P5 TRUE COPY OF THE REPLY DATED
01/05/2022 SUBMITTED BY PETITIONER
BEFORE 3RD RESPONDENT THROUGH
SUPERINTENDENT, SPECIAL SUB JAIL,
MAVELIKARA
EXHIBIT P6 TRUE COPY OF THE APPLICATION BY
PETITIONER FOR RESTORATION OF
MEMBERSHIP ALONG WITH COVERING LETTER
DATED 11/05/2022 OF THE
SUPERINTENDENT, SPECIAL SUB JAIL,
MAVELIKARA
EXHIBIT P7 TRUE COPY OF THE APPLICATION DATED NIL
SUBMITTED BY PETITIONER'S WIFE ON HIS
BEHALF UNDER RIGHT TO INFORMATION ACT
EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED
30/05/2022 ISSUED BY 3RD RESPONDENT
W. P. (C) No. 18248 of 2024
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EXHIBIT P9 TRUE COPY OF THE LETTER NO.
A6/850/2022 DATED 07/06/2022 OF THE
3RD RESPONDENT
EXHIBIT P10 TRUE COPY OF THE RESOLUTION NO. 1(1)
DATED 30/05/2022 OF THE 2ND RESPONDENT
EXHIBIT P11 TRUE COPY OF THE ORDER DATED
26/09/2022 IN W.P. (C) 30435/2022 OF
THIS HON'BLE COURT
EXHIBIT P12 TRUE COPY OF THE ORDER DATED
11/10/2022 IN I.A. NO. 55 OF 2022 IN
O.P NO. 15/2022 OF THE 1ST RESPONDENT
EXHIBIT P13 TRUE COPY OF THE COUNTER AFFIDAVIT
DATED 23/08/2022 FILED BY RESPONDENTS
2 AND 3
EXHIBIT P14 TRUE COPY OF THE ORDER DATED
16/04/2024 IN O.P. NO. 15/2022 OF THE
1ST RESPONDENT