Kerala High Court
V.Anil Kumar vs The Kerala State Election Commission on 26 March, 2007
Bench: K.S.Radhakrishnan, M.N.Krishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 459 of 2007()
1. V.ANIL KUMAR, S/O. RAGHAVAN NAIR,
... Petitioner
2. K. GANGADHARAN, S/O.KANARAKUTTY NAIR,
Vs
1. THE KERALA STATE ELECTION COMMISSION,
... Respondent
2. THE KUNNAMANGALAM GRAMA PANCHAYAT,
3. O. USSAIN, S/O. MOOSA,
4. KHALID K.P., S/O. MOOSA,
For Petitioner :SRI.K.RAMAKUMAR
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble the Acting Chief Justice MR.K.S.RADHAKRISHNAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :26/03/2007
O R D E R
K.S. RADHAKRISHNAN, AG. C.J. & M.N.KRISHNAN, J.
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WA. No. 459 of 2007
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Dated this the day of March, 2007
J U D G M E N T
Radhakrishnan, Ag. C.J.
Question that is posed for consideration in this case is whether a petition filed before the State Election Commission by a voter of a Panchayat under section 36 of the Kerala Panchayat Raj Act, 1994 is maintainable for a decision as to whether a member has become disqualified under section 35(k) when a member of the Panchayat already stands disqualified and his disqualification has attained finality as far as the member is concerned.
2. Third respondent by name Ussain was an elected member of Kunnamangalam Grama Panchayat. He was elected as member from Ward No.6 of the Panchayat. On account of his continuous absence in the Welfare Standing Committee Meeting of the Panchayat of which he was a member for four times continuously, he entailed a disqualification. Secretary of the Panchayat accordingly issued a notice under Section 37(2) of the Act informing him of his entailment of disqualification under section 35(k) of the Act vide Ext.P1 notice dated 2-6-2006. Third respondent Ussain then filed a petition before the Panchayat under section 37(2) of the Act seeking restoration of his membership. Committee of the Panchayat dismissed the same vide Ext.P3 decision. Third respodnent had also filed WA. 459/07 -:2:- a petition under section 36(1) of the Act before the Election Commission which was numbered as OP. No. 23 of 2006, which was later dismissed as not pressed. Therefore so far as third respondent is concerned, the order of disqualification has attained finality. Question that has come up for consideration in this case is whether a voter can invoke section 36(1) of the Kerala Panchayat Raj Act calling upon the State Election Commission to decide as to whether third respondent has entailed disqualification under section 35(k) of the Act, especially, when order of disqualification as far as third respondent is concerned, has attained finality. Learned single Judge answered the question placing reliance on a bench decision of this court in Rajan v. Kerala State Election Commission, 1999 (3) KLT 601 and took the view that section 36 of the Act has conferred the right on any other member of the Panchayat and on a voter of the Panchayat to move the Election Commission, 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. Learned single Judge therefore held that the election petition filed by 4th respondent voter before the Election Commission is maintainable. Aggrieved by the same this appeal has been filed.
3. Counsel appearing for the appellants submitted that the learned single Judge committed an error in holding that the petition filed by 4th respondent before the Election Commission is maintainable under section 36(1) of the Panchayat Raj Act. Counsel submitted that third respondent WA. 459/07 -:3:- has already entailed disqualification and the order of disqualification has become final. Counsel submitted that the petition preferred by the 3rd respondent for restoration of his membership under section 37(2) of the Act was dismissed by the Panchayat Committee and also the application preferred by him under section 36(1) of the Act before the Election Commission was also dismissed as not pressed. Counsel therefore submitted that since the order of disqualification was attained finality, the voter cannot invoke subsection (1) of section 36 of the Panchayat Raj Act for declaration that third respondent has not entailed disqualification. Sri.V.G.Arun, counsel appearing for 4th respondent tried to sustain the order of the learned single Judge and reiterated his contentions. We are afraid that the learned single Judge has not properly appreciated the scope of section 36 of the Kerala Panchayat Raj Act. We may extract the said provision for easy reference:
"36. Determination of subsequent disqualification of a member:-- (1) Whenever a question arises as to whether a member has become disqualified under Section 30 or Section 35 except clause (n) thereof after having been elected as a member, any member of the panchayat concerned or any other person entitled to vote at the election in which the member was elected, may file a petition before the State Election Commission, for decision.
Provided that, the Secretary or the Officer authorised by the Government in this behalf may refer such a question to the State Election Commission for decisions.
(2) The State Election Commission, after making such enquiry as it considers necessary in the petition referred to in or the reference made thereunder in sub-section (1) whether so however that the State Election Commission may pass an interim order as to whether a member may continue in office or not till a decision is taken on the WA. 459/07 -:4:- petition or the matter involved in the reference. (3) A petition or reference referred to in sub-section (1) shall be disposed of in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when trying a suit."
Election Commission was called upon to decide the question as to whether a member has become disqualified under section 30 or section 35 (k) only when a question arises as to whether he has become disqualified or not. Once that question has attained a finality in the sense that question does not arise the question of invoking section 37(1) by any member of the Panchayat or any other person entitled to vote at the election in which the member was elected does not arise. Any member of the Panchayat or any other person entitled to vote at the election in which the member was elected can file a petition before the Election Commission for a decision under section 37(1) whenever a question arises as to whether a member has become disqualified under section 30 or section 35 except clause (n). The proviso to section 35(1) may also be noted which says that the Secretary or the Officer authorised by the Government in that behalf may refer such a question to the State Election Commission for decisions. Section 35 therefore confers a power on the State Election Commission to decide that question on a reference made by the Secretary or Officer authorised by the Government in that behalf or by any member of the Panchayat concerned or any other person entitled to vote at the election in which the member was elected. Section 35 of the Kerala Panchayat Raj WA. 459/07 -:5:- Act, 1994 deals with disqualification of members which says that subject to the provisions of Section 36 or Section 102, a member shall cease to hold office as such if he 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 at member under subsection (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. Section 37 deals with restoration of membership which we extract hereunder for easy reference.
"37. Restoraton of membership.-- (1) Where a person ceases to be a member of a Panchayat at any level under Section 31 or clause (a) of Section 35, he shall be restored to office for such portion of the period for which he was elected as may remain unexpired at the date of such restoration, if and when the sentence is annulled on appeal or revision or the disqualification caused by the sentence is removed; and any person elected to fill the vacancy in the interim shall, on such restoration, vacate office.
(2) Where a person ceases to be member under clause (k) of Section 35 the Secretary of the Panchayat concerned shall at once intimate the fact in writing to such person and report the same at the next meeting of the Panchayat. If such person applies for restoration to the Panchayat on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the Panchayat may at the meeting next after the receipt of such application restore him to his office of member:
Provided that a member shall not be restored more than twice during his term of office."WA. 459/07 -:6:-
Sub-section (2) of section 37 says that where a person ceases to be member under clause (k) of Section 35 the Secretary of the Panchayat concerned shall intimate the fact in writing to such person and report the same at the next meeting of the Panchayat and if such person applies for restoration to the Panchayat on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the Panchayat may at the meeting next after the receipt of such application restore him to his office of member provided that a member shall not be restored more than twice during his term of office. We are of the view, when a question arises as to whether a member has become disqualified under section 35
(k) he may also invoke section 36 of the Act and seek a decision from the Election Commission, so also, such a person can invoke section 37(1). A person ceases to be a member under clause (k) of section 35 can also seek restoration of his membership by preferring an application under sub- section (2) of section 37 before the Panchayat. That does not mean that he cannot seek a declaration under section 37(1) of the Act. There is no specific statutory bar against a person entailing disqualification under section 35(k) to move an application under section 36 before the Election Commission. We are of the view, the mere fact that he had made application for restoration under subsection (2) of Section 37 does not mean that he cannot invoke subsection (1) of section 36. Even if the Panchayat Committee rejected his application under sub-section (1) of section 37 remedy is still open to such person to invoke section 37 (2) as WA. 459/07 -:7:- well. We disagree with the reasoning in Rajan's case (supra) which says that remedies available under sections 36 and 37 (2) are inconsistent remedies. We find no reason to refer the matter to larger bench since in the instant case petition was moved under section 37(1) of the Act not by a person who entailed disqualification but by a voter. So far as a voter is concerned, in our view, once the member has already entailed disqualification and that order has attained finality no question arises as to whether he has become disqualified or not so as to enable a voter to invoke sub-section (1) of section 36 of the Kerala Panchayat Raj Act. We hold so. In view of the above mentioned declaration, we are of the view, OP. No. 42 of 2006 preferred by the 4th respondent before the State Election Commission is not maintainable. We therefore quash Ext.P10 order and hold that Election Commission has no jurisdiction to entertain such a petition. Appeal is therefore allowed and the judgment of the learned single Judge is set aside.
K.S. RADHAKRISHNAN, (Ag. Chief Justice) M.N.KRISHNAN, JUDGE ksv/