IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 WP(C).No. 5099 of 2010(J) ------------------------- PETITIONER(S): --------------- K.M.MAHINKUTTY, S/O.K.S.MUHAMMADALI, KAROTHUKUDY HOUSE,KANDANTHARA, ALLAPRA P.O., VENGOLA VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.SIRAJ KAROLY RESPONDENT(S): --------------- 1. THE KERALA STATE ELECTION COMMISSION, REP.BY ITS SECRETARY, ELECTION COMMISSION OFFICE, THIRUVANANTHAPURAM-695033. 2. VAZHAKKULAM BLOCK PANCHAYAT REP.BY ITS SECRETARY, VAZHAKKULAM BLOCK PANCHAYAT OFFICE, SOUTH VAZHAKKULAM P.O., ALUVA- 5, ERNAKULAM DISTRICT. 3. STATE OF KERALA REP.BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 MS.K.R.DEEPA, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.5099 of 2010 (J) --------------------------------- Dated, this the 17th day of February, 2010 J U D G M E N T The petitioner claims to be a social worker and a resident and voter of the 2nd respondent Panchayat. 2. In the general election, one Smt.Khadeeja Beevi was elected from Nedumthodu Division of the 2nd respondent. However, Smt.Khadeeja Beevi was disqualified with effect from 09/10/2009. According to the petitioner, steps are being taken by the 1st respondent for conducting bye-election to fill up the casual vacancy, which shall not be done. Contention raised by the petitioner is that in view of Section 149 (3) & (4) of the Kerala Panchayat Raj Act, bye-election should not be conducted if the general election is due in six months. This contention is on the basis that next general election is to be held in August, 2010. It is also contended that even if bye-election is held, period left is too short for the member to do anything worthwhile. 3. However, a reading of Section 149 (3) of the Kerala Panchayat Raj Act shows that a casual vacancy in the office of a member shall be filled by the State Election Commission within six months after the occurrence of the vacancy, through a bye-election. WP(C) No.5099/2010 -2- Sub Section (4) provides that no bye-election shall be held to fill a vacancy occurring within six months before the original date of retirement by efflux of time. Therefore, the only statutory interdiction is against filling up of vacancy 'occurring' within six months before the date of retirement by efflux of time. In this case, the vacancy having arisen as early as on 09/10/2009 is not one which occurred within the six months before the ordinary date of retirement by efflux of time as provided in sub Section (4) of Section 149. If so, the Election Commission cannot be interdicted from proceeding with filling up of the casual vacancy. As far as the contention that since the time available is too short for the member to implement any project, bye-election shall not be held, it should be held that this Court is only concerned with the legality of the action of the 1st respondent and not the desirability of the requirement of election. In the result, as the petitioner could not make out a case of any illegality, and therefore I am not inclined to interfere with the matter. The writ petition fails and is accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg