IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 WA.No. 449 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.5099/2010 Dated 17/02/2010 .................... APPELLANT/PETITIONER: -------------- K.M.MAHINKUTTY, S/O.K.S.MOHAMMEDALI, KAROTHUKUDY HOUSE, KANDANTHARA, ALLAPRA.P.O., VENGOLA VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DIST. BY ADV. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK SRI.M.S.UNNIKRISHNAN (OASIS) RESPONDENTS/RESPONDENTS: --------------- 1. THE KERALA STATE ELECTION COMMISSION REP. BY ITS SECRETARY, ELECTION COMMISSION OFFICER, TRIVANDRUM-695 033. 2. VAZHAKKULAM BLOCK PANCHAYAT, REP. BY ITS SECRETARY, VAZHAKKULAM BLOCK PANCHAYAT OFFICE, SOUTH VAZHAKKULAM.P.O., ALUVA-5, ERNAKULAM DIST. 3. STATE OF KERALA, REP. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 SR. G.P. SRI.BENJAMIN PAUL FOR R2. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN, AG. C.J. & C.N.RAMACHANDRAN NAIR, J. .................................................................... Writ Appeal No.449 of 2010 .................................................................... Dated this the 11th day of March, 2010. JUDGMENT Raman, Ag. C.J. This is filed by a social worker. In the general election one Smt.Khadeeja Beevi was elected from Nedumthodu Division of the second respondent-Panchayat. Subsequently she was disqualified on 9.10.2009. Steps were taken to conduct a bye-election to fill up the casual vacancy. Based on Section 149(3) & (4) the contention was that no bye-election should be conducted if the general election is due within six months. According to the petitioner, the general election is due in August 2010 and even if bye-election is now held, the period left for general election will be less short of six months. On a reading of Section 149(3) of the Kerala Panchayat Raj Act, the learned Single Judge held that if there is a casual vacancy in the office of a member, it shall be filled up within six months after the occurrence of the vacancy and sub-section (4) provides that no bye-election shall be held to fill a vacancy occurring within six months before the original date of 2 retirement by efflux of time. Therefore, if the vacancy arises within a period of six months prior to the general election, such vacancy need not be filled up until the general election. But if the vacancy is arising prior to six months' period, then such vacancy can be filled up by a bye-election. Therefore, the point to be noticed is when did the vacancy arise. If the vacancy has arisen more than six months prior to the general election, then sub-section (4) is not attracted. On the other hand, as per the provision bye-election has to be held within six months of the date of occurrence of vacancy. The view as taken by the learned Single Judge found approval by a Division Bench of this court in PULIKUZHIYIL MOHAMMEDKUTTY V. POOKKOTTIL SADANANDAN & ANOTHER (2010(1) KHC 806). In the circumstances, we find no merit in the Writ Appeal and is dismissed. P.R.RAMAN Acting Chief Justice C.N.RAMACHANDRAN NAIR Judge pms