IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 33546 of 2008(R) -------------------------------------- PETITIONER(S): ---------------------- M. RESHIKESAN, S/O. GOPALAN NAIR, AGED 48 YEARS, MEMEBER, KAYANNA GRAMA PANCHAYATH, WARD-1, POST KAYANNA BAZAR, (VIA) PERAMBRA, KOZHIKODE DISTRICT. BY ADV. MR.GEORGE MECHERIL RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRESIDENT, KAYANNA GRAMA PANCHAYAT, KAYANNA BAZAR P.O., KOZIKODE DIST. 3. THE KAYANNA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KAYANNA BAZAR P.O., KOZHIKODE DISTRICT. 4. MR. GEORGE VETTIKATTU, PANCHAYATH MEMEBER, KAYANNA GRAMA PANCHAYAT, KAYANNA P.O., KOZHIKODE DISTRICT. R1 BY GOVERNMENT PLEADER SMT.N. SUDHA DEVI R2 & R3 BY ADV. MR.P.C.SASIDHARAN R4 BY ADV. MR.V.RAJENDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 33546/2008-R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT. EXT.P2: COPY OF THE PETITION FILED BEFORE THE 2ND RESPONDENT ON 26/10/2005. EXT.P3: COPY OF THE PETITION FILED BEFORE THE GOVERNMENT ON 27/10/2005. EXT.P4: COPY OF THE ORDER DATED 05/01/2006 OF THE FIRST RESPONDENT. EXT.P5: COPY OF THE JUDGMENT IN W.P.(C). NO. 30715/2005. EXT.P6: COPY OF THE JUDGMENT DATED 12/03/2007 IN W.P.(C). NO. 6096/2006. EXT.P7: COPY OF THE ORDER DATED 17/11/2007 OF THE FIRST RESPONDENT. EXT.P8: COPY OF THE COMMON JUDGMENT IN W.P.(C). NO. 34755/07 AND W.P.(C). NO. 8090/08 DATED 29/05/2008. EXT.P9: COPY OF THE GOVT. ORDER G.O.(RT)NO.3784/08/LSGD DATED 29/10/2008. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE RELEVANT PORTION OF THE MINUTES BOOK. EXT.R4(a): COPY OF THE PROCEEDINGS OF THE MEETING OF THE KAYANNA GRAMA PANCHYAT HELD ON 26/10/2005. //TRUE COPY// P.S. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C).33546/2008 -------------------- Dated this the 2nd day of April, 2009 JUDGMENT Petitioner, a member of the Kayanna Grama Panchayat stood as a candidate for election to the Development Standing Committee in the Panchayat held on 26.10.2005. Elections to the Standing Committees are regulated by Section 162 of the Panchayat Raj Act read with the Standing Committee Rules (hereinafter referred to as “the Rules”). As could be seen from the said provisions, elections are to be conducted following the system of proportional representation by a single transferable vote in terms of Section 162 (4) of the Act and Rule 7(4) of the Rules:- which read as follows:- Sec.162(4).In every standing committee there shall be members elected by the members of the Panchayat from among themselves under the proportional representation system by single transferable vote and a member shall not be a member of more than one standing committee at a time.” Rule 7(4).If the number of seats is more than 2 the number of seats, vacant, the members present in the meeting shall elect the members to the seats vacant in accordance with the system of proportional representation by single transferable vote, by conducting election under Rule 8” 2. It seems that on counting of the votes, it was found that 4 candidates had secured the following number of votes. First Vote Second Vote Third Vote K.Ajith Kumar 7 0 0 Vettikattu George 0 7 1 K.K.Narayanan 2 2 7 M.Reshikesan 2 2 0 (Petitioner) 3. As could be seen from Ext.R4(a), the Committee then proceeded to declare Mr.Ajith Kumar as the person who had secured the maximum number of first preference votes, the 4th respondent herein, the person who had secured the maximum number of second preference and Mr.K.K.Narayanan, who had secured the maximum number of third preference votes, as duly elected to the Development Standing Committee. Petitioner’s contention is that the election to the Standing Committee should have 3 been on the basis of the number of first preference votes secured by the candidates and not in the aforementioned manner. 4. Accordingly, a representation was preferred by the petitioner before the Minister which, it seems, was forwarded to the concerned Government Secretary. The Government took a decision thereon, as evidenced by Ext.P4, declaring that Mr.Ajith Kumar, K.K.Narayanan and the petitioner who had secured the maximum number of first preference votes, are elected to the Standing committee. In the meanwhile, petitioner had already approached this Court in Writ Petition No.30715/2005 challenging the election to the Standing Committee. Ext.P4 came to be passed during the pendency of the said writ petition and the same was closed recording the fact that an order in the nature of Ext.P4 has already been passed. 5. But Ext.P4 was challenged by the President of the Panchayat in Writ Petition No.6096/2006 which was disposed of under Ext.P6 judgment, by which Ext.P4 was set aside. Government was directed to take a fresh decision after hearing the President as also the petitioner herein. 4 Government was also directed to consider the argument of the petitioner herein that under Section 191 of the Panchayat Raj Act, Government has power to pass an order in the nature of Ext.P4 herein (Ext.P2 therein), without resorting to the procedure envisaged by the Kerala Panchayat Raj (procedure to be adopted on illegal resolution) Rules 2002. 6. Government passed a fresh order as Ext.P7 holding that the declaration of the results to the Development Standing Committee is illegal and directing the President to declare Mr.Ajith Kumar, Mr.K.K.Narayanan and the petitioner herein as elected to the Development Standing Committee. This was again challenged by the President of the Panchayat as also by the 4th respondent in W.P. (C)s.34755/2007 and 8090/2008. This Court again set aside Ext.P7 and directed the Government to pass a fresh order in the light of Ext.P6 judgment, after hearing both sides. This Court found that certain reasoning given by the Government in Ext.P7 is unsustainable. Pursuant to Ext.P8, Government passed a fresh order as Ext.P9. Government proceeded to set aside the declaration of the results to the Development Standing Committee held on 5 26.10.2005 and directed that a fresh election be conducted. This has been challenged in the writ petition. 7. Counter affidavit has been filed by the President of the Panchayat as also by the 4th respondent. I heard Mr.George Macheril, learned counsel for the petitioner, Mr.P.C.Sasidharan, learned counsel for the President of the Panchayat and Mr.V.Rajendran, learned counsel for the 4th respondent. 8. There cannot be a dispute that declaration of the results to the Election Development Standing Committee held on 26.5.2005 is illegal, going by the provisions of the Act and the Rules. This fact is not seriously disputed by the counsel for the respondents. But it is contended that there was a bonafide mistake on the part of the President in explaining the manner in which a single transferable vote was to be exercised. It is contended that what has been directed by the Government is to hold a fresh election in accordance with law and obviously the petitioner cannot be aggrieved by the same. 9. It is contended by the petitioner that a direction to hold 6 a fresh election is not contemplated by the statute. Since the Government has the power to modify a resolution taken by the Panchayat, which is only a power lesser in content that even cancellation of the resolution, which is also permissible under Section 191 of the Panchayat Raj Act, Government could have, after setting aside the election, directed that the results of the election be declared in such a manner as to bring it in conformity with the provisions of the Act and the Rules. That is to say, the Government could have directed that exercise of votes by the Panchayat members on 26.10.2005 be treated as valid and could have directed the President to declare the results, in accordance with Rule 7(4) of the Rules. 10. Learned counsel for respondents 2 and 4 points out that even if such a power with the Government is available, Government would have committed an illegality, if it had directed the President of the Panchayat to declare the petitioner herein as having been elected to the Development Standing Committee. This submission is made with reference to Section 162(4) of the Panchayat Raj Act . 11. It is pointed out that after the Development Standing 7 Committee elections on 26.10.2005, another election to the Finance Standing Committee was held on 31.10.2005 and as is evidenced from a resolution dated 31.10.2005 produced by the petitioner as a document along with a memo, petitioner was elected as the member of the Finance Standing Committee. This was on the premise that he was then not a member of any other Standing Committee. Therefore, with deference to the statutory mandate, that persons who have not been elected to any other Standing Committee, should be elected/nominated to some Standing Committee, the petitioner was elected to the Finance Standing Committee. It is pointed out that the petitioner still continues to be a member of the Finance Standing Committee and obviously a direction by the Government or by this Court at this stage, to the President of the Panchayat to declare that the petitioner should be treated as having been elected to the Development Standing Committee, would do violence to the provisions of Section 162(4) of the Act. 12. I refrain from expressing any final opinion on this aspect. But I am satisfied that this is a matter which has to be considered by the Government. I do not think this is a 8 case where this Court should step in and decide what the Government ought to have decided, in exercise of its powers under Section 191 of the Act. In the result, Ext.P9 is set aside in so far it relates to the election to the Development Standing Committee of the Panchayat. Government is directed to pass a fresh order in the manner as already directed in Ext.P8 judgment. This shall be done after notice to the petitioner and respondents 2 and 4, within two months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. V.GIRI, Judge mrcs