IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 WP(C).No. 33650 of 2008(E) -------------------------- PETITIONER(S): --------------- SHRI DEVASSIA JOSEPH AGED 42 YEARS, S/O.SHRI JOSEPH, P.O.THOZHAMUNDA KENICHIRA, WAYANAD DISTRICT. BY ADV. SRI.TPM.IBRAHIM KHAN RESPONDENT(S): --------------- 1. THE PRESIDENT, POOTHADY GRAMA PANCHAYAT WAYANAD DISTRICT. 2. THE RETURNING OFFICER, POOTHADY GRAMA PANCHAYAT (DISTRICT TOWN PLANNER, WAYANAD DISTRICT. 3. THE STATE ELECTION COMMISSION REPRESENTED BY THE SECRETARY, THIRUVANANTHAPURAM. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R2 & 3 SRI.P.C.SASIDHARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C. NO. 33650/2008. --------------------------------------------------------------------- EXT.P1 PHOTOSTAT COPY OF CERTIFICATE OF ELECTION. EXT.P2 PETITION DATED 7-11-2008. EXT.P3 REPRESENTATION DT. 10-11-2008. EXT.P4 NOTICE DT. 3-11-2008. EXT.P5 PETITION DT. 11-11-2008. EXT.P5(A) RECEIPT DT. 11-11-2008. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 33650 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th November, 2008. J U D G M E N T The petitioner was elected as a member of the Poothady Grama Panchayat, Wyanad District on 6-11-2008, in a by-election, for which the Election Commission has issued Ext. P1 certificate of election. The petitioner is aggrieved by the action of the 1st respondent in fixing 20-11-2008 as the date for the petitioner to take oath as a member of the Panchayat which, according to the petitioner, is to defeat the right of the petitioner to vote in the election to the office of the Vice President scheduled to be held on 18-11-2008. According to the petitioner, the action of the 1st respondent-President of the Panchayat in postponing the swearing in of the petitioner as a member of the Panchayat is arbitrary and mala fide. 2. Both the Election Commission and the President of the Panchayat oppose the contention of the petitioner. A statement has been filed on behalf of the Election Commission stating that the Commission fixed the date for election to fill up the casual vacancy of the office of the Vice President, Pothady Grama Panchayat, originally as 4-11-2008, ie. before the election in which the petitioner was elected. Later on, one of the members complained that he received notice late and therefore there is no seven clear days between the receipt of notice and the date of meeting for election, which would vitiate the election itself. After considering the explanation from the Returning Officer, the Election Commission re-scheduled the meeting for election to the office of the Vice President as 18-11-2008. Therefore, according to the Election Commission, there is no merit in the contention raised by the petitioner that the date of election and the date of taking oath by the petitioner have been fixed so as to deny the petitioner the right to vote in the election of the Vice President. They would further submit that going by Section 152 of the Kerala W.P.C. No. 33650/08 -: 2 :- Panchayat Raj Act and Rule 3 of the Kerala Panchayat Raj (Oath of Members, President and Vice President) Rules, 1995, the President has a discretion to fix the date of taking oath of a member elected in a bye-election within the parameters fixed by Section 152. They also point out that an identical question has been considered by a learned Judge of this Court in Nazeera v. State of Kerala, 2006(3) KLT 272, in which this Court upheld the discretion on the part of the President in fixing the date of taking oath of a member elected in a by-election within the outer limit fixed by the Statute for taking oath as a member. It is further pointed out that in view of the facts stated, it cannot be said that there is mala fides on the part of the President in fixing the date of taking oath. 3. I have considered the rival contentions in detail. 4. On a reading of the decision in Nazeera's case (supra), I do not find any reason to take a different view, especially since from the facts explained by the Election Commission, I am unable to come to a conclusion that there was arbitrariness or mala fides in fixing the date of taking oath by the petitioner. In the above circumstances, I do not find any merit in the writ petition. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/