IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 WP(C).No. 37968 of 2007(T) ------------------------------------ PETITIONER: ------------------- VARGHESE YOHANNAN, MEMBER, WARD NO.6, AKALAKKUNNAM GRAMA PANCHAYATH, KOTTAYAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SMT. SARITHA DAVID CHUNKATH SRI.A.SAMEER SRI.R.JAYACHANDRAN RESPONDENTS: ---------------------- 1. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. SRI.GEORGE THOMAS, MANIANGHATTUPARAMBAKATHU HOUSE, ANICAD VADAKKUM BHAGAM KARA, KALOORKULAM P.O., KOTTAYAM DIST. 3. SRI.JOSE MATHEW, MANIANGHATTU HOUSE, ANICAD VADAKKUM BHAGAM KARA, KALOORKULAM P.O., KOTTAYAM DIST. 4. AKALAKKUNNAM GRAMA PANCHAYATH, KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 SRI.K.JAGADEESCHANDRAN NAIR FOR R3 SRI.K.JAJU BABU FOR R4 SRI.T.S.SHYAM PRASANTH FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2008, ALONG WITH WPC NO. 37935 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 37968 of 2007(T) -2- APPENDIX PETITIONER'S EXHIBITS EXT.P1 - TRUE COPY OF DECISION DT.12.1.2006 BY R4 PANCHAYAT EXT.P2 - TRUE COPY OF DECISION DT.19.7.2006 BY R4 PANCHAYAT EXT.P3 - TRUE COPY OF NOTICE DT. 21.7.2006 BY THE PETITIONER. EXT.P4 - TRUE COPY OF NOTICE DT.19.8.2006 BY THE PETITIONER. EXT.P5 - TRUE COPY OF STATEMENT DT. 22.5.2007 BY R3. EXT.P5(a) - TRUE COPY OF STATEMENT DT.22.5.2007 BY R2. EXT.P5 - TRUE COPY OF PETITION DT.20.12.2006 SUBMITTED BY R2 BEFORE R1. (I.A.NO.16949 OF 2007) EXT.P5(a) - TRUE COPY OF PETITION DT.20.12.2006 BY R3 BEFORE R1. (I.A.NO.16949 OF 2007) EXT.P6 - TRUE COPY OF OBJECTION DT.24.3.2007 BY THE PETITIONER. EXT.P6(a) - TRUE COPY OF OBJECTION DT.24.3.2007 BY THE PETITIONER. EXT.P7 - TRUE COPY OF ORDER DT.15.12.2007 ISSUED BY R1. RESPONDENTS' EXHIBITS EXT.R3(a) - TRUE COPY OF THE MODEL CODE OF CONDUCT. EXT.R3(b) - TRUE COPY OF THE LETTER ISSUED BY SECRETARY, AKALAKKUNNAM GRAMA PANCHAYAT. EXT.R4(a) - TRUE COPY OF RELEVANT EXTRACT OF MINUTES OF THE PANCHAYAT COMMITTEE MEETING HELD ON 4.1.2006. /TRUE COPY/ PS TO JUDGE THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.37968 OF 2007 ------------------------------------------- Dated this the 3rd day of July, 2009 JUDGMENT 1. Elected to the Akalakunnam Grama Panchayat to be its member from Ward No.6, the petitioner became the convener of the Grama Sabha of that constituency in terms of Section 3 (4) of the Kerala Panchayat Raj Act, 1994, for short, the”Act”. The first meeting of that Grama Sabha was held on 30.1.2006. The second meeting scheduled to be held on 29.4.2006 was adjourned to 19.8.2006 due to the General Elections fixed on 13.5.2006. But for want of quorum, the said meeting was again adjourned and held on 26.8.2006. 2.The 2nd and 3rd respondents filed petitions before the Kerala State Election Commission alleging that though the Panchayat was constituted on 2.10.2005, the first and second meetings of the Grama Sabha for Ward No.6 were convened by the petitioner only on 30.1.2006 and 26.8.2006 respectively and hence, having failed, twice consecutively, to convene meetings WPC.37968/07 Page numbers of the Grama Sabha, due once in three months, he has incurred the disqualification in terms of Section 35(p) of the Act. 3.The petitioner pleaded that as per Rule 4 of the Kerala Panchayat Raj (Procedure for Convening and Conducting the Meeting of Grama Sabha) Rules, 1995, for short, the “Meeting Rules”, the President of the Panchayat shall, after consultation with the Grama Sabha Convener, fix the date, time and venue of the Grama Sabha and that it is up to the Secretary of the Panchayat to make arrangements to conduct the Grama Sabha after due publicity. He also contended that he had made all arrangements to convene the Grama Sabha and that there was no default on his part. 4. Ext.P7 order was passed by the Commission disqualifying the petitioner under Section 36 read with Section 35(p) of the Act. That is under challenge. WPC.37968/07 Page numbers 5.This writ petition and W.P(C).37935/07 were earlier considered and the decision of the Commission was quashed as per judgment dated 15.7.2008, reported as Varghese Yohannan v. Kerala State Election Commission [2008(3) KLT 468]. That judgment was reviewed at the instance of the Commission as per the order reported as Kerala State Election Commission v. Mercy George [2008(3) KLT 83]. This writ petition is accordingly listed for hearing. 6.As per judgment dated 3.7.2009 in W.P(C).37935/07, it has been held that though it is the English version of the Act that prevails, the erratum notification relates back to the date of the amending Act 31 of 2005. It was also held that the alleged disqualification under Section 35(p) would not be incurred since that penal provision is dependent on Section 3(3) of the Act and penalty cannot be imposed when the person was faced with two sets of laws and two versions of the primary legislation as on the date of the alleged incurring of disqualification. Applying the said decision, there is no ground WPC.37968/07 Page numbers to sustain the impugned order holding the petitioner disqualified in terms of Section 35(p) of the Act. The writ petition succeeds. In the result, this writ petition is allowed, quashing Ext.P7. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.26/6.