IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932 WP(C).No. 38770 of 2010(U) ---------------------------------------- PETITIONER(S): ------------------------- P.R. UTHAMAN, S/O.KOCHURAMAN, POOVANNAL HOUSE, PUTHIYAKAVU.P.O., MAVELIKKARA, ALAPPUZHA. BY ADV. SRI.P.VINODKUMAR RESPONDENT(S): -------------------------- 1. THE KERALA STATE ELECTION COMMISSION, O/O. THE ELECTION COMMISSION, THIRUVANANTHAPURAM-695 001. 2. MAVELIKKARA MUNICIPALITY, REP. BY THE SECRETARY, MAVELIKKARA-690 101. R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC, K.S.E.COMMN. R2 BY ADV. SRI.K.HARILAL,SC,MAVELIKARA MUNICIPALITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 38770 of 2010(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CERTIFICATE ISSUED BY THE RETURNING OFFICER DATED 27/10/2010. EXT.P2: COPY OF THE COMPLAINT DATED 15/11/2010 FILED BEFORE THE 2ND RESPONDENT. EXT.P3: COPY OF THE ACKNOWLEDGMENT DATED 15/11/2010. EXT.P4: COPY OF THE PETITION BEFORE THE 1ST RESPONDENT DATED 07/12/2010. EXT.P5: COPY OF THE ORDER IN UNNUMBERED O.P PASSED BY THE 1ST RESPONDENT DATED 09/12/2010. RESPONDENT'S ANNEXURE:- ANNEXURE-A: COPY OF THE PHOTOCOPY OF THE PROCEEDINGS NO.290/B/2011/SEC DATED 17/01/2011 OF THE STATE ELECTION COMMISSION ANNOUNCING THE SCHEDULE OF BY ELECTION. //TRUE COPY// P.S. TO JUDGE rs “C.R.” C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.38770 of 2010 ---------------------------- Dated 7th March, 2011 JUDGMENT The petitioner was the returned candidate from Ward No.II of Mavelikkara Municipality in the election held on 25.10.2010. The petitioner had contested the said election as an independent candidate, admittedly, under the banner of the Left Democratic Front (LDF). In the election, out of the 28 seats, LDF and the United Democratic Front (UDF) shared 13 seats each and the remaining two seats went to the Bharathiya Janatha Party. The election to the post of Chairperson was held on 8.11.2010. One Smt.Leela Abhilash stood as the candidate of the LDF. But, on account of the non-affixture of signature by the petitioner on the reverse side of the ballot paper the vote cast by him was declared as invalid. Thereupon, the petitioner had tendered his resignation to the Secretary of the Municipality on 8.11.2010 itself. According to the petitioner, on 15.11.2010 he had submitted Ext.P2 complaint before the Secretary of the Municipality and then moved the Election Commission by filing Ext.P4 petition in terms of the provisions under section 40(3) of the Kerala Municipality Act (for short `the Act'). Ext.P5 is the order passed thereon. On finding that Ext.P4 was filed after the expiry of WP(C).No.38770/2010 2 the statutorily prescribed period and the delay thereof could not be condoned the first respondent declined to entertain Ext.P4. It is in the said circumstances that this writ petition has been filed challenging Ext.P5 and seeking a declaration that the petitioner had initiated proceedings under section 40(3) of the Act within the period of limitation in view of Exts.P2 and P3. 2. Before considering the rival contentions, on merits, it is relevant to refer to the relevant provisions under the Act on the subject matter. Section 40 of the Act reads thus:- “40. The resignation of the Chairperson, Deputy Chairperson or Councillor.- (1) The Chairperson, Deputy Chairperson or any other Councillor of a Municipality may resign his office by tendering resignation to the Secretary of the Municipality in the form prescribed and the resignation shall take effect from the date of its receipt by the Secretary and the Secretary shall report the fact forthwith to the Council and to the State Election Commission. (2) The Chairperson, Deputy Chairperson or the Councillor who resigns his office may, either tender his resignation directly or send through registered post if such resignation letter is attested by a Gazetted Officer, as the case may be, to the Secretary and the Secretary shall acknowledge receipt of the same. (3) Where any dispute arises in respect of any resignation, it shall be referred to the State Election Commission for decision and its decision thereon shall WP(C).No.38770/2010 3 be final: Provided that no such dispute referred after the expiry of fifteen days from the date of effect of the resignation shall not be considered by the State Election Commission.” 3. It is thus obvious that any dispute that arose in respect of resignation of the Chairperson, Deputy Chairperson or Councillor shall be referred to the State Election Commission for decision and its decision shall be final. The proviso to section 40(3) enjoins that no dispute referred after the expiry of 15 days from the date of effect of the resignation shall be considered by the State Election Commission. Going by the provisions under section 40(1) resignation tendered by the Chairperson, Deputy Chairperson or any other Councillor of a Municipality would take its effect from the very date of receipt of the same by the Secretary and the Secretary is bound to report that fact forthwith to the Council and also to the Election Commission. Indisputably, date of resignation in the case on hand is 8.11.2010 and the same was received by the 2nd respondent, the Secretary of the Municipality on 8.11.2010 itself. So, going by the above provisions, dispute, if any, ought to have been referred to the Election Commission within 15 days from 8.11.2010 to bring it within the jurisdiction. Admittedly, the petitioner had WP(C).No.38770/2010 4 preferred Ext.P4 petition only on 7.12.2010, that is, beyond the said statutorily prescribed period. The contention of the petitioner is that within three days from the date of submission of resignation he had submitted Ext.P2 complaint dated 15.11.2010 before the second respondent. According to him, the second respondent ought to have referred the dispute in terms of the provisions under section 40 of the Act to the first respondent. Ext.P3 is the receipt given in token of acceptance of Ext.P2. It is in the said circumstances that the petitioner contends that in view of Exts.P2 and P3, Ext.P4 petition moved by the petitioner under section 40(3) of the Act has to be treated as a petition filed within the stipulated time. 4. In the context of the contentions, it is relevant to refer to the provisions under the Kerala Municipality (Resignation of Chairperson, Deputy Chairperson or Councillors) Rules, 2005 (for short `the Rules'). Form of the letter of resignation is given under Rule 5(1) as appendix. Rule 5 of the Rules reads thus:- “5. Settlement of dispute regarding resignation.-(1) Any person having a dispute regarding the resignation of the Chairperson, or the Deputy Chairperson or the Councillor may, within fifteen days from the date on which the resignation is deemed to have taken effect, prefer a petition before the State Election Commission for its decision and the WP(C).No.38770/2010 5 decision of the Commission thereon shall be final. (2) Every petition filed before the State Election Commission under sub-rule (1) shall be disposed of by the Commission within one month.” It is evident from Rule 5 of the Rules that any person having a dispute regarding the resignation has to file the same within 15 days from the date on which the resignation is deemed to have taken effect, to the State Election Commission for its decision. The very fact that the petitioner is aware of the position that he can raise a dispute before the State Election Commission is evident from Ext.P4 itself. He has submitted Ext.P4 before the Election Commission. Therefore, the question is whether he had preferred Ext.P4 petition within the time statutorily prescribed. In the light of Rule 5 of the Rules the petitioner cannot say that he was under the impression that the second respondent would refer the dispute before the Election Commission. In terms of Rule 5, a person who is having a dispute in the matter has to prefer a petition within the statutorily prescribed period before the Election Commission. In view of the said specific provision under Rule 5 of the Rules I may refer to the contentions raised by the petitioner to attack Ext.P5 contending that on receipt of Ext.P2 the 2nd respondent should have referred the same as a dispute to the Election Commission. To know the WP(C).No.38770/2010 6 substance, if any, the requests in Ext.P2 require reference and they read thus:- ^jv]i] oLj]\ÿV a] കNf]ooLp qL^]¨¾V fç] D¾qvLWeRoÐOU CT ASkWVx j¤WOvL¢ fLoy]\ÿfV CT yÚ¡Ç°¥ j]o]¾U `L¢ oLjy]WoLp] fW¡ÐV W]aÕ]sLpf-]-jLsLeV. Bpf]jL¤ IR¢r AUYf~U j]s j]¡¾eRoÐ-SkWVx]\ÿO RWLçOÐO. Obviously, Ext.P2 submitted before the 2nd respondent contained two requests firstly, to reject the resignation tendered by him and secondly, taking note of the reasons for the delay, to retain his office as Councillor. As already noticed hereinbefore, by operation of law under Section 40(1) of the Act a resignation tendered by a Councillor of a Municipality in the prescribed form shall take its effect from the date of its receipt by the Secretary. In this case, indisputably, the resignation of the petitioner was received by the 2nd respondent, the Secretary, on 8.11.2010 itself and thus it took its effect on 8.11.2010 itself. Ext.P2 carrying the aforesaid requests, is dated 15.11.2010. In other words, by the time the petitioner filed Ext.P2 the resignation had taken its effect. If that be so, the 2nd respondent is totally lacking jurisdiction to entertain the requests made as per Ext.P2. Since the resignation has taken its effect he was not competent to reject the resignation tendered by the petitioner and WP(C).No.38770/2010 7 also to retain the petitioner in the office as Councillor. A petition to an incompetent authority/person carrying requests for intervention on an issue totally outside the scope of power of that person/authority cannot legally enlarge or exclude the statutorily prescribed period. Therefore, in my considered view, Ext.P2 cannot be relied on for the purpose of canvassing the position that Ext.P4 should be treated as a petition filed within the statutorily prescribed period of 15 days. I may also hasten to add that Ext.P2 contained no request whatsoever, to refer the dispute in the matter to the Election Commission. The petitioner himself did not have a case that Ext.P2 contained any such request for reference. The relevant provisions viz., Section 40(3) of the Act and its proviso have already been extracted above. The petitioner is harping upon the expression `it shall be referred' employed in section 40(3) and the expression `no such dispute referred' under its proviso. As already noticed hereunder, under section 40(1) of the Act the Secretary, on receipt of resignation tendered by the Chairperson, Deputy Chairperson or any other Councillor is duty bound to report that effect forthwith to the Council and to the State Election Commission. Under Section 40(2) of the Act the Secretary is duty bound to acknowledge the receipt of the same. In this case, the petitioner has accepted the fact that he had WP(C).No.38770/2010 8 tendered his resignation in the prescribed form on 8.11.2010 to the 2nd respondent and also admitting his signature in the said resignation letter dated 8.11.2010. Evidently, as per Ext.P2 he made requests only to reject his resignation or to retain his office as Councillor of the Mavelikkara Municipality. Therefore, in the absence of any request for reference the question is whether the second respondent was under any obligation to refer Ext.P2 as a dispute and in that view of the matter, at the first instance, whether section 40(3) of the Act and its proviso cast any obligation on the second respondent to make such reference. There is nothing under section 40(3) or its proviso to show that it contemplates `an act of referring' by the Secretary of a Municipality. When the law did not confer/cast, upon the Secretary any right or liability to decide the question whether there exists a dispute and then, to make a reference based on its answer cannot be read into section 40(3) or its proviso. The mere usage of the expression `it shall be referred' or `no such dispute referred' respectively under section 40(3) of the Act and its proviso cannot be construed as contemplation of an obligation on the Secretary to refer a dispute in the matter of resignation to the Election Commission even in the absence of a specific request for that purpose by the concerned resigner. I am of the considered view that the Secretary of a WP(C).No.38770/2010 9 Municipality cannot be said to have a power to decide whether any dispute exists in the matter of resignation of a Chairperson, Deputy Chairperson or any other Councillor, even, for the limited purpose of deciding whether the resignation tendered involves any dispute to be considered by the State Election Commission and any such construction will go against the specific provisions under section 40 of the Act. In short, inaction on Ext.P2 cannot be construed as disuse of power by the Secretary even for the purpose of deciding the question of limitation regarding the petition filed before the State Election Commission. The petitioner cannot be permitted to import the meaning send or direct for decision to the word `refer' and to contend that Ext.P2 should have been referred to the State Election Commission by the 2nd respondent, Secretary even in the absence of any such request from him. In the absence of any specific request for reference the 2nd respondent would not have and could not have made any such reference. I am fortified in my view by a decision of this Court in Mani v. Anad Grama Panchayat (2009 (1) KLT 298). 5. Now, I may examine the case of the petitioner in the light of the Kerala Municipality (Resignation of Chairperson, Deputy WP(C).No.38770/2010 10 Chairperson or Councillors) Rules, 2005 which has been enacted in exercise of the powers under sub-section (1) of section 565 of the Act for the purpose of carrying out the purpose of section 40 of the Act. Going by Rule 5 of the Rules the onus or right to `prefer' a petition before the State Election Commission is on the person having a dispute regarding the resignation of the Chairperson or the Deputy Chairperson or the Councillor that too, within 15 days from the date on which the resignation is deemed to have taken effect. In this case, the petitioner preferred Ext.P4, virtually in terms of Rule 5 of the Rules only on 7.12.2010. Going by section 40(1) of the Act the resignation tendered by the petitioner took its effect on 8.11.2010 itself and therefore, Ext.P4 petition dated 7.12.2010 is filed beyond the period prescribed for preferring petition in terms of Rule 5 of the Rules. 6. The Explanatory Note under Rule 5 of the Rules reads thus:- “This does not form part of the Notification, but is intended to indicate its general purport) Sub-section 1 of section 40 of the Kerala Municipality Act, 1994 provides for the resignation of the chairperson or deputy Chairperson or Councillor in the form prescribed. Government have decided it as necessary to fix by rules, the way of tendering and the manner of WP(C).No.38770/2010 11 receiving resignation and the provisions for the follow- up action said as per the aforesaid section. This Notification is intended to achieve the above object. In view of the proviso to section 40(3) of the Act the decision in Ext.P5 cannot be said to be illegal or against the provisions of the Act or the Rules and calls for interference. 7. Before parting with the case I would like to add that a well thought out exercise of the invaluable right of franchise by the people cannot be taken as a mere vox populi and, even if drawn into a vortex of politics, a returned candidate has a duty to the electorate. At any rate, that mandate is not to be given away on the spur of moment. 8. The petitioner has a case that he was compelled to sign in the resignation letter. But, at the same time, he did not dispute the fact that he had put his signature in the resignation letter, that too, prepared in the prescribed form. There is absolutely no material produced before this Court to support that contention. That apart, in this case, the issue to be considered is only with respect to the sustainability of Ext.P5. In view of the factual and legal position, I am of the view that Ext.P5 order cannot be said to be infected with any illegality warranting interference WP(C).No.38770/2010 12 by this Court. There is no merit in this writ petition. Accordingly, this writ petition is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS