IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 7728 of 2007(T) -------------------------------------- PETITIONER(S): ------------------------- SANTHOSH GEORGE,AGED 39 YEARS, S/O.M.I.VARGHESE,MOOZHIYIL HOUSE,KADAVOOR VILLAGE. BY MR.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): ----------------------- 1. P.S.MATHAI,AGED 43 YARS,SON OF SCARIA, PARAPPANATTU HOUSE,NJARAKKADU,KADAVOOR VILLAGE. 2. K.N.VIJAYAN,AGED ABOUT 45 YEARS, S/O.NARAYANAN,KANJAMPURATH HOUSE,NJARAKKADU, KADAVOOR VILLAGE. 3. THE PAINGOTTUR GRAMA PANCHAYAT, ERNAKULAM DISTRICT,REPRESENTED BY ITS SECRETARY. R1 BY ADV. MR.PEEYUS A.KOTTAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON 05/04/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.7728/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ELECTION PETITION 12/2005 FILED BY THE IST RESPONDENT BEFORE THE MUNSIFF'S COURT, MUVTTUPUZHA DTD. 31.1.2006. P2:- COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN ELECTION OP. NO.12/05 DTD. 17.7.06. P3:- COPY OF THE ORDER DTD. 20.1.07 IN EOP 12/2005 ON THE FILE OF THE MUNSIFF'S COURT, MUVATTUPUZHA. P4:- COPY OF THE JUDGMENT DTD. 28.2.07 IN APPEAL ELECTION NO. 40/07 ON THE FILE OF THE DISTRICT JUDGE, ERNAKULAM. R1(a):- COPY OF THE RELEVANT PAGES OF THE BOOK ELECTION LAWS, PRACTICE AND PROCEDURE. TRUE COPY P.A. TO JUDGE tss M.N.KRISHNAN, J ===================== W.P.(C) No.7728 OF 2007 ===================== Dated this the 5th day of April 2010 JUDGMENT This writ petition is preferred against the judgment of the District Court, Ernakulam in Appeal(Election)No.40 of 2007. The brief facts necessary for the disposal of the petition are stated as follows: The election petitioner had contested the election to Ward No.VI of Paingotoor Grama Panchayat as a candidate representing the Indian National Congress. The first respondent in the election petition was a candidate sponsored by Left Democratic Front and the second respondent a candidate of the BJP. 701 votes were polled of which the election petitioner got 327 and the first respondent 358. Considering the highest number of votes, the first respondent, viz., the writ petitioner herein was declared elected from Ward No.VI. It is challenging that election, the election petition had been filed. 2. The first respondent in the election is an employee working in the Model Engineering College, Thrikkakara run by the Institute of Human Resources Development for Electronics(for short 'IHRDE') which is a corporation fully controlled by the State Government for the purpose of WP(C)7728/2007 -:2:- Section 30 of the Kerala Panchayat Raj Act. Since the first respondent in the election petition is a permanent employee of the Model Engineering College he is disqualified to stand in Panchayat election by virtue of Section 30 of the Kerala Panchayat Raj Act. Though objection was raised at the time of scrutiny of nomination, it was rejected as no evidence was adduced. So, it is contended that the first respondent in the election petition is a disqualified person and his nomination had been improperly received and that by virtue of Section 30 of the Kerala Panchayat Raj Act his election is to be declared as null and void for the reason that disqualified person has been permitted to contest. It is also contended that had his nomination been rejected, then necessarily the election petitioner would have secured more votes and therefore he could have been returned to the seat. 3. On the contra, the first respondent entered appearance and filed a detailed counter statement. It is contended that what is decipherable is that the contention of the petitioner is that the nomination of the first respondent has been improperly accepted under Section 102. Therefore it is contended that the mere improper acceptance of a nomination is not sufficient. It is further contended that the result of the election has to be proved materially affected by the acceptance of the nomination. It is further averred that the contention that being an employee of IHRDE he will come under the WP(C)7728/2007 -:3:- employment of a Corporation for the purpose of Section 30 of the Kerala Panchayat Raj Act is incorrect. The District Court, Ernakulam in its judgment in C.M.A.No.372 of 2002 has held that IHRDE is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act. So it is contended that there is no disqualification. Further it is contended that this respondent being only an employee of the IHRDE is qualified to hold office as a member of the Panchayat. The respondent has also refuted the allegation that the election petitioner is to be declared as successful candidate. 4. In the trial court, Exts.A1, B1 and B2 and Exts.X1 to X4 were marked. Pws 1 and 2 have been examined. On an appreciation of the materials, the trial court declared the election of the first respondent in the petition to Ward No.VI of the Paingotoor Grama Panchayat as void. The court also disallowed the prayer of the election petitioner to declare him as elected. Then the other mandatory requirements were also directed to be informed. Against that decision, the first respondent in the election petition preferred the appeal and in the appeal the appellate court has confirmed the order of the election Tribunal and it is against that decision the present writ petition is filed. 5. The points that arise for determination in the writ petition are :(1) WP(C)7728/2007 -:4:- Whether IHRDE under whom the writ petitioner is employed is a Corporation for the purpose of Section 30 of the KPR Act.(2)If so, whether he is disqualified from contesting the election.(3) Whether his election has to be declared as null and void.(4)Whether it is necessary for the election petitioner to prove that in spite of improper acceptance of nomination, the result has been materially affected. 6. Points 1 to 4: For the purpose of avoiding repetition, the points are answered together. Under Section 102 of the KPR Act if on the date of election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act his election can be declared as void. Section 102(1)(d) stipulates that an election can be nullified if it has been materially affected by the improper acceptance of any nomination. The main thrust of the election petitioner is under Section 30 of the KPR Act. Under the said section no officer or employee in the service of the State or Central Government or of a local authority or a corporation controlled by the State or Central Government or of a local authority or any company in which the State or Central Government or a local authority not less than fifty one percent share or of a Statutory Board or of any University in the State shall be qualified for election or for holding office as a member of a Panchayat at any level. So, in order to attract disqualification under Section 30 it has to WP(C)7728/2007 -:5:- be established that IHRDE is also a Corporation for the purpose of the Act under Section 30 and that it is controlled by the State or Central Government. 7. Now the documents are Exts.X1 to X4 of which Ext.X1 is a nomination paper and Exts.X2 and X3 are relating to the filing of the nomination paper and Ext.X4 relating to IHRDE. There was an earlier round of litigation between the present writ petitioner and the previous candidate, who lost in the election. A C.M.A was filed against the order of the election Tribunal in O.P.No.18 of 2000. The learned District Judge, on a consideration of the materials held that the present writ petitioner is disqualified under Section 30 of the Act and therefore declared his election as null and void. Against that a C.R.P was filed and the High Court held that the question that had been canvassed in the election petition is whether the present writ petitioner is holding any office of profit under the State Government and therefore the question of consideration under Section 30 of the Act was not proper and therefore remanded the case back to the District Judge. On remand, as per Ext.B1 judgment the learned District Judge held that the writ petitioner was not in the service of the State Government to attract the disqualification. Therefore int hat round of litigation the point that arose for determination was whether he was in the service of the State WP(C)7728/2007 -:6:- Government and it was found against and therefore his election was upheld. Subsequently the writ petitioner again contested the election and had won the election. The averments in the election petition make it crystal clear that the election petition is filed by the petitioner therein contending that being an employee of IHRDE the writ petitioner is an employee of the Corporation owned by the State Government and therefore he is disqualified. So the previous judgment in the earlier case cannot have any application to this case and the decision therein will not be of any bar for the reason that it is beyond the scope of that. Now the two points to be proved in order to entitle the election petitioner to succeed are regarding the question whether IHRDE will be a corporation and whether it is controlled by the State Government. Let me first consider about the second point for the reason that it is squarely covered on the point by one of the decision of the Supreme Court. In the decision reported in Institute of Human Resources Development and others v. T.R.Rameshkumar and others(1995) 4 SCC 211) the Apex Court was considering regarding the role of the State Government in the institution. In paragraph 6, it has been held that “the College run by IHRDE is affiliated to Cochin University of Science and Technology while the College run by Lal Bahadur Shastri Centre is affiliated to the University of Calicut” Then the court considered its WP(C)7728/2007 -:7:- registration under the Societies Registration Act and ultimately refers to a Government clarification which states that IHRDE and LBS Centre for Science and Technology are autonomous bodies fully owned by the State Government. It also held that they have to be treated as Government colleges and the Government undertakes to give them financial support in future if the necessity arises. So, by virtue of this decision coupled with Ext.X4 it could be convincingly established that IHRDE is controlled by the State Government. So further discussion on that subject is not necessary. 8. Now comes the next question. Whether it can be treated as a corporation. Under the KPR Act the word 'corporation' is not defined. So we have to consider various decisions to find out whether it is a corporation or not. The learned District Judge in his order had extracted the meaning of 'corporation' from Black's Law Dictionary, which reads as follows: “An artificial person or legal entity created by or under the authority of the laws of a state or nation, composed in some rate instances, of a simple person and his successors being the incumbents of a particular office, but ordinarily consisting an association of numerous individuals. Such entity subsists as a body politic under a special denomination, which is regarded in law as having a personality and existence distinct from that of its several members, and which is by the same authority, vested with the capacity of continuous WP(C)7728/2007 -:8:- succession, irrespective of changes in its membership, either in perpetuity or for a limited term of years, and of acting as a unit or single individual in matters relating to the common purpose of the association, within the scope of the powers and authorities conferred upon such bodies by law”. I may also refer to the meaning of the word 'corporation' given in K.J.Aiyar's Judicial Dictionary 12th Edition at pages 329 to 332 this has been discussed. In S.S. Dhanoa v. Municipal Corporation (1981) 3 SCC 431)the Apex Court held that the essence of a corporation consists in (1) lawful authority of incorporation, (2) the persons to be incorporated, (3) a name by which the persons are incorporated, (4) a place, and (5) words, sufficient in law to show incorporation. It was also held that no particular words are necessary for the creation of a corporation, any expression showing an intention to incorporate will be sufficient. In AIR 1981 SC 1395, the Apex Court in paragraph 9 held that “'Corporation' in its widest sense means any association of individuals entitled to act as an individual. But certainly it is not in the sense in which it is used here. Corporation established by or under an Act of Legislature can only mean a body corporate which owes its existence”. As far as the case on hand is concerned, IHRDE is not a corporation established by an Act or Legislature but is an association of individuals formed under the Rules and Regulations and giving the widest WP(C)7728/2007 -:9:- meaning to the word 'corporation' and the object of Section 30 of the KPR Act which prevents entry into the election arena by persons who are working in a corporation owned by the State it has to be held that the widest meaning has to be given in this context. In Halsbury's Laws of England, it is stated that “a 'Corporation' may be defined as a body of persons which is recognised by the law as having a personality which is distinct from separate personalities of the members of the body or the personality of the individual holder for the time being of the office in question”. 9. Now I may refer to the document Ext.X4. Ext.X4 would show that the 7 persons who formed themselves were ex-officio members. They are Minister of Education, Chief Secretary, etc. They are holding membership in their individual capacity by virtue of their office. It further shows that it is formed with a common object to conduct course in Electronics and allied subjects. Clause V shows that it was a governing body consisting of 23 officers. It looks that the entire properties and the estate of the society will vest in the governing bodies and the business and affairs of IHRDE is to be managed by the governing body. The learned District Judge observed that on a reading of Ext.X4 it is clear that it is an association of persons formed together in the name of their office. It is a legal entity distinct from WP(C)7728/2007 -:10:- the persons constituting the society. The members are not formed by natural persons but the members are not representing in the personal capacity but in their official capacity. It has perpetual succession. It can be seen that the necessary ingredients to constitute a corporation are very much attracted in this case. 10. Learned counsel for the writ petitioner would contend that the office of employment is not under the Government and therefore he cannot be said to be disqualified. He had referred to the decision of the Supreme Court reported in Satrucharla Chandrasekhar v. Vyricherla Pradeep Kumar Dev(AIR 1992 SC 1959). It was a case where the question was whether a person who was working as a teacher in a society registered under the Societies Registration Act is holding office of profit under Government. So, the scope was whether his post as a teacher was a post which attracts holding office of profit under Government. The Supreme Court after exhaustive consideration held that it does not for the reason that the power to appoint him is not on the Government. Whether to continue him or not was on the Government and therefore the Government have no control over the said person. But, it has to be stated that the very purpose incorporating such disqualification was that the true principle behind this provision in Article 102(1)(a) is that there should not be any conflict between the duties WP(C)7728/2007 -:11:- and the interest of an elected member. It can also be seen that the underlying principle and the real intention of the Constitution makers in incorporating this salutary provision in the Constitution is to keep Legislatures independent of the executive. It was felt desirable that members of legislatures should not feel themselves beholden to the executive government and lose their independence of thought and action in the discharge of their public duties as true representatives of the people. So the decision referred to in AIR 1992 SC 1959 only deals with a situation regarding holding office of profit under the Government. It is true that writ petitioner is not holding office of profit under the Government. But he is an employee under a Corporation for the purpose of the Act. 11.Now in the decision reported in Board of Trustees v. State of Delhi (AIR 1962 SC 458) the question was regarding whether a particular society falls under Entry 32 of List II of the Constitution. One of the members of the Constitution Bench Justice J.R.Mudholkar in paragraph 37 has put the characteristics of the society when it becomes a corporation or near corporation, which reads thus: “All these are the characteristics of a separate legal entity such as a corporation. If the law confers on a body all the normal powers of a legal person it will be a corporation in all but name. A registered society, however, cannot hold property and to that extent it WP(C)7728/2007 -:12:- must be treated as a voluntary association, made up of its constituents. Therefore, it can be regarded as a quasi corporation or, in the words of Lords Morton and Porter, a “near-corporation”. Now a quasi-corporation or a near corporation-whatever we may call it—being a legal entity at least for some purposes is not a mere society made up of its constituents.”. 12. Now the other decisions cited are (1) AIR 1963 SC 1811 (S.T.Corporation of India v. Commercial Tax Officer) which deals with the question of citizens and it has been held that it includes only natural persons and not juristic persons like corporations. So from the discussion made above, and also referring to the purport and purpose for IHRDE is formed and that it is in fact absolutely owned and controlled by the State Government and as it satisfies all the requirements of a corporation, I have no hesitation to hold that IHRDE is a corporation controlled by the State and therefore Section 30 will be attracted. Being an employee of the said IHRDE the writ petitioner is disqualified from contesting elections as it is a bar. I agree with the finding of the learned trial Judge as well as the District Judge. 13. Lastly the learned counsel for the writ petitioner had cited various decisions before me such as AIR 1964 SC 1545, AIR 1964 SC 1027, AIR 1986 SC 1253, 1993 Suppl. (2) SCC 229, (2000)1 SCC 261, (2002) 1 SCC WP(C)7728/2007 -:13:- 160, (2003)7 SCC 709, etc. All these decisions are referred to for the purpose of lack of pleadings and also to canvass the question that unless the election petitioner is able to satisfy the improper acceptance of nomination has materially affected the election process the election cannot be declared as null and void. It has to be stated that by virtue of Section 102(1) the election has to be declared as void for the reason that the writ petitioner was disqualified from conducting elections. When a disqualified member contest election and when his nomination is improperly accepted I cannot have any hesitation to hold that it has materially affected the election process. Therefore the said contention also cannot be sustained. Therefore the argument of the learned counsel for the writ petitioner on that ground also cannot be accepted. From these discussions, I hold that there are no grounds to interfere with the decision rendered by the trial court as well as the appellate court. So this writ petition lacks merit and it is liable to be dismissed. Hence it is dismissed. Send an authenticated copy of this judgment to the State Election Commission as contemplated under the Rules. M.N.KRISHNAN, JUDGE Cdp/- WP(C)7728/2007 -:14:-