IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 WP(C).No. 11637 of 2008(I) ---------------------------------------- PETITIONER(S): ------------------------- V.GOPALAKRISHNAN, VICE PRESIDENT (MEMBER) WARD NO.10, KANJIRAMKULAM GRAMA PANCHAYAT, THIRUVANANTHAPURAM DISTRICT. BY MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE, BY ADV.MR.P.K.MANOJKUMAR, SMT.SUSHYA RAJAN. RESPONDENT(S): --------------------------- 1. THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. V.B.ANILKUMAR, (MEMBER), WARD NO.4, KANJIRAMKULAM GRAMA PANCHAYAT, THIRUVANANTHAPURAM DISTRICT. 3. KANJIRAMKULAM GRAMA PANCHAYAT, KANJIRAMKULAM , REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM DISTRICT. R1 BY ADV.MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN. R2 BY ADVS. MR.ASP.KURUP, MR.SADCHITH.P.KURUP R3 BY ADVS.MR.PIRAPPANCODE V.SREEDHARAN NAIR, MR.PIRAPPANCODE V.S.SUDHIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/03/2010 ALONG WITH WPC NO. 11860 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.11637/2008 I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PETITION FILED BY THE SECOND RESPONDENT BEFORE THE ELECTION COMMISSION DTD. 17/01/2007 IN OP.NO.4/2007. P2: COPY OF THE PETITION FILED BY THE SECOND RESPONDENT BEFORE THE STATE ELECTION COMMISSION DTD. 17/01/2007 I.A.NO.3/2007 IN OP.NO.4/2007. P3: COPY OF THE OBJECTION FILED BY THE PETITIONER DTD. 20/02/2007 BEFORE THE STATE ELECTION COMMISSION, TRIVANDRUM. P4: COPY OF THE ORDER DTD. 28/06/2007 IN I.A.30/2007 IN O.P.4/2007 PASSED BY THE KERALA STATE ELECTION COMMISSION, THIRUVANAENTHAPURAM. P5: COPY OF THE NOTICE OF THE MEETING NO.13 DTD. 8/03/2006 ISSUED BY THE PRESIDENT, KANJIRAMKULAM GRAMA PANCHAYAT. P6: COPY OF THE EXTRACT OF THE MINUTES OF THE MEETING DTD. 15/03/2006 ISSUED BY THE SECRETARY, KANJIRAMKULAM GRAMA PANCHAYAT. P7: COPY OF THE ORDER OF THE ELECTION COMMISSION DTD. 1/04/2008 IN O.P.NO.4/2007 PASSED BY THE STATE ELECTION COMMISSION, THIRUVANAENTHAPURAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.11637 & 11860 of 2008 --------------------------------- Dated, this the 8th day of March, 2010 J U D G M E N T In WP(C) No.11637/2008, the order under challenge is Ext.P7, and in WP(C) No.11860/2008, the order under challenge is Ext.P5. Both these orders are rendered by the 1st respondent, the State Election Commission, holding that the petitioners who were the Vice President and President respectively of the Kanjiramkulam Grama Panchayat are disqualified under Section 35(o) of the Kerala Panchayat Raj Act. 2. Briefly stated, the facts of the case are that, the 2nd respondent in WP(C) No.11637/2008, filed O.P.No.4/2007 under Section 6 of the Kerala Panchayat Raj Act alleging that the petitioner, the Vice President of the Panchayat, is liable to be disqualified under Section 35(o) of the Act on the ground of being liable for the loss caused to the Panchayat. This allegation was raised on the basis that on 13/02/2006 & 15/03/2006, the petitioner received sitting fee for having attended the meeting of the Panchayat and also travelling allowance on the ground that he had WP(C) Nos.11637 & 11860/2008 -2- undertaken travel in his official capacity. 3. Similarly in WP(C) No.11860/2008 the allegation was that on 30/05/2006 & 12/06/2006, the petitioner therein, the President of the Panchayat, received sitting fee for having attended the meeting of the Panchayat and also received travelling allowance on the basis that he had undertaken travel in his official capacity. It is further alleged that he had received sitting fee for having attended the Panchayat Committee Meeting on 25/06/2006, while there was no such meeting it being a Sunday. 4. Evidence was adduced before the State Election Commission, and the State Election Commission by Ext.P7 order in WP(C) No.11637/2008 and Ext.P5 order in WP(C) No.11860/2008 held that the petitioners herein are liable for the loss caused to the Panchayat and were therefore, ordered to be disqualified under Section 35(o) of the Kerala Panchayat Raj Act. 5. The main contention raised by the learned senior counsel appearing for the petitioners is relying on Section 35 (o) of the Kerala Panchayat Raj Act itself, which provides that subject to the provisions of Section 36 or Section 102, a member shall cease to hold Office as such, if he is liable for the loss, waste or misuse WP(C) Nos.11637 & 11860/2008 -3- caused to the Panchayat. According to the learned senior counsel, the question of a member becoming liable for the loss arises only after audit under Section 215 is conducted. It is stated that in terms of Section 215(5), the auditors shall specify in the report under sub Section (4) all cases of loss caused to the Panchayat by negligence or misconduct of the authorities of the Panchayat. It is stated that only after an audit is conducted and the liability is fixed and proceedings are finalised, can alone a petition urging ground under Section 35(o) be filed. It is stated that in these cases, audit has not been conducted and therefore the finding of liability under Section 35(o) has been entered into by the State Election Commission without jurisdiction. 6. Although I have given my thoughtful consideration to the contention of the learned senior counsel appearing for the petitioners, I am unable to agree with him. A reading of Section 35 (o) shows that a member shall cease to hold office, if he is liable for the loss caused to the Panchayat. The power to declare a member disqualified under this section is conferred on the State Election Commission. Section 35(o) is one of the grounds available and therefore it is perfectly within the jurisdiction of the Commission to WP(C) Nos.11637 & 11860/2008 -4- decide as to whether the ground urged has been made out. 7. Further the applicability of Section 215 of the Kerala Panchayat Raj Act in a proceedings of this nature, has been urged before this Court in WP(C) No.2976/2010, and this contention has been dealt with and rejected by this Court in all manner, in the judgment dated 30/01/2010. Relevant part of the judgment reads as under:- “The last contention was with reference to Section 215 of the Kerala Panchayat Raj Act. Section 215 provides for accounts and audit. Sub Section 11 provides that an aggrieved person, may make an application to the District Court. Sub Section 13 provides that appeal against the order of the District Court will lie to the High Court. Learned counsel contended that unless in an audit as contemplated in Section 215 is held and that the audit report has attained finality, no proceedings under Section 35(o) will lie against a member. On a reading of Section 35, I am not able to infer such a conclusion. Section 35(o) only provides for subject to the provisions of Section 36, a member shall cease to hold office if he is liable for the loss caused to the Panchayat. Therefore, on an application made under Section 36, if the petitioner is able to substantiate his case that a member has caused loss to the Panchayat, the Election Commission is perfectly within its rights to entertain a plea under Section 35(o) of the Act. I also notice that under Section 34 providing for disqualification of candidates, sub Section (p) requires that a person should have been found liable for loss to suffer disqualification as provided there in. Therefore, the WP(C) Nos.11637 & 11860/2008 -5- terminologies in Section 34 and 35 being different, and in view of the only requirement of loss caused to the Panchayat as provided under Section 35(o), I am not in a position to accept this plea either.“ 8. I am also not impressed on the contention of the learned senior counsel appearing for the petitioners that realisation of loss and fixation of liability are the functions of the Ombudsman for Local Self Government Institutions, and therefore, unless in a proceedings before the Ombudsman, the liability is fixed, proceedings cannot be initiated under Section 36 of the Act. In my view, the reason which I assigned for rejecting the contention relying on Section 215 is an answer to this contention also. In the result, I do not find any merit in the contentions raised against the impugned orders. Therefore, these writ petitions are only to be dismissed and I do so. (ANTONY DOMINIC, JUDGE) jg