IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WP(C).No. 34755 of 2007(K) -------------------------------------- PETITIONER: ------------------- SHEEBA.K.P. PRESIDENT, KAYANNA GRAMA PANCHAYATH KOZHIKODE. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: ----------------------- 1. STATE OF KERALA REP. BY ITS SECRETARY LOCAL SELF GOVERNMENT, SECRETARIAT THIRUVANANTHAPURAM. 2. THE SECRETARY, OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS VANCHIYOOR P.O., THIRUVANANTHAPURAM. 3. M. RESHIKESAN, MADATHIL HOUSE KAYANNA BAZAR, KOZHIKODE. *ADDL. R4 IS IMPLEADED. 4. MR.GEORGE VETTIKATTU, PANCHAYATH MEMBER, KAYYANNA GRAMA PANCHAYATH, KAYYANNA P.O., KOZHIKODE DIST. *ADDL. R4 IS SUO MOTU IMPLEADED AS PER ORDER DT. 15.1.08. BY ADV. SRI.GEORGE MECHERIL - R3 GOVERNMENT PLEADER SMT. K.R.DEEPA SRI.V.RAJENDRAN - R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2008 , ALONG WITH WPC NO. 8090 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 34755/2007 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE RELEVANT EXTRACT OF THE MINUTES BOOK. EXT.P2:- COPY OF THE LETTER ISSUED BY THE GOVERNMENT DT. 5.1.06. EXT.P3:- COPY OF THE JUDGMENT IN WPC. NO.30715/2005. EXT.P4:- COPY OF THE INTERIM ORDER IN WPC. NO.6096/06. EXT.P5:- COPY OF THE ORDER IN OP. 636/2006 ISSUED BY THE OMBUDSMAN. EXT.P6:- COPY OF THE JUDGMENT IN WPC. 6096/06. EXT.P7:- COPY OF THE G.O.(RT) NO.3056/2007/LSGD DT. 12.11.07. RESPONDENT'S EXHIBITS EXT.R3(a):- COPY OF THE CIRCULAR NO.46013/N1/05 LSGD DT. 17.10.05. EXT.R3(b):- COPY OF THE COMMUNICATION RECEIVED FROM THE SECRETARY DT. 7.11.05. EXT.R3(c):- COPY OF THE PETITION DT. 26.10.05 ISSUED TO THE PRESIDENT, KAYANNA GRAMA PANCHAYATH. EXT.R3(d):- COPY OF THE PETITION DT. 26.10.05 ISSUED TO THE PRESIDENT, KAYANNA GRAMA PANCHAYATH. EXT.R3(e):- COPY OF THE REPRESENTATION DT. 27.10.05 SUBMITTED BEFORE THE SECRETARY LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. EXT.R3(f):- COPY OF THE NOTICE BY THE SECRETARY KAYANNA GRAMA PANCHAYATH TO CONVENE A MEETING ON 31.10.2005. EXT.R3(g):- COPY OF THE PETITION FAXED TO THE SECRETARY, LOCAL SELF GOVERNMENT , THIRUVANANTHAPURAM ON 31.10.2005. /TRUE COPY/ P.A. TO JUDGE tss ANTONY DOMINIC, J. ---------------------------------------------------------- W.P.(C) Nos.34755 OF 2007 & 8090 OF 2008 ------------------------------------------------------------ Dated this the 29th day of May, 2008 J U D G M E N T ~~~~~~~~~~~ Prayer in W.P.(C) No.34755/2007 is to quash Ext.P7, an order passed by the 1st respondent perpetrated to be in pursuance to Ext.P6 judgment of this Court. The same order is produced as Ext.P4 and is sought to be quashed. 2. Petitioner in W.P.(C) No.34755/2007 is the President of Kayanna Grama Panchayat and the dispute in this writ petition concern the election to the Standing Committee for Development. After the Panchayat election, the President convened a meeting of the committee on 26.10.2005 for election to the the standing committees of the Panchayat in terms of the provisions contained under Section 162 of the Panchayat Raj Act. Ext.P1 shows that the modality of the election was explained by the President and in terms thereof election was conducted and three members were declared elected to the standing committee. 3. Thereafter, on 15.1.2006 the 1st respondent issued Ext.P2 directing cancellation of the election and nomination of W.P.(C) No.34755/2007 & connected cases. 2 the persons mentioned therein and further directing that the matter shall thereafter be intimated to the 1st respondent. The election was challenged by the 3rd respondent in W.P.(C) No.34755/2008 by filing W.P.(C)No.30715/2005 and that writ petition was dismissed by this Court by Ext.P3 judgment. Since in the meanwhile Ext.P2 was issued. It was accepted that nothing survived thereafter be adjudicated in that writ petition. 4. Thereafter, the petitioner filed W.P.(C).No.6096/2006 challenging Ext.P2 and that writ petition was disposed of by Ext.P6 judgment. By Ext.P6 judgment, Ext.P2 was quashed on the limited ground that the same was issued without hearing the petitioner and it was directed that a fresh decision in the matter shall be taken with notice to the petitioner and also the 4th respondent. The applicability of Section 191 of the Panchayat Raj Act was also directed to be examined by the Government. It is stated in the meanwhile the election as per Ext.P1 was challenged by the 4th respondent by approaching the Ombudsman, who by Ext.P5 order had declined to interfere for want of jurisdiction. W.P.(C) No.34755/2007 & connected cases. 3 5. Following Ext.P6 judgment of this Court, the Government heard the parties and issued Ext.P7. Ext.P7 shows that the Government had referred the matter to the Ombudsman for advise and that the Ombudsman by order dated 22.7.2007 upheld the direction issued by the Government in Ext.P2. It was acting upon the advise so tendered by the Ombudsman, the Government issued Ext.P7 declaring the election as per Ext.P1 to be illegal. It is also found in the impugned order that this Court in Ext.P3 judgment had declared the election to be invalid. On these basis the petitioner was directed to declare the persons mentioned there as elected into the standing committee. It is in this background, challenging Ext.P7, this writ petition is filed by the petitioner before this Court, seeking he reliefs mentioned earlier. 6. Learned counsel for the petitioner would argue that the Ombudsman had upheld Ext.P2 order which was already set aside by this Court in Ext.P6 judgment. It is also pointed out that the assumption that this Court in Ext.P3 judgment had set aside the election is also incorrect. On this basis, learned counsel would submits that Ext.P7 deserves to be set aside. On the other hand, learned counsel for the 3rd respondent argue that evidently in W.P.(C) No.34755/2007 & connected cases. 4 Ext.P4 though the procedure of election adopted was correct, the manner in which the results were declared was incorrect and therefore, irrespective of the entire controversy between the parties, the situation should be remedied by a fresh declaration of results in terms of Kerala Panchayat Raj Standing Committee ( Rules) and Ext.R3(a) circular. 7. The 4th respondent who has filed W.P.(C)No.8090/2008 also impugned Exts.P7 which is provided as Ext.P4, mainly on the ground that though he is the affected party, the said order was passed without notice to the him. 8. Having considered the submissions made by the respective counsel, I feel the issue lies in a narrow compass in as much as the question is whether the Ext.P6 judgment has been complied with in the true sense. 9. As already noticed, Ext.P6 directed the Government to take a fresh decision with notice and hearing the affected parties. Ext.P7 is the decision taken. As contended by the counsel for the petitioner in W.P.(C)No.34755/2007, the said decision has been W.P.(C) No.34755/2007 & connected cases. 5 taken mainly on the basis of the advise tendered by the Ombudsman, upholding Ext.P2 which was already set aside by this Court in Ext.P6 judgment. If that be so, there is absolutely no substance in the advise given by the Ombudsman upholding a non existent order. That part, the inference that in Ext.P3 judgment, the election was set aside by this Court is again factually in correct and unsustainable. Since it is passed without notice to the affected party, the petitioner in W.P.(C)No.8090/2008, in passing the same, not only natural justice is not complied with, but also the direction in the judgment stands disobeyed. 10. Therefore, both the reasonings contained in Ext.P7 order issued by the Government cannot be upheld. Necessarily therefore Ext.P7 deserves to be set aside. 11. I cannot accept the plea of the learned counsel for the 3rd respondent that the situation can be remedied by a fresh declaration of results in terms of the statute and the circular. This is for the reason that the 3rd respondent was also a party to Ext.P6 judgment and therefore he is equally bound to by the direction issued by the learned single judge. Therefore, at this W.P.(C) No.34755/2007 & connected cases. 6 stage, it is not open to the 3rd respondent to plead that irrespective of the directions issued, yet another method can now be adopted and justice can be done. 12. I am satisfied that Ext.P7 deserves to be set aside and I do so. The 1st respondent is directed to reconsider the matter as directed in Ext.P6 judgment, in W.P.(C)No.6090/2006, with notice to all concerned including the petitioner in W.P.(C)No.8090/2008. This shall be done by the 1st respondent, as expeditiously as possible, at any rate, within six weeks from the date of production of a copy of this judgment. 13. Petitioner shall produce a copy of this judgment before the 1st respondent for compliance. The writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) ps