IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 WP(C).No. 25323 of 2009(I) -------------------------- PETITIONER(S): --------------- C.V.KURIAKOSE, AGED 39 YEARS S/O. VARGHESE, MEMBER, WARD NO.4, KAIPARAMBU GRAMA PANCHAYAT, THRISSUR DIST. RESIDING AT CHIRAMEL HOUSE, P.O. ANJOOR, MUNDUR, THRISSUR DIST. BY ADV. SRI.T.RAMPRASAD UNNI RESPONDENT(S): --------------- 1. THE KERALA STATE ELECTION COMMISSION THIRUVANANTHAPURAM. 2. SRI. SHAJU JOSE, S/O. JOSE, VOTER, WARD NO.4, KAIPARAMBA GRAMA PANCHAYAT THRISSUR, RESIDING AT THARAKAN HOUSE, ANJOOR VILLAGE, PUTTEKKARA DESOM THRISSUR DIST. 3. THE SECRETARY, KAIPARAMBA GRAMA PANCHAYAT, THRISSUT DIST. 4. STATE OF KERALA, REP. BY THE SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R1 BY SRI.MURALI PURUSHOTHAMAN, SC, R3 BY ADV.SRI.P.C.SASIDHARAN R4 BY GOVT. PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.25323/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE NOTICE DATED 21.4.2006 RECEIVED BY THE PETITIONER FROM R3. EXT.P2: TRUE COPY OF THE EXPLANATION DATED 24.4.2006 SUBMITTED BY THE PETITIONER BEFORE R3. EXT.P3: TRUE COPY OF THE PETITION FILED BY R2 BEFORE R1 (O.P.NO.16/06) EXT.P4: TRUE COPY OF THE WRITTEN STATEMENT DATED 18.7.2006 SUBMITTED BY THE PETITIONER BEFORE R1. EXT.P5: TRUE COPY OF THE ORDER DATED 29.8.2009PASSED BY R1 IN O.P.NO.16 OF 2006. EXT.P6: TRUE COPY OF THE RECEIPT DATED 13.9.2009 ISSUED BY R1. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.25323 OF 2009 ------------------------------------------- Dated this the 8th day of December, 2009 JUDGMENT 1.Elected to be a member of the Kaiparamba grama panchayat, the petitioner became a member of the standing committee of that panchayat, for welfare. He stands declared as disqualified in terms of Section 35(k) of the Kerala Panchayat Raj Act, 1994, hereinafter referred to as 'the Act'. Ext.P1 notice was issued to him by the secretary of the panchayat informing him about he having incurred such disqualification. 2.Thereafter, the second respondent, a voter, filed Ext.P3 petition before the Election Commission seeking a declaration that the writ petitioner is disqualified on account that he had absented himself without permission of the panchayat from the meetings of the standing committee for welfare for a period of three consecutive months. The allegation in that petition was that the writ petitioner did not attend the meetings held on WPC.25323/09 2 13.1.2006, 24.2.2006 and 28.3.2006 in spite of due notice. In his objections before the Commission, the writ petitioner contended that the notice of the meeting held on 28.3.2006 was received by him on 29.3.2006 and the meetings dated 13.1.2006 and 24.2.2006 were not with proper notice and therefore, the said meetings have to be declared as illegal. 3.Both sides adduced evidence before the Commission. This included the testimony of the second respondent herein as PW1, the secretary of the panchayat as PW2, its president as PW3 and the president of the standing committee for welfare as PW4 as also PW5, Smt.Radha, who was the U.D.Clerk in the establishment. On the side of the writ petitioner, he gave evidence as RW1. Exts.P1 to P19 were marked on the side of the second respondent herein and Exts.R1 to R4 were marked on the side of the writ petitioner. 4.With the aforesaid materials on record, the Commission noted that PW5 U.D.Clerk had made Ext.P10 complaint to the WPC.25323/09 3 president of the panchayat alleging that when the notice book regarding the meetings of the standing committee was taken to the writ petitioner at a later point of time, i.e., regarding the meeting dated 27.4.2006, the petitioner entered dates against his signatures regarding the notices for meetings dated 24.2.2006 and 28.3.2006. 5.Even going by the writ petitioner's amended objections (Ext.P4) filed before the Election Commission, the president of the standing committee for welfare was elected on 30.12.2005 and the first meeting thereafter was on 13.1.2006. In terms of Rule 5 of the Kerala Panchayat Raj (Standing Committee) Rules, 2000 the election of the members to the standing committees is by the elected members of the panchayat. In terms of Rule 10, the chairman of the standing committee for welfare is to be elected by the members of the standing committee for welfare. Sub rule 3 of Rule 10 provides that for the purpose of election of chairman of a standing committee, other than the standing committee for finance, the president of WPC.25323/09 4 the panchayat shall, as soon as may be, convene a meeting under his chairmanship. The writ petitioner admits that such election of the president of the standing committee for welfare was on 30.12.2005. - See Ext.P4. If that were so, Section 35(k) enjoins the incurring of disqualification if a member absents himself from the meeting of that standing committee for a period of three consecutive months. Therefore, the incurring of disqualification gets attracted when the member absented himself from the meetings of January, February and March of 2006. The word 'month', not being defined in the Act, has necessarily to take its meaning from the provisions of the General Clauses Act, which means month according to the British calendar. 6.The Commission had concluded on the basis of the materials on record, i.e., the oral and documentary evidence, that the standing committee for welfare had met on 13.1.2006, 24.2.2006 and 28.3.2006 and the petitioner had not attended in any of those meetings in spite of notice. The plea of the WPC.25323/09 5 petitioner to the contrary having been found against on facts, based on evidence, the question would be whether the materials warrant interference under Article 226 of the Constitution of India. 7.Before proceeding further, I may notice that the writ petitioner has placed Ext.P6 on record to show that the Commission had summoned the original of the notice book after the conclusion of trial and he has made out a case that relying on such materials, to hold that the petitioner had manipulated the records, would be unwarranted and without notice to him. It is true that the Commission had summoned the original of the notice book only after conclusion of trial. The Commission, in the impugned order, has criticised the petitioner of having made interpolations in places where his signatures appeared in relation to notice for meetings dated 24.2.2006 and 28.3.2006. A perusal of the original notice book, which is now available among the records of the Commission, does not wholly rule out the possibility of the conclusion arrived at by WPC.25323/09 6 the Commission. But it has to be necessarily cautioned that such an approach may affect the credibility of the decision making process. 8.But the fact of the matter remains that neither the Commission nor this Court even had to look into the original notice book. This is because, on the basis of the materials on record, the Commission accepted the version of PW5 Radha that while she took the notice book to the petitioner at a later point of time, he made changes to the earlier entires. I have read her deposition. There is no suggestion, even in cross examination, challenging the credibility or veracity of the said witness or attributing her with any ill-motive loaded against the writ petitioner. The other materials on record, including Ext.P10 complaint by the said witness PW5, to the president, as also the statement registered with the police lent sufficient corroboration to conclude on preponderance of probabilities, quite safely, that the writ petitioner had manipulated the records as found by the Commission. The said finding does not WPC.25323/09 7 necessarily depend upon the entries in the original of the notice book. Those findings in the realm of legitimate inferences would even otherwise stand. 9.The holding of the three meetings having been proved and the absence of the writ petitioner from those three meetings not being disputed, the materials on record abundantly show that the findings of the Commission on facts, cannot be criticised as unsustainable or unavailable on records. For the aforesaid reasons, this writ petition fails. The same is accordingly dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.9/12.