IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 11494 of 2008(R) ------------------------------------------ PETITIONER(S): -------------------------- VINODKUMAR, VOTER, WARD NO.14, KODUVALLY GRAMA PANCHAYATH, KOZHIKODE. BY ADV. MR.P.V.KUNHIKRISHNAN RESPONDENT(S): --------------------------- 1. C.P. FAIZAL, EX-MEMBER, KODUVALLY GRAMA PANCHAYATH, KOZHIKODE. 2. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. R1 BY MR.K.RAMAKUMAR, SENIOR ADVOCATE, MR.T.RAMPRASAD UNNI, MR.M.H.HANIS. R2 BY ADV.MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2009, THE COURT ON 26/11/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.11494/2008 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 27/03/2008 IN O.P.NO.63/2007 OF THE 2ND RESPONDENT. P2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DTD. 28/03/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.11494 of 2008-R = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 26th day of November, 2009. JUDGMENT “CR” 1.The petitioner is a voter in Ward No.14 of Koduvally Grama Panchayat. A petition filed by him before the Kerala State Election Commission seeking an order that the first respondent is disqualified stands allowed as per Ext.P1 order. Today, vide separate judgment, that order has been confirmed. Petitioner seeks a direction to the Commission that in view of Ext.P1, the Commission ought to have further declared that the first respondent is disqualified and is not qualified to be chosen in the Panchayat at any level in view of Sections 29(f) and 34(1)(n) of the Kerala Panchayat Raj Act, 1994. 2.Section 29(f) of the Act provides that a person shall not be qualified for being chosen to fill a seat in a Panchayat at any level unless he has WPC11494/08 -: 2 :- not been disqualified under any other provision of the Act. That provision gets automatically attracted when a member is disqualified in terms of Section 35(1) of the Act. The incurring of the disqualification under Section 35(1)(q) is automatic because, Section 35(1) opens by saying that a member shall cease to hold office as such, if he has failed to file declaration of his assets within the time limit prescribed under Section 159. Section 34(1)(n) states that a person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, if he is disqualified under any other provision of the Act. 3.Section 36(1) provides for filing a petition before the State Election Commission for decision on a question as to whether a member has become disqualified under Section 35 except clause (n) thereof. The provision in sub-section 2 of Section 36 empowering the Commission to pass an interim order as to whether a member may continue in office or not till a decision is taken on the WPC11494/08 -: 3 :- petition filed under Section 36(1), abundantly enforces the above conclusion that the effect of disqualification under Section 35(1)(q) is automatic. This is why Section 35 or 36 does not, in any manner, make the disqualification conditional on any declaration or direction by the Commission. For the aforesaid reasons, the consideration of Ext.P2 petition by the Commission is unnecessary because, the law takes its course and the statutory consequences referable to Section 29(f) and 34(1)(n) are automatic and run along with the incurring of the disqualification under Section 35(1)(q). The first respondent would, therefore, stand disqualified in terms of Sections 29(f) and 35(1)(n) also. It is so declared. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, JUDGE. Sha/2511 “35(1)(n)” occurring in the last line in the WPC11494/08 -: 4 :- last paragraph of the judgment dated 26/11/2009 in WP(C) 11494/2008 is corrected and substituted as “34(1)(n)” vide order dated 21/12/2009 in I.A 15841/2009. Sd/- Registrar (Judicial)