IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WP(C).No. 38290 of 2007(G) -------------------------- PETITIONER: ------------ THE PRESIDENT, VAKATHANAM GRAMA PANCHAYATH, VAKATHANAM, KOTTAYAM DISTRICT. BY ADV. SRI.MOHAN JACOB GEORGE SMT.P.V.PARVATHI SMT.REENA THOMAS SRI.L.RAM MOHAN RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL ADMINISTRATION DEPARTMENT (E.M.), SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY, VAKATHANAM GRAMA PANCHAYATH,VAKATHANAM, KOTTAYAM-688 538. 3. SRI.JOSEPH CHACKO, UDIYIL VEEDU,VAKATHANAM P.O.,, KOTTAYAM. 4. KERALA STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695 033, BY ADV. SRI.V.K.SUNIL SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 38290 OF 200 ----------------------------------------------- DATED THIS THE 29TH JANUARY, 2008 J U D G M E N T The President of the Grama Panchayath impugns in this writ petition Ext.P9 order issued by the Government staying the operation of the decision of the Panchayath not to restore the membership of the third respondent in the committee of the Panchayath which he had forfeited on account of his failure to attend standing committee meetings of the committee for three consecutive months entailing a disqualification under the Panchayath Raj Act. The petitioner relies on Exts.P1, P1(a) and P1(b), Ext.P2 series, Ext.P3, P3(a) and P3(b) to show that the third respondent had failed to attend three standing committee meetings consecutively. Ext.P4 is copy of the notice which was issued by the Secretary of the Panchayath under Section 37(2) of Act 13/94 intimating the third respondent that he had forfeited his membership due to the operation of Section 35(k) of the said Act. Ext.P5 is the copy of the clarification issued by the 4th respondent, Kerala State Election Commission directing issuance of notice under Section 37(2) of the Act. The petitioner points out that if the third respondent disputes or contests his disqualification under Section 35 (k), he has to prefer an appeal under Section 36 of the Act before the WP(C)No.38290/2007 -2- State Election Commission. Instead of preferring such an appeal what he did was to file an application before the Panchayath seeking restoration of his membership and Ext.P6 is the decision of Panchayath rejecting the application of the third respondent. In the meanwhile the State Election Commission commenced the bye- election process to the third respondent's ward which had fallen vacant. Ext.P8 is copy of the notification issued by the Election commission. But after the election Commission commenced the bye- election process, the third respondent approached the Government and the Government issued Ext.P9 order temporarily restoring the membership of the third respondent. Impugning Ext.P9 order on various grounds, this writ petition has been filed. 2. A detailed counter affidavit justifying Ext.P9 is filed by the third respondent to which reply affidavit has been filed by the petitioner. On behalf of the State Election Commission, the standing counsel has filed a detailed statement. Extensive arguments were addressed before me by the learned counsel for the parties, Sri. Mohan Jacob George,learned counsel for the petitioner, Sri Murali Purushothaman, standing counsel for the 4th respondent and Sri.V.K.Sunil, counsel for the third respondent. My attention was WP(C)No.38290/2007 -3- drawn to my judgment in W.P.(C)No.27485/2007 filed by the third respondent before this Court and it was pointed out that before this Court the third respondent had submitted that he elects remedy before the Election Commission rather than his remedy before the Panchayath for seeking restoration of the membership. The learned counsel Sri.Mohan Jacob George cited the judgment of Justice Thottathil B.Radhakrishnan in Giji Mathew v. kerala State Election Commisison, 2006(3)K.L.T.141, judgment of the Division Bench of this Court in Rajan v. Kerala State Election Commission, 1999(3) K.L.T.601, judgment of this Court in Gopi v. Maneed Grama Panchayat, [2002 (2)K.L.T.753]. In support of the submissions. Sri. Murali Purushothaman, learned standing counsel relied on the judgment of the Division Bench in V.Anil Kumar v. Kerala State Election Commission, 2007(2)K.H.C.273. He also drew my attention to the judgment in Rajan's case(supra). It was the judgment of the Division Bench in Rajan's case i.e. certain observations was highlighted before me by Sri.V.K.Sunil. 3. Having considered the rival submissions addressed at the bar, I am of the view that the Government was not justified in issuing Ext.P9. At the same time, taking into account the circumstances that WP(C)No.38290/2007 -4- the 3rd respondent was elected by a fairly good margin of votes and the circumstance that his trac record then his record as a member of Panchayath indicates that he was otherwise taking very active interest in the affairs of the Panchayath, I am inclined to grant him an opportunity to move the Election Commissioner. In fact my mind was revealed to the counsel appearing for the parties and the learned standing counsel for the Election Commission submitted that this Court directs so election commission will not have objection in entertaining a petition by the 3rd respondent seeking adjudication of the question of third respondent's liability for disqualification on account of Section 35(k) of the Act. I was informed that in the light of my submissions, the needful will be done to stop the bye-election process. The writ petition, therefore, is disposed of issuing the following directions: 4. The third respondent is directed to file an O.P. under Section 36 of the Kerala Panchayath Raj Act before the State Election Commission. If an O.P.is filed by the third respondent before the 4th respondent within two weeks from today, the State Election Commission will entertain the petition and dispose of the same in accordance with law with notice to the Panchayath and the third WP(C)No.38290/2007 -5- respondent. Such disposal shall be made at the earliest, at any rate within three months of the Election Commission registering the O.P. It is made clear that this judgment is not to be quoted as a precedent for future guidance and the order is being issued only in view of the peculiar facts and circumstances attending on this case. Considering the above direction, the Election Commission is directed to stop bye- election process at this stage subject to the decision which may be taken by the Election Commission on all questions including the question of disqualification of the third respondent. Exts.P9 and R3(a) proceedings before the Government are hereby quashed. (PIUS C.KURIAKOSE, JUDGE) ks. WP(C)No.38290/2007 -6- WP(C)No.38290/2007 -7-