IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WA.No. 753 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.10053/2010 Dated 16/04/2010 .................... APPELLANT/ RESPONDENT NO.5 IN WPC ------------------------------------ RAJAN KANNATH, CHAIRMAN, CHENGANNUR MUNICIPALITY, CHENGANNUR. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM RESPONDENTS/PETITIONER&RESPONDENTS 1 TO 4: ------------------------- 1. P.R.PRADEEP KUMAR, COUNCILOR, WARD NO.6, CHENGANNUR MUNICIPALITY, RESIDING AT MADANASSERIL, IDANADU P.O. 2. CHENGANNUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, CHENGANNUR. 3. THE SECRETARY, CHENGANNUR MUNICIPALITY, CHENGANNUR. 4. P.M.MOHAMMED ALI, REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS, SOUTHERN REGION, KOLLAM. 5. THE KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF KERALA STATE ELECTION COMMISSION, PALAYAM, THIRUVANANTHAPURAM. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R5 SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R1 SRI.R.T.PRADEEP FOR R1 SRI.V.VIJULAL FOR R1 ADV. SRI.B.GOPAKUMAR FOR R2&3 ADV. SRI.A.V.M.SALAHUDEEN FOR R4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/07/2010 ALONG WITH WA NOS.756, 876 & 890 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.R. C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... Writ Appeal Nos.753,756,876 & 890 of 2010 .................................................................... Dated this the 2nd day of July, 2010. JUDGMENT Ramachandran Nair, J. The four connected Writ Appeals are filed against common judgment of the learned Single Judge disposing of two Writ Petitions filed by two Councilors of the Chengannur Municipality. The orders challenged in the W.P.(C)s were the proceedings issued by the Returning Officer declaring the no confidence motion moved against the Chairman of the Municipal Council, the appellant in Writ Appeal Nos.753 and 756 of 2010, as defeated and also the proceedings of the Secretary of the Municipality declaring both the petitioners in the W.Ps. as ceased to be members of the Council by virtue of operation of Section 91(k) of the Kerala Municipality Act, 1994 (hereinafter called "the Act"). The learned Single Judge allowed the Writ Petitions vacating the impugned proceedings issued by the Returning Officer and the Secretary of the Society. Further direction issued was to hold fresh W.A. 753,756,876&890/10 2 meeting of the Council members to move the no confidence motion against the present Chairman, the appellant in the two Writ Appeals mentioned above. While disposing of the Writ Petitions, the learned Single Judge made adverse remarks against the Returning Officer on his complicity in the matter and in order to expunge the adverse remarks against him the Returning Officer has filed Writ Appeals Nos.876 and 890 of 2010. We have heard Senior counsel Sri.Kurian George Kannanthanam appearing for the appellants in W.A. Nos.876 & 890 of 2010, Adv. Sri.A.V.M.Salahuddeen, counsel appearing for the appellants in W.A. Nos.753 & 756 of 2010, Standing Counsel appearing for the State Election Commission, Adv. Sri.B.Gopakumar, appearing for the Chengannur Municipality and counsel appearing for the contesting respondents namely, the petitioners in the W.P.(C)s. 2. The facts leading to the controversy are the following. The Municipal Council was constituted after the election in the year 2005. The appellant in Writ Appeal Nos.753&756 of 2010 was elected as Chairman of the Council in the year 2007. However, on account of a shift in the political loyalties of some of the members, the said W.A. 753,756,876&890/10 3 appellant is said to have lost majority support in the Council. Consequently a no confidence resolution was moved by some of the members which was said to be in accordance with the procedure prescribed. The Returning Officer appointed issued notices to all members of the Municipal Council based on list furnished by the Secretary of the Municipality and 15.3.2010 was fixed the date for moving the no confidence motion. In between, one of the members issued lawyer notice to the Secretary stating that some of the members have lost their membership by virtue of the operation of Section 91(k) of the Act in as much as they have continuously been absent in attending meetings of the Council as well as in Standing Committees for periods and number of meetings in excess of limits prescribed under the said provision. Based on the action initiated by one of the Council members, the Secretary appears to have found five members as disqualified. While both the petitioners in the W.Ps. contend that they have not been served with any proceedings of disqualification, one of them i.e. petitioner in W.P.(C) No.9468/2010, has obtained a copy of the notice from the Secretary of the Municipality under the Right to W.A. 753,756,876&890/10 4 Information Act and has produced the same as Ext.P5 in the W.P.(C). According to the said Councilor, Ext.P5 discloses that the disqualification if any was suffered by him during 2006 and 2007 and the same has no relevance so far as his right to take part in the no confidence motion to be moved on 15.3.2010 because for all the meetings after suffering the so-called disqualification, he was allowed to participate and vote in the proceedings of the Council. Inspite of the stand taken by the Secretary of the Municipality that five members have suffered disqualification, the Secretary still chose to include those persons in the list of Council members furnished to the Returning Officer, which led to his issue of notice to all of them to participate in the no confidence motion. During no confidence motion, the Returning Officer based on the Secretary's recommendation declined permission to the five members to participate in the no confidence motion which led to others boycotting the meeting. The problem that cropped up in the said meeting led to involvement of Police for restoring peace. Ultimately in the no confidence motion only one person participated i.e. the Chairman against whom no confidence motion was moved. W.A. 753,756,876&890/10 5 Even though all except the Chairman against whom no confidence motion was moved did not participate in the voting and they walked out, the Returning Officer still declared the no confidence motion as defeated. The learned Single Judge adversely commented upon the conduct of the Returning Officer and allowed the W.P.(C)s. by directing holding of fresh meeting of the Council for moving the no confidence motion and simultaneously declared that there is no disqualification for the petitioners from participating in the no confidence motion as there is deemed restoration of their membership under Section 93(2) of the Act. 3. During hearing we were told that out of the five persons declared disqualified, the Council later restored the membership of three of them in the next meeting itself on their application in terms of Section 93(2) of the Act and so much so, they have no grievance. Two questions, therefore, remain to be considered, first of which is whether the learned Single Judge was justified in holding that the proceeding of the Returning Officer declaring the no confidence motion as defeated is illegal and unsustainable. The second one is whether the learned W.A. 753,756,876&890/10 6 Single Judge was justified in holding that there is a deemed restoration of membership of the two writ petitioners by virtue of operation of Section 93(2) of the Act. 4. Senior counsel appearing for the Chairman of the Council against whom no confidence motion was moved contended that the finding of the learned Single Judge with regard to deemed restoration of membership of the two writ petitioners under Section 93(2) of the Act is not tenable. Adv. Sri.Nagaraj Narayan and Adv. Sri.R.T.Pradeep, counsel appearing for the two writ petitioners, the contesting respondents in the Writ Appeals, contended that no valid notice or proceedings was issued to them by the Secretary of the Municipality about the disqualification under Section 91(k) in terms of Section 93(2) and so much so, they have not suffered any disqualification at all. Therefore, they alternately pleaded that even if the finding of the learned Single Judge with regard to restoration of membership is not upheld by this court, still they are entitled to continue as members because they have not lost membership in the Council on account of the failure of the Secretary in issuing intimation W.A. 753,756,876&890/10 7 to them and to the Council in terms of Section 93(2) of the Act. In the first place, in order to appreciate the contentions, we extract herein the relevant provisions of the Act namely, Sections 91(k) and 93(2) of the Act. "91. Disqualification of Councilors:- Subject to the provisions of Section 92 or Section 178, a Councilor shall cease to hold office as such if he-- ......... (k) absents himself without the permission of the Municipality concerned from the meetings of the council of the Standing Committee as the case may be, for a period of three consecutive months reckoned from the date of the commencement of his term of office, or of the last meeting which he attended, or of the restoration to a office, as member under sub-section (1) of Section 93, as the case may be or if within the said period of three months, less than three meetings have been held, absents himself from three consecutive meetings held after the said date: .......... 93. Restoration of Councilors:- (1) ....... (2) Where a person ceases to be a Councilor under clause (k) of Section 91, the Secretary shall at once intimate the fact in writing to such person and report the same to the Council, at its next meeting. If such person applies for W.A. 753,756,876&890/10 8 restoration to the Council on or before the date of its next meeting or within fifteen days of the receipt by him of such intimation, the Council may at the meeting next after the receipt of such application restore him to his office of Councilor; Provided that a Councilor shall not be restored more than once during his term of office." We are in complete agreement with the finding of the learned Single Judge that on the happening of the events referred to in Section 91(k), the Councilor involved will suffer the disability i.e. cessation of membership in the Council. However, what is clear from the operation of Section 93(2) is that the cessation of membership of the Council will take effect only after Secretary intimates the fact in writing to such Councilor and the matter is reported to the Council. It is specifically provided in Section 93(2) that intimation of cessation of membership by Secretary should be given at once which obviously means not when the same is noticed by the Secretary, but when the event has happened. In fact, unless the Secretary verifies the attendance register soon after holding of the meetings of the Council and Standing Committees, the Secretary will not be able to comply with Section 93(2) because W.A. 753,756,876&890/10 9 cessation of membership under Section 91(k) is only on account of the absence in consecutive meetings of the Council or the Standing Committee as the case may be. Admittedly, the Secretary failed to discharge his duties under Section 93(2) which is evident from Ext.P5 produced in W.P.(C) No.9468/2010, wherein the finding of the Secretary is that disqualification happened to that particular Councilor in the year 2006 and repeatedly in the year 2007. Going by Section 93 (2) even if the first absence was condoned by the Council, that member would have lost his membership permanently as there is no provision for restoration of membership a second round for disability suffered under Section 91(k) of the Act. Not only that the Secretary failed to bring to the notice of the Councilor concerned about the cessation of membership suffered on account of absence in terms of Section 91(k) of the Act, the said member was allowed to participate in all successive meetings and was treated as a member althrough until the date on which no confidence motion was moved. We are of the view that though cessation of membership happened on account of the absence in terms of Section 91(k), such cessation of membership takes effect only W.A. 753,756,876&890/10 10 if and after the Secretary complies with the requirements of Section 93 (2) of the Act, that is, intimation of cessation of membership to the member concerned and to the Council. In other words, in the absence of proceedings under Section 93(2) by the Secretary either suo moto or on request by anybody declaring cessation of membership, no member of the Council ceases to be a member by virtue of the operation of Section 91(k). We are also not able to accept the proposition laid by the learned Single Judge that permission to participate in the subsequent meeting will give rise to a presumption that there is a deemed restoration of membership by the Council to such member. Logically the view taken by the learned Single Judge is quite acceptable, but the disability for a member from restoration of membership more than once for violation of Section 91(k) will not justify any such presumption of deemed restoration of membership each time it is lost. For example, in the case of petitioner in W.P.(C) No.9468/2010 if the facts stated by the Secretary are correct, he has suffered cessation of membership on two occasions and on the second time he has no right to seek for restoration of membership by virtue of W.A. 753,756,876&890/10 11 prohibition contained under Section 93(2) of the Act. So much so, deemed restoration of membership does not apply atleast for a second time. However, we have already held above that there is no loss of membership for the absence of Councilors in terms of Section 91(k) unless it is detected and declared without any delay by the Secretary under Section 93(2) which admittedly has not happened in this case. In our view, the delay in detection and declaration under Section 93(2) by the Secretary will be fatal to the proceeding. The responsibility of the Secretary under Section 93(2) is mandatory in nature and in order to treat a person as having been ceased to be a member of the Council, the member concerned and Council are entitled to notice of the proceeding under Section 93(2). The compulsory notice referred to therein to the member concerned implies that member will be able to demonstrate before the Secretary and failing which before the Council that he has not ceased to be a member in terms of Section 91(k) of the Act. In fact, request for restoration of membership in the next meeting arises only if the Council is satisfied that the Secretary's declaration of cessation of membership under Section 93(2) is correct under Section 91(k) of the W.A. 753,756,876&890/10 12 Act. Counsel appearing for the writ petitioners referred to Section 5 (25) of the Act and submitted that any proceeding to be served by the Secretary under Section 93(2) should be through registered notice. We find force in this contention because in the first place, there is no evidence as to whether the Secretary has served proceedings under Section 93(2) to the members. Secondly, the proceeding issued to the petitioner in W.P.(C) No.9468/2010 shows that it was issued on 6.3.2010 and was served through post on the very same date on the member concerned. As rightly pointed out, prima facie this cannot be a proceeding sent by registered post because a registered post normally cannot be served on the same day. Either the Secretary should personally serve the proceedings on the member under acknowledgement or issue proceedings through registered post. Writ petitioners have also made allegation that the mandatory requirement of serving the proceedings of cessation of membership to the Council was not complied with by the Secretary. We are inclined to accept this contention also because the Chairman of the Council namely, the appellant in W.A. Nos.753&756/2010, himself has not produced copy W.A. 753,756,876&890/10 13 of the proceedings served on the Council by the Secretary in terms of Section 93(2) of the Act. Above all, what is clear from Ext.P5 produced in W.P.(C) No.9468/2010 is that cessation of membership was suffered by the said member in 2006 and 2007. As already found by us, the Secretary of the Municipality cannot declare disability that happened two to three years back in 2010, that too, when a no confidence motion was moved by some of the members. In view of the view taken by us about the mandatory requirement of Section 93(2) which the Secretary failed to comply with in time, we are not inclined to uphold the cessation of membership of the writ petitioners found against them by the Secretary. We, therefore, uphold the judgment of the learned Single Judge that the said two writ petitioners have not ceased to be members of the Council, though not for the reasons stated by the learned Single Judge, but for the reason of non-compliance of requirements of Section 93(2) by the Secretary i.e. failure to give intimation to the member concerned and to the Council in time. 5. In W.A. Nos.876&890/2010 appellant is the Returning Officer who has filed the appeals for expunging the adverse remarks made W.A. 753,756,876&890/10 14 against him by the learned Single Judge. The finding is that he has colluded with the Chairman to defeat the no confidence motion. Counsel appearing for the appellant contended that the Returning Officer has no role with regard to the disqualification of members and he was only conducting the meeting for the members to move the no confidence motion. We notice that adverse observation is made by the learned Single Judge because all the members were not allowed to participate in the no confidence motion. In other words, the Returning Officer declined five Councilors from participating in the meeting because of the disqualification imposed on them by the Secretary. We notice that those who have ceased to be members for the first time could make application before the Council for restoration of membership under Section 93(2) of the Act. In our view, prior to moving the no confidence motion, the members who have ceased to be so could make application for restoration of membership under Section 93(2) of the Act. If this was done as a first step in the Council prior to moving the no confidence motion, the problem could have been sorted out. In fact, in the next meeting membership of three persons was W.A. 753,756,876&890/10 15 restored. We, therefore, notice that the mistake on the part of the Returning Officer was only in not advising the Council to hold a meeting to consider the request of the members who have ceased to be so to restore their membership. The failure of the Returning Officer and the Secretary in this regard prove their ignorance of law which cannot be presumed and, therefore, their interest in getting the no confidence motion defeated. Writ Appeal Nos.876 & 890 of 2010 are allowed in part by vacating the observation made by the learned Single Judge against the Returning Officer, but by retaining the above observation not only against him but against the Secretary as well. Since we have found that the two writ petitioners have not ceased to be members, Writ Appeal Nos.753 & 756 of 2010 are disposed of directing the Returning Officer to convene the meeting afresh at the earliest and in any case within 15 days from today, by granting minimum notice period and allow the no confidence motion to be moved in the Council meeting treating the petitioners in W.P.(C) Nos.9468 and 10053 of 2010 also as members. Counsel appearing for the State Election Commission will W.A. 753,756,876&890/10 16 communicate this decision orally to the Returning Officer without waiting for copy of the judgment. C.N.RAMACHANDRAN NAIR Judge P.S.GOPINATHAN Judge pms