IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 19TH AUGUST 2008 / 28TH SRAVANA 1930 WP(C).No. 11886 of 2008(M) --------------------------------------- PETITIONERS: --------------------- P.T. KARTHIKEYAN, MEMBER, WARD NO.9 CHOTTANIKKARA GRAMA PANCHAYATH, ERNAKULAM. BY ADV. SRI.C.HARIKUMAR. RESPONDENTS: ------------------------ 1. STATE ELECTION COMMISSIONER, KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. DY. DIRECTOR OF PANCHAYATS, DIRECTORATE OF PANCHAYAT, THIRUVANANTHAPURAM. 3. JOHN MULLANTHOTTI @ M.A.JOHN, S/O.ABRAHAM, AGED 57, MUREEKAL HOUSE, KUZHIYARA P.O., THALAKKOD, CHOTTANIKKARA VIA., ERNAKULAM. GOVT. PLEADER SRI. K.V. MANOJ KUMAR FOR R2, ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1, ADV. SRI. S. SREEKUMAR FOR R3. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.11886/2008-M: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE O.P.10/07 FILED BEFORE R.1. EXT.P.2: COPY OF THE COMMON ORDER DTD. 11/02/97 PASSED BY THIS HONOURABLE COURT IN M.F.A. NO. 256/1990. EXT.P.3: COPY OF THE SHOW CAUSE NOTICE DTD. 04/01/08 ISSUED BY THE DISTRICT COLLECTOR. EXT.P.4: COPY OF THE ORDER DTD. 18/02/08 OF THIS HONOURABLE COURT IN W.P.(C). 5751/08. EXT.P.5: COPY OF THE COUNTER AFFIDAVIT FILED BY THE R.3. IN EXT.P.1. EXT.P.6: COPY OF THE ORDER DTD. 25/03/08 DISMISSING THE EXT.P.1. PETITION. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. prv. ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 11886 of 2008 -------------------------------------------------------- Dated: AUGUST 19, 2008 JUDGMENT The challenge in this writ petition is against Ext.P6, an order passed by the 1st respondent rejecting Ext.P1 application made by the petitioner praying for disqualifying the 3rd respondent, an elected member from Ward No.9 of Chottanikkara Grama Panchayat. 2. The ground urged in Ext.P1 is that the 3rd respondent had filed a false statement of assets and liabilities, inviting disqualification as provided under sec.35 (q) of the Kerala Panchayat Raj Act. The basis of this claim is that when he filed the statement of assets and liabilities as required under sec.159 of the Act, the 3rd respondent did not disclose his liability to pay the compensation awarded by the MACT, Kottayam, in MVOP 308/1987, which was confirmed by this Court in Ext.P2 judgment in MFA 256/1990. WP(C) 11886 of 2008 2 3. Admittedly the 3rd respondent was elected in the election held in 2005 and by then he had incurred the liability under the aforesaid award. Thereafter, he had filed a statement of his assets and liabilities as required under sec.159 of the Panchayat Raj Act. Petitioner contends that due to his omission to indicate the liability arising out of the award as confirmed by this Court in Ext.P2, the statement filed by him is a false one and therefore under sec.159(3) and (4) read with sec.35(q) of the Act, he is liable to be disqualified from continuing as a member of the Panchayat. The plea raised by the petitioner was contested by the 3rd respondent and finally the 1st respondent passed Ext.P6 rejecting Ext.P1 and it is this order which is under challenge in this writ petition. 4. Learned counsel for the petitioner submits that in terms of sec.159(3), if a member of the Panchayat makes a statement under sub-sec.(1) of sec.159, which is false and which he knows and believes to be false, is liable to be WP(C) 11886 of 2008 3 proceeded against in accordance with law for filing such a false statement. It is also his contention that in the event such a false statement is filed, a member of a Panchayat is liable to be disqualified from continuing as a member under sec.35(q) of the Act. 5. I am not in a position to accept this contention. Sec.159 of the Panchayat Raj Act reads as follows:- “Panchayat members, to submit statements regarding Assets.- (1) A member of the Panchayat shall, within three months from the date of assuming his office, file a statement of assets and liabilities of himself and of the members of his family, in the form prescribed before the competent authority authorised in this behalf by the Government by notification in the Gazette: Provided that, a person who is a member of the Panchayat at the commencement of this Act shall submit such a statement to the competent authority, before the date WP(C) 11886 of 2008 4 specified by the Government in this behalf. (2) Where a member of the Panchayat who filed a statement under sub-section (1) acquires any asset in the name of himself or other members of his family or disposes or creates any liability thereafter on the assets specified in the statement, he shall file a statement in this regard to the competent authority within three months from the date of such acquisition or disposal or creation of liability, as the case may be. (3) Any member of the Panchayat who makes a statement under sub-section (1) or sub-section (2) which is false and which he knows or believes to be false or does not believe to be true shall be liable to be proceeded against in accordance with law, for filing such false statement. (4) Where a member of the Panchayat fails to file such a statement to the competent authority within the date specified under sub- section (1) and sub-section (2), action may be taken to disqualify him from continuing as WP(C) 11886 of 2008 5 member of the Panchayat under Section 35. Explanation 1. - For the purpose of this section “family” of a member of the Panchayat means, wife or husband of that member and his parents, unmarried sisters and children who are dependent on him. Explanation 2.- For the purpose of this section “asset” means all immovable properties and movable properties worth not less than Rupees ten thousand.” 5. A reading of the section shows that a member of the Panchayat shall, within three months from the date of assuming his office, file a statement of his assets and liabilities of himself and members of his family in the manner prescribed, before the competent authority. Subsequent acquisition of assets and incurring of liabilities or disposal of assets are also required to be declared in terms of sub-sec. (2). Sub-sec.(4) provides that when there is a failure on the part of a member in filing a statement as indicated in sub-secs.(1) and (2), he is liable to be WP(C) 11886 of 2008 6 disqualified from continuing as a member of the Panchayat under sec.35. Sub-sec.(3) deals with the consequence of filing a false statement . This section provides that when a statement filed by a member is false and which he knows or believes to be false and does not believe it to be true, the member is liable to be proceeded against in accordance with law for filing such a false statement. 6. Therefore a mere filing of an incorrect statement will not attract the consequences of Sec.159(3). On the other hand, the statement filed must be false and the member should know and believe the same to be false and also should not believe the same to be true, in order to render himself liable to be proceeded against. If all the aforesaid ingredients of the section are satisfied, then the consequence is that he is liable to be proceeded against in accordance with law, for filing such a false statement. A combined reading of the aforesaid provisions contained in sec.159 of the Act indicates that a member can be WP(C) 11886 of 2008 7 disqualified from continuing as a member if he has failed to file a statement and if a false statement is filed, he is liable to be proceeded against in accordance with law, provided the other ingredients of the section are also satisfied. 7. Learned counsel for the petitioner contends that if such an interpretation is accepted, there is every likelihood that an elected member of a Panchayat who has filed a false statement might go scot free. This submission made by the learned counsel is also incorrect. Sec.34 deals with disqualification of a candidate. Sec.34(1)(b) shows that a person shall be disqualified for being chosen and for being a member of a Panchayat at any level if he has been sentenced by a Court or Tribunal to imprisonment for a period of not less than three months for an offence involving moral turpitude. A person who is found guilty as described under sec.34(1)(b) is liable to be disqualified as a member in terms of sec.35(1)(a) of the Act. Therefore, if a WP(C) 11886 of 2008 8 member of the Panchayat is found guilty of an offence under sec.159(3) of the Act, he may render himself liable to be disqualified in terms of sec.35(1)(a) of the Act. In view of this, it can be seen that the contention that a person guilty under sec.159 will go scot free is also without any merit. 8. Apart from all these, disqualification of a member can be only on the grounds specified in sec.35 of the Act and the ground urged against the 3rd respondent is under sec.35(q) which reads as under:- “has failed to file declaration of his assets within the time limit prescribed under Section 159.” 9. A reading of the above provision shows that only on the failure to file a declaration of his assets within the time limit prescribed under sec.159, can a member of the Panchayat be disqualified from continuing as a member. Legislature has not included failure to file declaration of his WP(C) 11886 of 2008 9 liabilities as ground for disqualification. In this case, even going by the case pleaded by the petitioner, the allegation is that the 3rd respondent has failed to declare the liability that he had incurred under the award of the MACT as confirmed by Ext.P2 judgment of this Court. This failure to file a declaration of the liability incurred by a member is therefore outside the purview of sec.35(q) of the Act and is not a ground for disqualification. On that ground also Ext.P1 petition filed by the petitioner is liable to be dismissed. 10. Therefore I do not find any reason to take a view different from the one in Ext.P6 order passed by the State Election Commission. Writ petition fails and is dismissed. ANTONY DOMINIC JUDGE mt/-