IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 WP(C).No. 38192 of 2007(V) -------------------------- PETITIONER: ------------ SRI.K.S.SANTHOSHKUMAR KUMAR NIVAS, PANAKKADAVU LANE, ATTINGAL. BY ADV. SRI.M.R.RAJESH RESPONDENTS: ------------- 1. SRI.V.S.SANTHOSH,MAVILA HOUSE, T.B. JUNCTION, ATTINGAL, PIN-695 101. 2. SRI.SANKARANARAYANA PILLAI, HINDHU MAHAL VEEDU,(WRONGLY SHOWN AS SINDHU MAHAL VEEDU IN EXT.P1) T.B.JUNCTION,ATTINGAL, PIN-695101. R1 BY ADV. SRI.J.JAYAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 38192/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE JUDGMENT DT. 17.11.07 OF THE MUNSIFF'S COURT, ATTINGAL IN OP (ELECTION) 25/05 EXT.P2. COPY OF THE ORDER DT. 14.12.07 OF THE DISTRICT COURT, THIRUVANANTHAPURAM IN IA NO.3396/07 IN ELECTION APPEAL NO.14/07 /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 38192 OF 2007 --------------------- Dated this the 1st day of January, 2008 J U D G M E N T This writ petition is preferred against the order of the District Judge, Thiruvananthapuram, in I.A. 3396/07 in Election Appeal No.14/07. The said appeal was preferred against the order of the Munsiff, Attingal in OP (Election) 25/05 whereby the learned Munsiff declared the election of the present writ petitioner as void. Along with the appeal an application for stay was filed. The court below granted an order of stay with some conditions. (i) Permitting the petitioner to attend the proceedings of the Municipality but without right to vote (ii) He shall not hold any office of the Committee and receive any remuneration as such during the pendency of the proceedings (iii) That the election commission shall not proceed to issue any fresh notification pursuant to the judgment of the Munsiff court. This court in the decision reported in Padmakumar v. Unnikrishnan [2004 (1) KLT 1097] held that the moment the election is declared as void, the order comes into effect and therefore there cannot be any stay of operation of the order. But at the same time, the court also held that there can be interim directions so as to work out and solve the injustice that may be caused. It is the very election that is set at naught. So, one cannot find fault with the court below in refusing to grant him permission to vote. So far WPC NO 38192/07 2 as the second aspect is concerned, the learned counsel had drawn my attention to Section 21 of the Kerala Municipality Act and Rules, which deals with the constitution and election to the Standing Committee. Every Councilor is entitled to be a member of a Standing Committee and as per Section 21(7) the term of office is till the expiry of his term of office as Councilor unless he resigns from such office. By declaring the election of a person as void and as per the decision referred to above as it comes into effect immediately on pronouncement of the judgment, the question of any person continuing as a member does not arise at that stage. But it is only to work out some modality, arrangements are made whereby a person who has preferred an appeal is permitted to participate in the meeting without right of voting and a direction is given to the Election Commissioner not to proceed with the commencement of fresh election process. So in order to understand Section 21 of the Kerala Municipality Act and Rules the vide impact of the declaration of election as void has to be borne in mind. When a Councilor is not entitled to vote in the proceedings it shows the democratic aspect of the matter that he is an elected representative of the people is brushed aside and only a facilitation is given to participate in the meeting because he has preferred an appeal. When such is the situation, one cannot state that he must be permitted to continue as a member or chairman of the Standing Committee, who is empowered to take decisions. Therefore, if a vide interpretation is given to Section 21 that even after the WPC NO 38192/07 3 declaration that the election is void he must be permitted to continue as the Chairman, it will very well defeat the purpose and therefore I find that the learned District Judge has only entered into a correct finding that he should not function and receive remuneration as a member or chairman of any Standing Committee. Therefore I do not find any error committed by the court below. Considering the urgency of the matter, the District Court is directed to dispose of the appeal itself within one month from the date of production of a copy of this judgment. The writ petition lacks merit and it is accordingly dismissed. M.N.KRISHNAN, JUDGE vps WPC NO 38192/07 4