IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 11TH MARCH 2010 / 20TH PHALGUNA 1931 WP(C).No. 36657 of 2009(B) ---------------------------------------- PETITIONER(S): ------------------------ 1. BABU, S/O.PADMANABHAN NAIR, AGED 35 YEARS, RESIDING AT MUNDUPALATHINGAL VEEDU, THALAPERUMANNA, KARUVANPOYIL P.O., KODUVALLY, KOZHIKODE DISTRICT. 2. SREEDHARAN, S/O.SANKARAN KUTTY, AGED 48 YEARS, RESIDING AT POOKOTTIL HOUSE, P.O.VAVAD, KODUVALLY, KOZHIKODE DISTRICT. BY MR.V.CHITAMBARESH, SENIOR ADVOCATE, BY ADV.MR.T.C.SURESH MENON, MR.JIBU P THOMAS, MR.P.S.APPU, MR.A.R.NIMOD, MR.C.A.ANOOP. RESPONDENT(S): --------------------------- 1. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. THE SECRETARY, KODUVALLY GRAMA PANCHAYAT, KODUVALLY P.O., KOZHIKODE. 3. THE PRESIDENT, KODUVALLY GRAMA PANCHAYAT, KODUVALLY P.O., KOZHIKODE. *ADDL.R4 & R5 IMPLEADED: R4. THE STATE OF KERALA, REP. BY PRL.SECRETARY TO THE GOVT.OF KERALA, LOCAL ADMINISTRATION DEPARTMENT, THIRUVANANTHAPURAM. R5. THE DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM. (*ADDL.R4 & R5 ARE IMPLEADED AS PER ORDER DTD. 18/12/2009 IN WPC) R1 BY ADV. MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN. R2 & R3 BY ADV.MR.K.A.SALIL NARAYANAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2010 ALONG WITH WPC.NO.7696 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36657/2009 B APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER IN I.A.60/07 IN O.P.63/07 DTD. 27/11/2007 OF THE 1ST RESPONDENT. P2: COPY OF THE ORDER IN I.A.61/07 IN O.P.64/07 DTD. 27/11/2007 OF THE 1ST RESPONDENT. P3: COPY OF THE COMMON JUDGMENT IN WPC.NO.35487/07 & WPC.NO.35500/07 DTD. 10/12/2007. P4: COPY OF THE ORDER DTD. 27/03/2008 OF THE 1ST RESPONDENT IN OP.63/07. P5: COPY OF THE ORDER DTD. 27/03/2008 OF THE 1ST RESPONDENT IN O.P.64/07. P6: COPY OF THE COMMON JUDGMENT IN WPC.NO.13558/08 AND WPC.NO. 14596/08 DTD. 26/11/2009. P7: COPY OF THE LETTER DTD. 15/12/09 FROM THE 2ND RESPONDENT. P8: COPY OFTHE RESOLUTION TAKEN BY THE KODUVALLY GRAMA PANCHAYAT DTD. 9/04/2008. P9: COPY OF THE ORDER DTD. 7/12/2009 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS & ANNEXURE: R3(A): LIST SHOWING THE TOTAL NO. OF PROJECTS UNDER THE RESPONDENT PANCHAYATH AND THE SPLIT UP DETAILS. R3(B): COPY OF THE REPORT THAT APPEARED IN THE DESHABHIMANI DAILY DTD. 14TH JANUARY 2010 REGARDING THE ALLOCATION OF FUNDS FOR ROAD DEVELOPMENT. ANNEXURE A: COPY OF THE JUDGMENT DTD. 04/11/2004 IN WPC.NO.32312/2004. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.36657 of 2009 (B) & 7696 of 2010 (J) --------------------------------- Dated, this the 11th day of March, 2010 J U D G M E N T The petitioners are voters from Ward Nos.2 & 14 of Koduvally Grama Panchayat. 2. In the election held in 2005, members were elected to the Panchayat Committee including from these wards. However, the member from Ward No.14 resigned on 23/05/2006 and the member from Ward No.2 expired on 15/08/2006. Bye-elections were held on 19/09/2006 & 23/01/2007 in Ward Nos.14 & 2 respectively, and members were elected from these Wards. 3. However, O.P.Nos.63/07 and 64/07 were filed seeking orders disqualifying them. In those O.Ps., interim orders were passed by the Election Commission on 27/11/2007 restraining the elected members from discharging their duties as members. These orders were confirmed by this Court by dismissing W.P.(C) Nos.35487/07 & 35500/07. Finally, by judgment rendered on WP(C) Nos.36657/09 & 7696/2010 -2- 27/03/2008, the O.Ps were allowed by the Election Commission and both the elected members were disqualified. 4. Aggrieved by the aforesaid orders, the disqualified members approached this Court by filing WP(C) Nos.13558/08 & 14596/08. At the admission stage, when the matter was considered by this Court, on behalf of the Election Commission, an undertaking was given that bye-election will not be held during the pendency of the writ petitions. The undertaking remained in force till 26/11/2009, when the writ petitions were dismissed by this Court. 5. Thereafter, the Election Commission called upon the Secretary of the Panchayat to report the vacancy by its communication dated 07/12/2009. It was thereupon that WP(C) No.36657/09 was filed challenging the proceedings taken by the Election Commission. 6. According to the petitioners herein, several projects are being implemented in the Panchayat and out of the fund allotted, only 20% has been utilised. It is contended that if bye-election is now declared, due to the operation of Code of Conduct, works for the projects will have to be stalled. It is further contended that WP(C) Nos.36657/09 & 7696/2010 -3- General Election is due to be held in September, 2010, and therefore, at the fag end of the term of the elected committee, there is no need to conduct another bye-election. It was also contended that taking into account the continued existence of the casual vacancy, by a resolution passed by the Panchayat, the President has been authorised to lookafter the welfare of Ward Nos.2 & 14, and that it is stated that there is no reason to conduct a bye-election, at this belated stage. 7. In so far as WP(C) No.7696/2010 is concerned, the petitioners, who are also voters of Ward Nos.2 & 14 of Koduvally Grama Panchayat, contend that the Election Commission, having violated the provisions of Section 149(3) of the Panchayat Raj Act, election should not be held at this point of time. 8. I have considered the submissions made. 9. Section 149 of the Kerala Panchayat Raj Act provides the term of office of elected members. Sub Section (3) thereof provides that a casual vacancy in the office of a member of Panchayat at any level shall be filled by the Election Commission, within six months after the occurrence of the vacancy, through a bye-election. Sub Section (4) provides that no bye-election shall be held to fill a WP(C) Nos.36657/09 & 7696/2010 -4- vacancy occurring within six months before the ordinary date of retirement by efflux of time. 10. True, due to the pendency of WP(C) No.13558/2008 & 14596/2009, and the undertaking that the 1st respondent had given to this Court, election was not held within six months after the occurrence of the vacancy. This has occurred when on 27/03/2008, the Election Commission declared the members elected in the bye- elections held on 19/09/2006 & 23/01/2007 disqualified. However, the fact that within six months election was not held does not mean that there is an injunction against the Election Commission to hold election after the expiry of the period, specified under Section 149(3). On the other hand, in Section 149(3) time limit has been indicated only to ensure that election is held with due expedition and this provision, does not prevent the Election Commission from holding election even after the expiry of the six months' time limit. Similar view has been taken by this Court in the judgment in WP(C) No.1679/2010, where identical contention regarding election as per the Kerala District Planning Committee (Election of Member and Proceedings of Meeting) Rules, 1995 was considered. In paragraph 3 of the judgment, it has been held WP(C) Nos.36657/09 & 7696/2010 -5- thus :- “A reading of this rule shows that in respect of the ordinary vacancies the same should be filled up within 3 months and in respect of casual vacancies, the same should be filled up immediately after receipt of the report regarding the vacancy. Although there is a time frame required, the said time frame is incorporated in the rule to ensure that the vacancies of the nature mentioned therein are filled up by taking necessary election with due expedition. That the time frame has not been complied with does not, in my understanding, mean that, the Rule imposes any injunction against filling up the vacancy as contended by the counsel for the petitioner. If I am to accept the contention of the learned counsel that will lead to the disastrous consequence of prohibiting the Election Commission from filling up the vacancies in a case as the present one. Such cannot be the intend of the statute and therefore I am not persuaded to accept the contention raised by the counsel for the petitioner.” 11. In view of this, I am not persuaded to accept the contention raised by the learned counsel for the petitioners in WP(C) No.7696/2010 that the Election Commission cannot conduct election at this stage. 12. In so far as the apprehension expressed by the petitioners in WP(C) No.36657/2009 that if bye-election is now declared, the projects, which are implemented, will have to be stalled is concerned, this contention has been answered by the WP(C) Nos.36657/09 & 7696/2010 -6- Election Commission in the statement filed by it. In paragraph 7 of the statement it has been stated that the operation of the Model Code of Conduct does not arrest or stand in the way of on going projects or other development works sanctioned to the Panchayat, and that the Code only prohibits announcement of new schemes or projects or grant of new reliefs after the announcement of election. Going by the averments in the writ petition, Schemes have already been sanctioned and grants also have been availed of by the Panchayat. If that be so, the answer given by the Election Commission should redress the apprehension of the petitioners about the ongoing projects of the Panchayat. In so far as the contention that since the ordinary date of retirement by efflux of time is to take place in September, 2010, election should not be held at this stage is concerned, the only interdiction in Section 149(4) is that no bye-election shall be held to fill up a vacancy occurring within six months before the ordinary date of retirement by efflux of time. In this case, admittedly, the vacancies have occurred long before six months before the date of retirement and if that be so, the Election Commission is statutorily empowered to hold bye-election any time before the date of WP(C) Nos.36657/09 & 7696/2010 -7- retirement by efflux of time. The desirability or otherwise of the election at this stage cannot be a matter of concern for this Court, so long as the Election Commission is statutory authorised to hold election. In the result, I do not find any merit in these writ petitions. These writ petitions fails and are accordingly dismissed. (ANTONY DOMINIC, JUDGE) jg