IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 WP(C).No. 24180 of 2008(C) -------------------------- PETITIONER: ------------ ABDUL RAHIMAN.A ,AGED 43 YEARS, S/O.LATE AHAMMED, RESIDING AT ALOOR HOUSE POST MULIYAR, BOOVIKKANAM, KASARAGODE DISTRICT PIN 671 542. BY ADV. SRI.K.P.RAMACHANDRAN SRI.K.SABU RESPONDENTS: ------------- 1. STATE OF KERALA REPRESNTED BY THE SECRETARY TO THE DEPARTMENT OF LOCAL BODIES, SECRETARIAT, THIRUVANANTHAPURAM 2. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION KASARGODE 3. RETURNING OFFICER FOR MULIYAR GRAMA PANCHAYATH PRESIDENTIAL ELECTION (DISTRICT PLANNING OFFICER) CIVIL STATION, VIDYA NAGAR, KASARAGODE 4. SECRETARY MULIYAR GRAMA PANCHAYATH, KASARGODE. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R3 R1 & 2 BY GOVERNMENT PLEADER SRI K.V.MANOJKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSI0N ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------------- W.P.(C) 24180 of 2008 -------------------------------------------------------- Dated: AUGUST 12, 2008 JUDGMENT Heard both sides. 2. The challenge in this writ petition is against the election of President of Mulyar Grama Panchayat, of which the petitioner claims to be a voter. It is stated that the member from Ward No.12, Sri Sulaiman, was elected as the President of the Panchayat. Subsequently he expired on 12.7.2008 resulting in the casual vacancy of President of the Panchayat. Petitioner submits that without conducting by-election for filling up the vacancy of the member from Ward No.12, the 3rd respondent has scheduled election of the President to be held today, the 12th of August, 2008. It is contending that until the by-election is held and a member is elected from Ward No.12, the Presidential election should not be held, this writ petition has been filed. 3. The rule that governs the election of President WP(C) 24180/08 2 and Vice President of a Panchayat is the Kerala Panchayat Raj (Election of President and Vice President) Rules, 1995. Rule 5 provides for the manner of convening an election meeting. Rule 5(2) provides that the meeting for election of President or Vice President shall be convened in the case of an ordinary vacancy within three weeks from the date of publication of the names of members and in the case of a casual vacancy, as in this case, as soon as after the occurrence of the vacancy, as may be fixed by the Election Commission. 4. Therefore, Rule 5(2) requires the Election Commission to fix a date for election as soon as after the occurrence of the casual vacancy. In this case, the casual vacancy of the President of the Panchayat occurred on 12.7.2008 and in exercise of the powers under Rule 5(2) of the Rules referred to above, the Election Commission has fixed 12.8.2008 as the date for convening the meeting to elect the President. WP(C) 24180/08 3 5. What is to be considered is whether the existence of the vacancy of a member, should be a reason for deferring election of the President. In this context what is of relevance is sec.153(14 a) which reads as under:- “153(14a) The validity of the election of the President or the Vice-President of a Panchayat shall not be called in question for the reason of any vacancy in the place of the members or who shall elect President or Vice-President for the reason of the absence of any member.” 6. A reading of this provision shows that the validity of election of the President shall not be challenged on the ground that there was vacancy of a member, as in this case. A provision similar to this contained in sec.12(6A) of the Kerala Municipality Act came up for the consideration of a Division Bench of this Court in Shaila v. Kerala State Election Commission - 2002(3)KLT857 where this Court has held:- WP(C) 24180/08 4 “The existence of a vacancy of Councillor in the Municipal Council is not a bar for the election of the Chairperson of the Municipal Council. As per S.12(6A) of the Kerala Municipalities Act, the validity of election of the Chairperson or Deputy Chairperson shall not be called in question on the ground of any vacancy of the office of the Councillors or the absence of any of the Councillors in the election meeting. The effect of S.12(6A) is that the existence of any vacancy of Councillor is not a ground for postponing or for not holding the election of the Chairperson or Deputy Chairperson.” 7. In view of sec.153(14a) and in the light of the interpretation given by the Division Bench of this Court to a similar provision occurring in the Kerala Municipality Act, I must accept the contention of the standing counsel for the Election Commission that the existence of vacancy is not a ground for postponing or not holding election to the post of President of the Panchayat. WP(C) 24180/08 5 8. Thus both grounds urged by the petitioner are only to be rejected. 9. In addition to the above, the standing counsel for the Election Commission has also made available before me a copy of the communication of the Returning Officer addressed to the Secretary of the Election Commission reporting that the election has been held today at 11 a.m. as scheduled and that Sri Khalid, Bellippadi, member representing Ward No.11, has been elected, he having secured 8 out of 11 votes polled. For the aforesaid reasons, the writ petition is only to be dismissed and I do so. ANTONY DOMINIC JUDGE mt/-