IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 16TH APRIL 2010 / 26TH CHAITHRA 1932 WP(C).No. 9468 of 2010(G) ------------------------- PETITIONER(S): --------------- JOSE K.GEORGE, COUNCILLOR, WARD NO.9, CHENGANNUR MUNICIPALITY, CHENGANNUR, RESIDING AT KARTHIKAPPALLY PEEDIKAYIL, PUTHENKAVU, CHENGANNUR. BY ADV. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.A.S.SABU RESPONDENT(S): --------------- 1. CHENGANNUR MUNICIPALITY, CHENGANNUR, P.B.NO.8, PIN-689 121, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, CHENGANNUR MUNICIPALITY, CHENGANNUR, P.B.NO.8, PIN-689 121. 3. P.M.MOHAMMED ALI, REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS, SOUTHERN REGION, KOLLAM. 4. STATE ELECTION COMMISSION, OFFICE OF THE STATE ELECTION COMMISSION, PALAYAM, THIRUVANANTHAPURAM. 5. RAJAN KANNATTU, CHAIRPERSON, CHENGANNUR MUNICIPALITY, CHENGANNUR. 6. P.R.PRADEEP KUMAR, COUNCILLOR, WARD NO.6, CHENGANNUR MUNICIPALITY, CHENGANNUR. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R4 SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE FOR R5 SRI.TONY GEORGE KANNANTHANAM FOR R5 SRI.AVM.SALAHUDIN FOR R3 SRI.B.GOPAKUMAR FOR R1 & R2 SMT.CHINCY GOPAKUMAR FOR R1 SRI.ASWIN GOPAKUMAR FOR R1 SRI.ANWIN GOPAKUMAR FOR R1 THIS WRIT PETITION (CIVIL ) HAVING BEEN FINALLY HEARD ON 07/04/2010, ALONG WITH WPC NO. 10053 OF 2010, THE COURT ON 16/04/2010 DELIVERED THE FOLLOWING: WPC NO.9468/2010 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE NO CONFIDENCE MOTION. P2 : COPY OF NOTICE DATED 01/03/2010. P3 : COPY OF NEWS ITEMS PUBLISHED IN MANGALAM, MATHRUBHOOMI AND MALAYALA MANORAMA DAILIES 16/03/2010. P4 : COPY OF MINUTES OF THE MEETING DATED 15/03/2010. P5 : COPY OF NOTICE DATED 06/03/2010. P6 : COPY OF LAWYER NOTICE DATED 05/03/2010. P7 : COPY OF PETITION SUBMITTED BY THE PETTIONER AND OTHERS BEFORE THE JOINT DIRECTOR, MUNICIPAL CORPORATION, KOLLAM DATED 15/03/2010. RESPONDENT'S EXHIBITS R5(a) : COPY OF NOTICE ISSUED BY THE SECRETARY OF THE MUNICIPAL COUNCIL. R5(b) : COPY OF THE FACING PAGE OF EXT.R5(a) WITH THE RELEVANT POSTAL SEAL. R1(a) : COPY OF APPLICATION DATED 23/03/2010. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.9468 (G) & 10053 (F) of 2010 --------------------------------- Dated, this the 16th day of April, 2010 J U D G M E N T Issues raised in these writ petitions are connected, and therefore, these cases were heard together and are disposed of by this common judgment. The documents referred to in this judgment are those produced in WP(C) No.9468/2010. 2. In 2005, election was held to Chengannur Municipality and the petitioners herein were elected from Ward Nos.9 & 6 respectively. 3. In the election, the Left Democratic Front (hereinafter referred to as LDF for short) secured majority and the 5th respondent herein was elected as the Municipal Chairman. The petitioners herein belong to the United Democratic Front (hereinafter referred to as UDF for short), the opposition coalition. 4. While the petitioners were continuing as members, one of the members of the UDF coalition moved a no confidence motion against the 5th respondent, and this was seconded by the petitioner WP(C) Nos.9468 & 10053/2010 -2- in WP(C) No.9468/2010. In terms of the provisions contained in Section 19 of the Kerala Municipality Act, 1994 (hereinafter referred to as the Act for short), the State Election Commission authorised the 3rd respondent to convene a meeting of the Councillors. Accordingly, in terms of Section 19(3) of the Act, the 3rd respondent issued Ext.P2 notice dated 01/03/2010 convening the meeting on 15/03/2010. Notice was served on the members including the petitioners, and they presented themselves at the council hall, the venue of the meeting. Ext.P4 minutes show that as scheduled the meeting commenced at 11 AM and the 3rd respondent read out the motion of no confidence. Thereafter he informed the petitioners and 3 other Councillors, belonging to the LDF coalition, that by letter dated 15/03/2010, the 2nd respondent has intimated that they have already ceased to be members under Section 91(1)(k) of the Act and that therefore, they were ineligible to participate in the meeting. From Ext.P4 minutes, it is also seen that the petitioners refused to leave the venue of the meeting, and finally, with police assistance, they were removed. Thereafter the motion was taken up for discussion and out of 18 council members who were present, 17 WP(C) Nos.9468 & 10053/2010 -3- did not participate in the voting. The 5th respondent, the Chairman of the Municipality, voted against the motion. Accordingly, the 3rd respondent declared the motion as defeated. 5. According to the petitioners, in terms of the provisions contained under the Right to Information Act, they applied for a copy of letter dated 15/03/2010 of the 2nd respondent, mentioned in Ext.P4 minutes. Instead of furnishing the documents applied for, they were issued Ext.P5 dated 06/03/2010, which is purported to be the copy of an intimation issued by the 2nd respondent under Section 93(2) of the Act to the petitioner in WP(C) No.9468/2010. It is in these circumstances, writ petitions have been filed praying to declare that the decision of the 3rd respondent that the no confidence motion against the 5th respondent was defeated is illegal and arbitrary, to declare Ext.P5 notice illegal, to declare the decision of the 2nd respondent that the petitioners are disqualified under Section 91(1)(k) of the Act illegal and to direct the 3rd respondent to convene a meeting afresh to consider the no confidence motion. Consequential reliefs are also sought for. 6. Counter affidavit has been filed by the 2nd respondent on WP(C) Nos.9468 & 10053/2010 -4- behalf of the 1st respondent. According to the Secretary, she assumed charge of the Office on 07/04/2008. It is stated that by Ext.P6 lawyer notice dated 05/03/2010 received by her on 06/03/2010, she was intimated that the petitioners had ceased to be members of the Council under Section 91(1)(k) of the Act and that on receipt of this notice, she verified the documents and finding that the petitioners and 3 others have ceased to be members, issued intimation dated 06/03/2010 to all such persons. It is further stated that she issued letter dated 15/03/2010 to the 3rd respondent conveying that for the aforesaid reason, the petitioners and 3 others were ineligible to participate in the meeting convened on that day. It is also stated that subsequent to the filing of these writ petitions, the petitioners and the other three persons have also made applications under Section 93(2) of the Act for restoration of their membership and that the applications made by the petitioners are pending consideration of the Municipal Council. Counter affidavits have been filed by respondents 3 & 5 as well supporting the impugned decisions. 7. First contention raised by the learned counsel for the WP(C) Nos.9468 & 10053/2010 -5- petitioners was that Section 19 of the Act providing for motion of no confidence is a self contained code. It was argued that if a candidate had ceased to be a member under Section 91(1)(k) of the Act, the Secretary shall at once intimate that fact in writing to such person and report the same to the Council, at its next meeting. According to them, letter dated 15/03/2010 referred to in Ext.P4 minutes is the report under Section 93(2) of the Act to the Council, which should be made to the meeting of the Municipal Council, and that the meeting convened by the 3rd respondent under Section 19 (3) of the Act cannot be treated as a meeting of the Council. In support of this contention, the learned counsel for the petitioners referred me to the relevant provisions of the Act, and judgments of this Court in Valsalam v. State of Kerala (2003(1) KLT 858), Kunhimon v. Block Development Officer (2003(3) KLT 664) and Thangal v. Block Development Officer (2007(3) KLT 561). 8. The second contention raised by the learned counsel for the petitioners was that under Section 91(1)(k) of the Act, if a member is absent from specified number of meetings, he will cease to be a member of the Council, and that the cessation of WP(C) Nos.9468 & 10053/2010 -6- membership becomes operational only after the Secretary complies with the requirements of Section 93(2) of the Act. It was contented that since no intimation has been given to the petitioners, the petitioners continued as members and therefore they should not have been prevented from participating in the meeting held on 15/03/2010. 9. Thirdly, it was contended that the impugned action of the respondents was malafide, ill motivated and was a colourable exercise of power. It was argued that although power has been conferred on the authorities, that has been exercised for the oblique and malafide purpose of ensuring that the no confidence motion is defeated. It was contended that for that reason also the impugned action of the respondents called for interference. 10. I have considered the submissions made. 11. The first contention is that cessation of membership could not have been reported to the meeting convened by the 3rd respondent under Section 19 of the Act. Section 93(2) of the Act provides that if a person has ceased to be a member of the Municipal Council, the Secretary shall at once intimate the person WP(C) Nos.9468 & 10053/2010 -7- concerned, and report the same to the Municipal Council, in its next meeting. Therefore, if the meeting convened by the 3rd respondent on 15/03/2010 is accepted as the meeting of the Municipal Council for the purpose of Section 93(2) of the Act, and letter dated 15/03/2010 mentioned in Ext.P4 minutes is taken as a report submitted by the Secretary to the Municipal Council under Section 93(2), the counsel is justified in this submission. It should be stated that a meeting convened for considering a no confidence motion, is convened by an officer authorised by the State Election Commission in terms of the provisions contained in Section 19 of the Act. Section 19 is a self contained code and lays the procedure for dealing with a no confidence motion and such a meeting cannot be considered as a meeting of the Council for the purpose of Section 93(2) of the Act. In this context, I should also make reference to the decision of this Court in Valsalam v. State of Kerala (2003(1) KLT 858), where considering similar provisions of the Kerala Panchayat Raj Act, 1995, this Court has held as follows:- “------. Thus a separate procedure is contemplated under law for moving a no confidence motion and in fact it has been made a function of the Election Commission to deal with a motion for WP(C) Nos.9468 & 10053/2010 -8- no confidence. The holding of a meeting to consider a no confidence motion is not a function of the Panchayat and it need not be Presided over by the President of the Panchayat. The meeting for discussing a no confidence motion is convened by the representative of the Election Commission. Notice to move a no confidence motion has to be given to the authorised representative of the Election Commission and he will convene the meeting of the elected members and preside over the meeting and the result of voting also will be announced by him. A decision or a resolution can be taken only in a meeting of the Panchayat. A meeting of the elected members convened by the representative of the Election Commission is not a meeting of the Panchayat. Every meeting of the Panchayat has to be presided over by the President or Vice President or any other member. A meeting of the elected members convened by the representative of the Election Commission is not a meeting of the Panchayat.” This judgment has been followed subsequently in Kunhimon v. Block Development Officer (2003(3) KLT 664) and also in Thangal v. Block Development Officer (2007(3) KLT 561). 12. From the averments in the counter affidavit filed by the Secretary, it can be seen that her case is that on 06/03/2010 she received Ext.P6 lawyer notice issued on behalf of a Councillor of the Municipality, and that thereupon she verified the records and at once issued Ext.P5 intimation to the disqualified members as required under Section 93(2) of the Act. It is not her case that the WP(C) Nos.9468 & 10053/2010 -9- notice addressed to the 3rd respondent and mentioned in Ext.P4 minutes, is a report as required under Section 93(2) of the Act. During the course of his submissions, learned counsel for respondents 1 & 2 also clarified that cessation of membership was reported to the council meeting held subsequent to 15/03/2010. The petitioners have not placed anything to contradict the averments. If that be the case, the contention raised is misconceived as the basis on which the petitioners have raised this plea is erroneous. For that reason, the principles laid down in the judgments relied on by the learned counsel are also inapplicable to the facts of this case. 13. The 2nd contention is that disqualification under Section 91(1)(k) of the Act becomes operational only after the Secretary has complied with the provisions of Section 93(2) of the Act. Before addressing this contention, it would be beneficial to have a closer look at Sections 91(1)(k) and 93(2) of the Act, which are relevant in this context. Therefore, the aforesaid two provisions of the Act are extracted below for reference:- Section 91 :Disqualification of Councillors :-(1)Subject to the provisions of Section 92 or Section 178, a Councillor shall cease to WP(C) Nos.9468 & 10053/2010 -10- 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: Provided that no meeting from which a Councillor absented himself shall be counted against him under this clause of- (i) due notice of that meeting was not given to him; or (ii) the meeting was held after giving shorter notice than that prescribed for an ordinary meeting; or (iii) the meeting was held on a requisition by the Councillors (Provided further that the Municipality in no case, shall give permission to a Councillor from not attending the meetings of the council or the Standing Committee for a continuous period exceeding six months) Section 93(2) : Where a person ceases to be a Councillor 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 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 Councillor. WP(C) Nos.9468 & 10053/2010 -11- Provided that a Councillor shall not be restored more than once during his term of office.” 14. A reading of Section 91(1)(k) of the Act shows that if a member of the Municipality absents himself from the meetings of the council or the Standing Committee as provided in the Section, he ceases to be a member of the Municipal Council. Therefore, once the requirements of this Section are satisfied in a particular case, the member automatically ceases to have his membership. Such cessation of membership is not dependent on anything further and the Act does not contemplate anything more than that. Section 93(2) of the Act provides that where a person ceases to be a Councillor under Section 91(1)(k), the Secretary shall at once intimate the fact in writing to such person and report the same to the Municipal Council at its next meeting. From this it is evident that, whatever the Secretary is required to do under Section 93(2) are only subsequent to the Councillor ceasing to be as such. Therefore, I cannot accept the plea of the learned counsel for the petitioners that cessation of membership under Section 91(1)(k) becomes operational only after the Secretary complies with the requirements of Section 93(2) of the Act. WP(C) Nos.9468 & 10053/2010 -12- 15. This conclusion is fortified by the law laid down by this Court in Pushpam Simon v. Karumkulam Grama Panchayat (2009(4) KLT 561), where considering similar provisions of the Kerala Panchayat Raj Act, it was held as follows :- “5. S.34 of the P.R.Act enumerates the disqualification for being chosen as, and for being a member of a Panchayat and S.35 provides the disqualification of members. Therefore, if any among the disqualifications enumerated under S.34 or under S.35 is incurred by a member, he shall cease to hold office. The cessation of office is an automatic consequence of incurring any of those disqualifications and that does not depend upon any adjudication and decision resulting in the imposition of the disqualification. 6. Pointedly, on S.35(k), as noticed in the opening paragraph of this judgment, S.37(2) provides only an opportunity to the disqualified member to restoration of the membership, cessation of which has visited him by the operation of S.35(k). The notice provided for in S.37(2) is not a condition precedent for the sufferance of the consequence of the disqualification incurred by the occurrence of the event described in S.35(k). The notice that the Secretary is enjoined to give in terms of S.37(2) is only one that provides the fixation of the period of time within which such a member can apply to the Panchayat for restoration of membership. No other consequences follow. If a member avails that opportunity, he may stand estopped from going back to the Election Commission and seek relief under S.36(1) as laid down in Rajan (supra). This view is not in conflict with the judgment of this Court in Gopi v. Maneed Grama Panchayat (2002(2) KLT 753) in WP(C) Nos.9468 & 10053/2010 -13- para.5 of which, it has been stated that the moment a member entails disqualification under S.35(k), the fact has to be intimated in writing to such person by the Secretary and it has to be reported at the next meeting of the Grama Panchayat. The further statement in that judgment is that once an intimation under S.37 (2) of the P.R.Act is given to a member, he cannot continue to be a member or participate in any proceedings unless appropriate orders, either interim order or final order, are issued by the Election Commission or unless the Panchayat decides on his application to restore his membership. It is quite so, in as much as it does not proceed to state that the disqualification commences only on service of notice. That judgment has to be understood as laying down only that the continued participation can be had only after either the Election Commission clears the membership holding that there is no disqualification or by the Panchayat committee restoring the membership. The said judgment, in fact, does not lay down that the provision for disqualification as contained in S.35(k), in any manner, depends on the prescription as to notice, as contained in S.37(2) of the P.R.Act. If it were to go to that extent, the said judgment in Gopi would have had to rest per incuriam. But, that precedent in fact, does not lay down so. The suggestion that it does is not acceptable.” 16. Now what remains to be considered is whether the exercise of power which resulted in the removal of the petitioners from the venue of the meeting held on 15/03/2010 was malafide and a colourable exercise of power. As already held, if a person WP(C) Nos.9468 & 10053/2010 -14- absents himself from the prescribed number of meetings, without anything more, he will cease to be a member. In this case, even according to the respondents, the alleged cessation of membership has occurred way back in 2006 & 2007. Although the petitioners belong to the opposition coalition, no action was taken against them, they continued as members, discharged their duties and more than 3 years have elapsed since then. Even according to the 2nd respondent, she or her predecessor in office did not do anything under Section 93(2) of the Act or reported the casual vacancy to the State Election Commission, as required under Rule 4 of the Kerala Municipality (Conduct of Election) Rules, 1995, at least till Ext.P5 was issued. It is at that stage, and that too when discussion of a no confidence motion moved by them was about to start, which in all likelihood would have resulted in the 5th respondent loosing his coveted position, that the petitioners were prevented from participating in the Meeting. In my view, cessation of membership and its consequences should fall on the person concerned immediately and its consequences cannot be postponed to a future point of time to be invoked to suit the convenience of the rival WP(C) Nos.9468 & 10053/2010 -15- camp, much less to defeat a democratic process. Otherwise, depending upon the whims and fancies of those in power, incidents that have happened in the past and have become stale and irrelevant can be revived and inconvenient persons can be got rid of from the Municipal Council, as and when it suits them. If that is what the statute permits, such power will be arbitrary and an antithesis to rule of law. The petitioners having been permitted to continue their membership, despite the alleged cessation of membership, in the facts of this case, I am inclined to take the view that the Council, which is empowered to restore membership under Section 93(2) of the Act, is deemed to have restored their membership and hence, they could not have been proceeded against or prevented from participating in the meeting. 17. Where power is conferred to achieve a particular purpose, it must be exercised reasonably and in good faith to carry out the purpose. In State of Punjab v. Gurdial Singh (1980 (2) SCC 471), it has been held as follows :- 9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal WP(C) Nos.9468 & 10053/2010 -16- vice. Pithily put, bad faith which invalidates the exercise of power — sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions — is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in law when he stated: “I repeat . . . that all power is a trust — that we are accountable for its exercise — that, from the people, and for the people, all springs, and all must exist”. Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice-laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action, mala fides or fraud on power vitiates the acquisition or other official act. Again in State of Bihar