IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 1615 of 2009(P) ------------------------------------- PETITIONER(S): --------------------- PUSHPAM SIMON, S/O. PUSHPAM, RESIDING AT HAPPY HOME, PUTHIYATHURA, PUTHIYATHURA P.O., THIRUVANANTHAPURAM. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE ADV. MR.K.B.PRADEEP RESPONDENT(S): ----------------------- 1. THE KARUMKULAM GRAMA PANCHAYATH, PUTHIYATHURA P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, THE KARUMKULAM GRAMA PANCHAYATH, PUTHIYATHURA P.O., THIRUVANANTHAPURAM. 3. THE BLOCK DEVELOPMENT OFFICER (RETURNING OFFICER), ATHIYANNOOR BLOCK PANCHAYAT, THIRUVANANTHAPURAM. 4. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. R3 & R4 BY ADV. MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM N. R1 & R2 BY ADV. MR.SANTHEEP ANKARATH, MR.V.C.MADHAVANKUTTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 1615/2009-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE DATED 05/09/2008 OF THE SECRETARY OF THE BLOCK PANCHAYAT. EXT.P2: COPY OF THE NOTICE DATED 30/08/2008 ISSUED BY THE SECRETARY OF THE PANCHAYAT. EXT.P3: COPY OF THE ORIGINAL PETITION NO.136/08 FILED BEFORE THE 4TH RESPONDENT. EXT.P4: COPY OF THE JUDGMENT DATED 24/09/2008 IN WP(C) NO. 27675/2008 OF THIS HONOURABLE COURT. EXT.P5: COPY OF THE ORDER DATED 12/01/2009 PASSED BY THE 4TH RESPONDENT IN O.P. NO. 136/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.1615 OF 2009 ------------------------------------------- Dated this the 8th day of September, 2009 JUDGMENT “C.R.” 1.The petitioner, an elected member of a grama panchayat and a member of the standing committee for welfare in that panchayat, was served with a notice under Section 37(2) of the Kerala Panchayat Raj Act, 1994, hereinafter referred to as the 'PR Act', by the secretary of the panchayat, intimating him that he has ceased to be a member of the panchayat under clause (k) of Section 35 of that Act. He had two options. One was to concede to the fact stated in the notice and seek restoration of membership by applying to the panchayat in terms of Section 37(2) of the PR Act and take the verdict of the panchayat in that regard. Alternatively, he could seek determination of the question as to whether he has become disqualified by making a petition for determination of that question in terms of Section 36(1) of the PR Act before the State Election Commission. Had he chosen the former, he would stand estopped from availing the latter. See Rajan v. Kerala State Election Commission WPC.1615/09 Page numbers [1999(3) KLT 601]. The petitioner chose the latter and moved the Election Commission. The panchayat filed objections, also pleading that the petitioner is a Non-Resident Indian and staying at Dubai with his family and he used to visit Kerala only once in three or four months. The panchayat pleaded that the petitioner failed to attend 8 consecutive meetings held between 17.2.2007 and 25.9.2007 and he also failed to attend another 9 consecutive meetings held between 23.11.2007 and 30.7.2008. As per the impugned Ext.P5 order, the Election Commission held that there was no reliable material to hold that the petitioner had incurred the disqualification in terms of Section 35(k) of the PR Act. In particular, it was held that there was no sustainable material to hold that due notices of the meetings were served on the petitioner, as enjoined by law, to result in the cause of action that would lead to the automatic disqualification of the petitioner by the occurrence of the event provided for in Section 35(k). After holding so, the Election Commission went further to hold that an examination of the attendance register of the panchayat WPC.1615/09 Page numbers during the relevant period would reveal that the panchayat's contention that the petitioner used to attend meetings of the panchayat only once in three months, just to avoid disqualification is true. Adverting to Ext.P6 copy of the Passport of the petitioner, the Election Commission noted that Visa endorsements by the authorities of UAE showed that the petitioner had a resident visa or permit and that resident permit becomes invalid if bearer resides out of UAE for more than six months. On the basis of that endorsement, the Election Commission concluded that the petitioner is an ordinary resident of UAE and is therefore, not an ordinary resident in the territory of the grama panchayat. The Election Commission, therefore, went on to say that the petitioner is not even entitled to be a voter in the panchayat. Cautioning itself that it had not been called upon to pass order on that issue, the Election Commission deferred from stating further on the resident status, but ultimately held that the petitioner is disqualified in terms of Section 35(k) of the PR Act. To conclude so, the Election Commission held that the petitioner WPC.1615/09 Page numbers had not taken permission from anybody to go abroad and from the circumstances, it can be presumed that notices meant for some of the meetings were served on the persons seen at his residence, including his wife. It was also presumed that the endorsement to the effect that the notice was not served on the petitioner as he was not in place must have been made by G.Anilkumar, chairman of the standing committee, who was examined as PW4 before the Election Commission. The Election Commission took the view that the panchayat could have taken steps to affix the notice. But such lapse was held to be one that could not be considered as a serious one in view of the fact that the petitioner, according to the Election Commission, is not even an ordinary resident of the panchayat as revealed by the endorsements in his passport and his oral evidence. The assimilation of the evidences and the conclusions arrived at by the Election Commission in paragraph 3 of the impugned Ext.P5 tend to show that there is no categoric finding that the petitioner had absented himself, without the permission of the panchayat, from the meeting of WPC.1615/09 Page numbers its standing committee for a period of three consecutive months and that there was due notice of the meetings which were reckoned to result in the disqualification as alleged. 2.Attacking the findings of the Election Commission, learned senior counsel for the petitioner argued that there was no petition before the Election Commission raising the question as to whether the petitioner had become disqualified on any of the grounds other than under Section 35(k) and the finding of the Election Commission that the petitioner is not an ordinarily resident within the limits of the panchayat and that he is ordinarily resident in the UAE are, firstly, without jurisdiction and secondly, without any legal or factual basis. It is further argued that the petitioner was not put to notice of any plea that he has lost his right to be a voter in the panchayat. The entitlement to vote or otherwise is an issue to be decided by the electoral officer and not by the Election Commission at the first instance, it is argued. It is also pointed out that the physical absence of the petitioner from the limits of the WPC.1615/09 Page numbers panchayat on account of his avocation or business cannot be treated as a cause to hold that he has absented himself from the meetings, to incur the disqualification in terms of Section 35(k), unless cogent material is shown in support of the service of notice as provided for in clause (i) among the provisos to Section 35(k). The appreciation of evidence by the Election Commission by drawing inferences on the basis of the alleged non-residence of the petitioner in India is criticised as contrary to law and based merely on surmises and conjectures. Learned counsel for the petitioner made reference to the judgment of the Apex Court in Kuldip Nayar v. Union of India [2006 (7) SCC 1], wherein, it is held that residence within a State is not a necessary qualification for a candidate for election to the Rajya Sabha. 3.Per contra, learned counsel appearing for the panchayat argued that when an application is filed before the Election Commission under Section 36(1) of the PR Act seeking a decision on the question as to whether a member has become WPC.1615/09 Page numbers disqualified, the disposal of the petition has to result in the answer as to whether the member is disqualified or not. Accordingly, it is argued that when the petitioner, the member himself, sought an adjudication of the question as to whether he is disqualified, the Election Commission would be within jurisdiction to look into all counts of disqualification under Section 35, except clause (n), to decide whether the petitioner had incurred any disqualification and that the Election Commission cannot be tied down to decide on the question of disqualification only in terms of clause (k) of Section 35. This argument is further buttressed by referring to sub-section 3 of Section 36, which provides that a petition under Section 36(1) shall be disposed of in accordance with the procedure applicable under the Code of Civil Procedure when trying a suit. It is thus pointed out that the institution of the petition, when contested, gets the characteristics of a lis and in the case in hand, the panchayat had charged the petitioner of being a Non-Resident Indian and therefore, the petitioner had been put to notice of the plea of the panchayat that he was not WPC.1615/09 Page numbers ordinarily residing in the panchayat. Accordingly, learned counsel argued that though the Election Commission did not, in terms, state that the petitioner had become disqualified on any ground other than Section 35(k), he has, in fact, incurred disqualification under Section 35(h), which provides that a member would cease to hold office if he ceases to reside within the area of the panchayat concerned. Though much could not be pointed out on the basis of the evidence relating to the delivery of the notices for the meetings, the inferences drawn by the Election Commission cannot be stated to be unfounded, it is contended. 4.Learned standing counsel for the Election Commission placed the relevant materials, including the Commission's case file and pointed out the different guidelines issued by the Election Commission for determination as to whether a person is ordinarily resident at a particular place for being considered for inclusion in the voters list. He also pointed out the decisions of the Apex Court in Union of India v. Dudh Nath WPC.1615/09 Page numbers Prasad [(2000) 2 SCC 20], Lal Babu Hussein v. Electoral Registration Officer [(1995) 3 SCC 100], Election Commission of India v. Dr.Manmohan Singh [(2000) 1 SCC 591] and in K.Karunakaran v. Nawab Rajendran [1997 (3) KLT 15]. 5.Section 34 of the PR Act enumerates the disqualifications for being chosen as, and for being a member of a panchayat and Section 35 provides the disqualification of members. Therefore, if any among the disqualifications enumerated under Section 34 or under Section 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 Section 35(k), as noticed in the opening paragraph of this judgment, Section 37(2) provides only an WPC.1615/09 Page numbers opportunity to the disqualified member to restoration of the membership, cessation of which has visited him by the operation of Section 35(k). The notice provided for in Section 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 Section 35(k). The notice that the secretary is enjoined to give in terms of Section 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 Section 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 paragraph 5 of which, it has been stated that the moment a member entails disqualification under Section 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. WPC.1615/09 Page numbers The further statement in that judgment is that once an intimation under Section 37(2) of the PR 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 Section 35(k), in any manner, depends on the prescription as to notice, as contained in Section 37(2) of the PR Act. It it were to go to that extent, the said judgment in Gopi would have had to rest per in curiam. But, that WPC.1615/09 Page numbers precedent, in fact, does not lay down so. The suggestion that it does is not acceptable. 7.Section 36(1) of the PR Act provides that whenever a question arises as to whether a member, after having been elected so, has become disqualified under Section 30 or Section 35, except clause (n) thereof; any member of the panchayat concerned or any person entitled to vote at the election in which the member was elected, may file a petition before the Election Commission for decision. It also provides for a reference of such question by the secretary or officer authorised by the Government. The question that would ultimately arise for decision before the Election Commission is as to whether a member has become disqualified. All that Section 36(1) provides is for the raising of a question as to whether a member has become disqualified. 8.Adverting to Section 36(3), the procedure applicable to Code of Civil Procedure when trying a suit becomes relevant. The WPC.1615/09 Page numbers use of the phrase 'in accordance with the procedure' in sub- section 3 of Section 36 imports the entire procedure applicable to trial of a suit in terms of CPC to the trial of a petition under Section 36(1) of the PR Act. A suit of a civil nature, when instituted by the presentation of a plaint, germinates the process of trial of a civil suit. That includes the calling for of pleadings, production of documents, adducing evidence etc. The provisions in the Code provide for written statement of defence and also for further pleadings in the light of the written statement. The scope of a petition under Section 36(1) being one requiring the Election Commission to answer the question as to whether a member is disqualified or not, it necessarily carries with it the scope of raising all grounds of disqualification, if any. This is because the effect of disqualification is not dependent on any particular order as to disqualification being issued by the Election Commission or any other statutory authority. So much so, when an elected member facing a disqualification seeks an adjudication as to whether he has incurred disqualification, the adjudication by WPC.1615/09 Page numbers the Election Commission can necessarily spread over to the question as to whether the person is disqualified in terms of any of the other provisions also, if the case requires. In this context, it is pointed out that the Election Commission had, as a matter of fact, raised the issue as to whether the respondent (sic?) petitioner is disqualified to continue as a member of Karumkulam grama panchayat. In such a case, all that has to be ensured is that if the Election Commission intends to examine the disqualification on any ground not particularly referred to by the candidate in question, such other grounds as may be seen shall also be put to him since that is part of the basic norms of natural justice attendant to fair haring. 9.This incidentally leads to a submission made on behalf of the petitioner challenging the right of the panchayat to object to the application of the petitioner seeking adjudication as to the disqualification. Adverting to Section 36(1), it can be seen that a petition under that provision can be filed by any member of the panchayat or any other person entitled to vote at the WPC.1615/09 Page numbers election in which the member was elected. The continued officiation of a disqualified member is a challenge to the electorate. Any voter of the constituency gets the right to challenge the continuance in office of such a member. A deeper look at the constitutional and statutory situation in which the said provision stands would advise that fundamentally, the lis is between the citizenry, viz., the electorate and the elected member. Therefore, when the panchayat is called by the Election Commission in relation to an application for adjudication as to disqualification, it cannot be excluded from placing its contentions as to the disqualification or the status of disqualification which it would contribute to a particular member. If any member of the panchayat can file a petition under Section 36(1), I do not find it unreasonable for any other member of a panchayat or the panchayat committee collectively being permitted to contest the application. It is also unnecessary that any collective decision is taken in that regard. All that has to ultimately come out in that process is the truth of the situation as to WPC.1615/09 Page numbers whether the member is disqualified or not, and the guarantee to the citizenry that everything is transparent. In this view of the matter, I do not find any jurisdictional error for the Election Commission to go into the question of disqualification of a member on any ground other than the reason which prompted the particular member to seek adjudication by filing a petition under Section 36(1) of the PR Act. 10.In the case in hand, though the learned counsel for the panchayat attempted to state that the petitioner is disqualified in terms of Section 35(h), the Election Commission has not entered such a finding. All that the Election Commission has stated is that the petitioner is not an ordinary resident within the territory of the panchayat but is an ordinary resident of UAE and therefore, he is a Non-Resident Indian. This is stated in the context of appreciating the evidence regarding the service of notice and the alleged fraudulent service of notice. WPC.1615/09 Page numbers 11.Be that as it may, the argument on behalf of the panchayat as to whether the petitioner has ceased to reside within the area of the panchayat could be considered. 12.Section 34 provides the disqualifications of candidates. Section 29(a) provides that a person shall not be qualified for being chosen to fill a seat in a panchayat unless his name appears in the electoral roll of any constituency in the panchayat. Section 20(b) provides that subject to other prescribed conditions, every person who is ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency. Section 21(1) provides that a person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein. Sub-section 2 of Section 21 provides that a person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident thereon. The preparation of electoral rolls governed by Chapter VI of the PR WPC.1615/09 Page numbers Act is a condition precedent to the consideration of the proceedings leading to the election of the panchayat. Therefore, a person whose name appears in the electoral roll cannot thereafter be challenged as disqualified on grounds referable to citizenship or domicile except on a ground referable to Section 34(1)(d), which prescribes voluntary acquisition of citizenship of a foreign State, as a disqualification. Similarly, Section 35(c) provides voluntary acquisition of citizenship of a foreign State as a disqualification. That could be incurred by a member who has already entered office. The phrase 'ceasing to reside' in Section 35(h) when contrasted with the phrase 'ordinarily resident', also a term used in the same statute, tends to suggest that the concept of cessation as envisaged in Section 35(h) is more stringent in content than, and contextually congruent to, that which could result in the concept of 'ordinarily resident' for the purpose of Sections 20 and 21 of the PR Act. WPC.1615/09 Page numbers 13. Adverting to the provisions in the Constitution of India, it can be noticed that Article 326 provides, among other things, that the election to the House of People or to the Legislative Assembly of every State shall be on the basis of adult suffrage; as described therein, with voting right being available to those not disqualified otherwise, on the ground of non-residence in terms of law made by the appropriate Legislature. This provision in Article 326 of the Constitution is relevant in the context of the panchayats in view of Article 243-F 1(a), which provides disqualification from being elected if one is disqualified by or under any law for the purposes of elections to the Legislature of the State. With these constitutional provision in mind, adverting to the Representation of the People Act, 1950, hereinafter referred to as the 'RP Act', 'ordinarily resident' in a constituency is a condition prescribed for registration of a voter, going by Section 19 of that Act. Section 20 of the RP Act carries the same legal incidence as those emanating from Section 21 of the PR Act, already noticed above. WPC.1615/09 Page numbers 14.The gist of the above discussion leads to the conclusion that the concept of the terms ordinarily resident, ordinarily resides, non-resident etc., as used in the context of the Constitution of India and the RP Act as also Chapter VII of the PR Act which deals with the preparation of electoral rolls, is irrelevant to conclude on the quality of the term 'ceases to reside' which occurs in Section 35(h) of the PR Act. The difference does not depend upon the use of the word “constituency” or the word “panchayat” in the different constitutional or statutory provision. The thrust lies in the concept of “cessation”, in the context of the phrase “ceases to reside” in Section 35(h) of the PR Act. 15. 'To reside' is a term defined in the PR Act. Section 2(xxxvii) provides that unless the context otherwise requires, 'residence' or 'to reside' means; a person is deemed to have his 'residence' or to 'reside' in any house if he sometimes uses any portion thereof as a sleeping apartment as of right and a WPC.1615/09 Page numbers person is not deemed to cease to reside in any such house or portion thereof merely because he is absent from it or has elsewhere another dwelling in which he resides if he is at liberty to return to such house at any time and has not abandoned his intention of returning. The concept of 'residence', in such a statutory provision, is made with reference to the availability or not of the occupation of a place of residence or a dwelling unit. This pre-supposes the laudable constitutional object and the national goal that every citizen should have a dwelling unit as a shelter. As of now, that is neither a fundamental right nor a guarantee