IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 WP(C).No. 23274 of 2010(H) -------------------------------- PETITIONERS: ---------------- 1. UNNIKRISHNAN P.K., S/O.PARAMESWARAN NAIR, AGED 49 YEARS, PEROKARAKATTALATH HOUSE, (KRISHNALAYAM), KALLADIPATTA P.O., ONGALLOOR PANCHAYATH, PATTAMBI, PALAKKAD DISTRICT (MEMBER, WARD NO.19, ONGALLOOR PANCHAYATH, PATTAMBI, PALAKKAD DISTRICT. 2. P.K.ABOOBACKER, S/O.KUNJAMMU, PADINJARADIL HOUSE, VADANAMKURISSI, KARAKKAD, ONGALLOOR PANCHAYATH, PATTAMBI, PALAKKAD DISTRICT (MEMBER, WARD NO.11, ONGALLOOR PANCHAYATH, PATTAMBI, PALAKKAD DISTRICT) 3. V.A.MOHAMMED, S/O.ABDULLA, VARAMANGALATH HOUSE, KONDURKKARA P.O., VIA. KALLADIPATTA, ONGALLOOR PANCHAYATH, PATTAMBI, PALAKKAD DISTRICT (MEMBER, WARD NO.17, ONGALLOOR PANCHAYATH, PATTAMBI, PALAKKAD DISTRICT) BY MR.T.RAMPRASAD UNNI, ADVOCATE. MS.SMITHA GEORGE, ADVOCATE. RESPONDENTS: ------------------ 1. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. PIN - 695 001. WP(C).No. 23274/2010 2. THE ONGALLOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KALLADIPETTA P.O., PIN - 679 313, PALAKKAD DISTRICT. ADDL R3. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM IS IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED 28.07.2010 IN I.A.10451/2010. BY MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR ADDL.R3 MR.S.P.ARAVINDAKSHAN PILLAY, ADVOCATE, FOR R2. MS.N.SANTHA, ADVOCATE, FOR R2. MR.S.A.ANAND, ADVOCATE, FOR R2. MR.PETER JOSE CHRISTO, ADVOCATE, FOR R2. MR.A.J. VARGHESE, SR. GOVERNMENT PLEADER FOR R1. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.23274/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF NOTICE DTD. 28.5.10 RECEIVED BY 1ST PETITIONER BEFORE R2. EXT. P2 : COPY OF NOTICE DTD. 28.5.10 RECEIVED BY 2ND PETITIONER ALONG with REPLY. EXT. P3 : COPY OF NOTICE DTD. 25.5.10 RECEIVED BY 3RD PETITIONER ALONG WITH REPLY EXT. P4 : COPY OF DECISION OF PANCHAYATH COMMITTEE DTD. 1.6.10. EXT. P5 : COPY OF PETITION FILED UNDER SECTION 191(4) OF KERALA PANCHAYATH RAJ ACT BEFORE R1 BY 1ST PETITIONER, ALONG WITH STAY PETITION. EXT. P6 : COPY OF PETITION FILED UNDER SECTION 191(4) OF KERALA PANCHAYATH RAJ ACT BEFORE R1 BY 2ND PETITIONER, ALONG WITH STAY PETITION. EXT. P7 : COPY OF PETITION FILED UNDER SECTION 191(4) OF KERALA PANCHAYATH RAJ ACT BEFORE R1 BY 3RD PETITIONER, ALONG WITH STAY PETITION. EXT. P8 : COPY OF ORDER DTD. 6.7.10 PASSED BY R1 IN RESPECT OF 1ST PETITIONER. EXT. P9 : COPY OF ORDER DTD. 6.7.10 PASSED BY R1 IN RESPECT OF 2ND PETITIONER. EXT. P10 : COPY OF ORDER DTD. 6.7.10 PASSED BY R1 IN RESPECT OF 3RD PETITIONER. EXT. P11 : COPY OF JUDGMENT DTD. 30.6.10 IN W.P.(C) 20293/2010. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.23274 OF 2010 --------------------------------------- Dated this the 4th day of August, 2010. J U D G M E N T The petitioners herein are aggrieved by the communications (produced as Exhibits P8 to P10) issued by the Government whereby the Government directed the petitioners to approach the State Election Commission to challenge the proceedings of the Panchayath disqualifying them from continuing as members. 2. The petitioners are the elected members of the Ongallur Grama Panchayath in Palakkad District. The Secretary of the Panchayath issued a notice informing their disqualification as per Exhibit P1 for failure to attend three consecutive meetings of the Finance Standing Committee ie. on 12.03.2010, 22.04.2010 and 24.05.2010. 3. Thereafter, the petitioners moved the Committee of the Panchayath for restoration of membership, which was not allowed by the Committee. The same was challenged before the Government under Section 191(4) of the Kerala Panchayath Raj W.P.(C) No.23274/2010 2 Act as per Exhibits P5 to P7. 4. Exhibits P8 to P10 communications are issued by the Government on the petitions submitted by the petitioners, in the light of the directions issued in Exhibit P11 judgment to consider and pass orders on Exhibits P5 to P7. The view taken by the Government in Exhibits P8 to P10 is that it is upto the petitioners to move the Election Commission. 5. On issuance of notice, learned Standing Counsel for the Election Commission also appeared and submitted that the petitioners have got a remedy to move the Election Commission itself. Learned counsel for the Panchayath also submitted that it is upto the petitioners to move the Election Commission in the matter. Even though this Court in an earlier judgment in Rajan vs. Kerala State Election Commission (1999(3) KLT 601) took the view that once a member moves the Committee itself for restoration and if the same is not allowed by the Committee, he cannot move the Election Commission to remove the disqualification, later another Bench of this Court in Anil Kumar vs. Kerala State Election Commission (2007(2) KLT 303) W.P.(C) No.23274/2010 3 took the view that this remedy is not barred. 6. In that view of the matter, it is upto the petitioners to move the Election Commission. Learned counsel for the petitioners prayed that till the petitioners move the Election Commission for appropriate orders, they may be allowed to continue as members. This submission is opposed by the learned counsel appearing for the Panchayath. Evidently, going by the provisions of Section 36(2) of the Kerala Panchayath Raj Act, the Election Commission is empowered to pass appropriate interim orders. Therefore, if the petitioners move the Election Commission challenging their disqualification and file an application for interim relief, the Election Commission will consider the same in accordance with law and pass appropriate orders with notice to the Panchayath. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp