IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 WP(C).No. 26362 of 2010(S) -------------------------- PETITIONERS: --------------- 1. P.R.SADASIVAN PILLAI, S/O.P.S.RAMAN PILLAI, AGED 63 YEARS, RESIDING AT THAIPARAMBIL HOUSE, WEST KODUNGALLOOR P.O., ALUVA PIN 683 110. 2. M.NANDAKUMAR, S/O.M.PARAMESWARAN NAIR, AGED 46 YEARS, MANAZHI HOUSE, L-44, CHANGAMPUZHA NAGAR, CHANGAMPUZHA NAGAR P.O., KALAMASSERY, PIN 682 O33. BY ADV. SRI.P.A.ABDUL JABBAR SRI.C.K.RAFEEK RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE KERALA STATE ELECTION COMMISSION, CORPORATION NEW BUILDING, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN 695 033. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R2 Sr. GOVERNMENT PLEADER SRI. T.K. HOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26362 of 2010 APPENDIX PETITIONERS EXHIBITS: EXT.P1: TRUE COPY OF THE REPRESENTATION SENT BY THE 1ST PETITIONER TO THE 2ND RESPONDENT THROUGH FAX EXT.P2: ENGLISH TRANSLATION OF EXHIBIT P1 SECOND RESPONDENT'S EXHIBITS: EXT. R2(a) THE PHOTOCOPY OF THE D.O LETTER NO.6598/B/2007/SEC DATED 18.10.2007 OF THIS RESPONDENT EXT. R2 (b) THE PHOTOCOPY OF THE MINUTES OF THE MEETING HELD ON 05.02.2008 EXT. R2 (c) THE PHOTOCOPY OF THE LETTER NO.6598/B/2007/SEC DATED 21.01.2009 OF THIS RESPONDENT ADDRESSED TO THE HON'BLE CHIEF MINISTER OF KERALA ENGLISH TRANSLATION OF EXT. R2 (c) EXT. R2 (d): THE PHOTOCOPY OF THE LETTER D.O NO.63562/EM3/07/LSGD DATED 05.02.2009 OF THE PRINCIPAL SECRETARY TO GOVERNMENT, LSGD TO THE STATE ELECTION COMMISSIONER EXHIBIT R2 (e) THE PHOTOCOPY OF THE LETTER D.O NO.6598/B/09/SEC DATED 18.02.2009 ISSUED BY THE STATE ELECTION COMMISSION TO THE PRINCIPAL SECRETARY TO GOVERNMENT, LSGD. EXT. R2 (f): THE PHOTOCOPY OF THE LETTER D.O No.6598/B/07/SEC dated 17.3.2009 OF THED STATE ELECTION COMMISSIONER ISSUED TO THE PRINCIPAL SECRETARY TO GOVERNMENT, LSGD. EXT. R2 (g) THE PHOTOCOPY OF THE LETTER D.O No.6598/B/2007/SEC dated 07.05.2009 OF THE STATE ELECTION COMMISSIONER ISSUED TO THE PRINCIPAL SECRETARY TO GOVERNMENT, LSGD. EXT. R2 (h) THE PHOTOCOPY OF THE LETTER D.O No.6598/B/2007/SEC DATED 11.08.2009 OF THE STATE ELECTION COMMISSIONER ADDRESSED TO THE HON'BLE MINISTER FOR LOCAL SELF GOVERNMENT DEPARTMENT ENGLISH TRANSLATION OF EXT. R2 (h) EXT. R2 (i) THE PHOTOCOPY OF THE LETTER D.O No.6598/B/2007/SEC dated 07.08.2010 OF THE STATE ELECTION COMMISSIONER ADDRESSED TO THE GOVERNMENT. WP(C).No. 26362 of 2010 -2- EXT. R2 (j) THE PHOTOCOPY OF THE MINUTES OF THE MEETING DATED 12.08.2010 CONVENED BY THE STATE ELECTION COMMISSION WITH POLITICAL PARTIES ENGLISH TRANSLATION OF EXT. R2 (j) EXT. R2 (K) THE PHOTOCOPY OF THE LETTER NO.6958/b/2007/SEC Dated 12.08.2010 OF THE STATE ELECTION COMMISSIONER ADDRESSED TO THE CHIEF SECRETARY, GOVERNMENT OF KERALA. ENGLISH TRANSLATION OF EXT. R2 (k) EXT. R2 (l) THE PHOTOCOPY OF THE D.O LETTER NO.51919/EMI/2010/LSGD DATED 13.8.2010 OF THE GOVERNMENT ADDRESSED TO THE STATE ELECTION COMMISSIONER EXT. R2 (m) THE PHOTOCOPY OF THE OFFICE NOTE NO.4427/B/2010/SEC DATED 19.8.2010 OF THE STATE ELECTION COMMISSIONER /TRUE COPY/ P.A TO JUDGE C.N.RAMACHANDRAN NAIR & K.SURENDRA MOHAN, JJ. ------------------------- W.P (C) No.26362 of 2010 -------------------------- Dated this the 31st August, 2010 J U D G M E N T Ramachandran Nair, J. This is a public interest litigation filed by two social workers for a direction to the State Election Commission to conduct election to the Local Self Government Institutions namely, Panchayats, Municipalities and Municipal Corporations strictly in terms of the constitutional provisions namely Article 243 E and 243 U of the Constitution of India. 2. We have heard learned counsel appearing for the petitioners, learned standing counsel appearing for the State Election Commission and learned Senior Government Pleader appearing for the State. 3. The counsel for the petitioners has relied on constitutional provisions and various decisions of the Supreme Court and High Courts and particularly the decision of the Supreme Court in Kishansing Tomar Vs. W.P (C) No.26362 of 2010 2 Municipal Corporation of the City of Ahmedabad [2006 (8) SCC 352] and contended that constitutional provisions visualise the holding of election in time so that simultaneously on the expiry of five years term of the previous council of the Panchayats or Muncipal Corporations, new council takes over charge. 4. It is conceded that the five year tenure of the present panchayats and other local Self Government Institutions is expiring on 1.10.2010 and since elections are not notified obviously installation of the new elected bodies will not be possible in terms of the above provisions of the constitution. 5. However, the Election Commission as well as the State Government have filed separate counter affidavits explaining the circumstances under which election happens to be getting delayed. They have stated about the major amendments that were made to the Kerala Panchayat Raj Act and Municipalities Act in 2009 providing reservation for women, enhancement of wards and later Government Orders converting various W.P (C) No.26362 of 2010 3 Panchayats to Municipalities and merging the same with Municipalities and Municipal Corporations. There is no need for us to consider the specific changes made in the case of several Panchayats and Municipalities which are not disputed by the petitioners. 6. The Supreme Court has in the decision above declared that the provisions of the constitution provide for holding of election strictly within time and if the State Government does not co-operate with the Election Commission, the State Election Commission can even approach the High Court for mandatory direction to the State Authorities to render all assistance for holding election in time. In this case, there is no case for the Election Commission that the State Authorities have not co-operated with the commission in holding the election in time. On the other hand what is clear from the counter affidavit filed by the State Commissioner is that the circumstances which led to the delay in holding the election are not caused by the State Government but were rather inevitable consequence of major amendments that W.P (C) No.26362 of 2010 4 led to change in the constitution of various Local Self Government Institutions. The State Election Commission has produced documents and given a commitment to the effect that election for all the Local Self Government Institutions in the State as a whole could be held so that the new elected bodies could be installed in all institutions at least by 1st November 2010. Therefore, there is going to be only a delay of one month in holding the election and in re-installing the new councils or committees for all the Local Self Government Institutions. 7. The petitioners' prayer is that the changes that are taking place such as delimitation, reservation of wards for members of the scheduled caste and scheduled caste communities etc., in the case of some Local Self Government Institutions should not lead to delay in election to the other Local Self Government Institutions. The relief sought is for a direction to the Election Commission to hold the election in two phases so that at least for the sizable number of Local Self Government Institutions election will be held and new committees installed strictly W.P (C) No.26362 of 2010 5 in terms of the constitutional provisions. 8. We find force in the objection raised to this by the State Government and the State Election Commission because holding of election for all Local Self Governments Institutions in the State in one phase will be best for all concerned. In the first place, holding of election in two phases may lead to additional cost to the State. Further if election is declared in stages, the model conduct after declaration of election will apply to the representatives of all the Local Self Government Institutions disabling them from taking any policy decision. Besides the difficulties and additional cost on account of holding the election in two stages, the delay is only a matter of one month and so much so Election Commission can be permitted to hold the election in one phase for all institutions in the State. Based on the undertaking given by the Election Commission that elections will be held so as to install the newly elected councils in all the Local Self Government Institutions at least by 1st November 2010, we reject the petitioners' prayer for direction to hold election in two W.P (C) No.26362 of 2010 6 phases. 9. We,therefore, dispose of the writ petition by declaring the legal position canvassed by the petitioners that timely election is mandatory under the constitution but by allowing the Election Commission to hold the election in one phase so that elected bodies can take office by 1st November 2010. Even though election is going to be delayed by one month the elected members will vacate the office on expiry of five years tenure. Consequently the Government has to resort to Section 151 of the Kerala Panchayat Raj Act and Section 65 of the Kerala Municipalities Act to make alternate arrangements i.e by appointing Special Officer or Administrative Committees in the place of the Panchayat Committees or Municipal Councils. The above enabling provisions are meant only to meet exceptional circumstances arising in the case of few Local Self Government Institutions and not meant to be used for appointing Special Officers or Administrative committees in all the Local Self Government Institutions in the State on account of delay in election. Of course, W.P (C) No.26362 of 2010 7 during the absence of elected bodies in the Panchayat or the Municipal Authorities the officers appointed under the above provisions should not take any policy decision but they can only attend to routine matters. However, in order to avoid a vacuum, it is for the State Government to notify Departmental Officers to act as Special Officers or Administrative Committees to take care of emergencies in Local Self Government Institutions. In fact, the same officer or same committee can function as such for more than one Local Self Government Institution. C.N.RAMACHANDRAN NAIR JUDGE K.SURENDRA MOHAN JUDGE ma