Research › Search › Judgment

Kerala High Court · body

2000 DIGILAW 40 (KER)

Sebastian Joseph v. Devasia Antony

2000-01-21

K.A.ABDUL GAFOOR

body2000
Judgment :- K.A. Abdul Gafoor,J This Civil Revision Petition under S.115 of the Code of Civil Procedure is directed against the judgment of the District Judge, Alappuzha in Appeal (Election) No. 205 of 1996. That appeal was allowed. The election of the revision petitioner as Member of Ward No. V of Muttar Panchayat was declared void. Therefore, this Civil Revision Petition. As held by a Bench decision of this Court, revision petition under S.115 CPC is maintainable against the order of the District Judge in his capacity as appellate authority in election disputes relating to Panchayat election. 2. The first respondent who was also a candidate and secured votes next to the revision petitioner and another filed election petition challenging the election of the revision petitioner from the aforesaid Ward on the ground that the revision petitioner was disqualified in terms of S.34(1)(g) of the Kerala Panchayat Raj Act. S.34(1)(g) reads as follows: "34. Disqualification of candidates.- (1) A person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, if he- (g) is interested in a subsisting contract made with, or any work being done for, the Government or the Panchayat concerned except as a shareholder (other than a director) in a company or except as permitted by rules made under this Act." This is the only ground for disqualification urged in the election petition. The election of the revision petitioner was declared void as there was a subsisting contract in his name in respect of dewatering work in connection with a Padasekharam which was arranged by Punja Special Officer, a Government Official. That work was one arranged in terms of the Kerala Irrigation Works (Execution by Joint Labour) Act, 196/, hereinafter referred to as the Act. There was no other contract undertaken by the petitioner. This is an admitted fact. 3. As per S.34{1)(g) of the Kerala Panchayat Raj Act, 1994 extracted above, a person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, if he is interested in a subsisting contract; (1) made with the Government or the Panchayat concerned or, (2) if the contract is for any work being done for the Government or for the Panchayat concerned. It is admitted by the respondents that there is ik) contract undertaken by the petitioner with the Panchayat. It is admitted by the respondents that there is ik) contract undertaken by the petitioner with the Panchayat. Then, the only question is whether the petitioner had, at the time of election, any subsisting contract with the Government or whether the subsisting contract is for any work for the Government. The Government is defined in S.2(xvui) of the Kerala Panchayat Raj Act, 1994. "Government" means the Government of Kerala. The Government of Kerala can in its executive action only be represented by the Governor of Kerala in terms of Art.166 of the Constitution of India. A contract made in exercise of the executive power of the State shall be expressed to be made by the Governor of the concerned State in terms of Art.299 of the Constitution of India. 4. The petitioner submits that his contract is with the convenor of the Padasekharam Committee which has been counter signed by the Punja Special Officer. The appellate judgment which is impugned in this revision shows that the work has been awarded to the petitioner herein by the Punja Special Officer who is a State Government Official and remuneration for the work has been received by the petitioner herein by executing a receipt with the Punja Special Officer. This shows that this is a transaction with the State Government 5. The Punja Special Officer cannot be equated with the Government. The Punja Special Officer cannot represent the State Government Even if the contract entered into by the petitioner is with the Punja Special Officer, it cannot be said that it is a contract with the Government; but it is only a contract with the Punja Special Officer. The terms of the contract and also the provisions contained in Ss.4 and 5 of the Act clearly provide that the payment to be made to the Contractor shall ultimately flow from the individual cultivators who themselves formed as Padasekharam. Therefore, the payment for contract is from out of private pocket and not from State pocket Therefore, the conclusion arrived at by the District Judge that the transaction is with the State Government is totally incorrect. There is ho contract by the petitioner with the Government as envisaged under S.34(1)g of the Kerala Panchayat Raj Act. 6. Admittedly, this is a contract for dewatering work which according to the petitioner is one with the Convenor of the Padasekharam Committee. There is ho contract by the petitioner with the Government as envisaged under S.34(1)g of the Kerala Panchayat Raj Act. 6. Admittedly, this is a contract for dewatering work which according to the petitioner is one with the Convenor of the Padasekharam Committee. According to the respondents, the Punja Special Officer was only a co-ordinator. The work was really to be done by the members of the Padasekharam Committee. The expenses have to be met finally by the individual cultivators. The work done is for the benefit of the members of the Padasekharam. Thus, it is not a work done for the Government. It is only a work done for certain private individuals who are holding wet land within a particular Padasekharam. 7. The petitioner was not thus interested in a subsisting contract made with, or any work being done for the Government. Necessarily he cannot be said to be disqualified merely because he had a subsisting contract either with the Punja Special Officer or with the Padasekharam Committee as contended by the respective parties. That contract will not come within the ambit of S.34(g) of the Kerala Panchayat Raj Act to disqualify the petitioner for being elected or to continue as ah elected member of the Panchayat. Consequently, the impugned judgment is set aside restoring that of the Munsiff's Court in O.P. (Election) 1/ of 1995. The C.R.P. is allowed as above.