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2002 DIGILAW 409 (KER)

Gopi v. Maneed Grama Panchayat

2002-06-28

KURIAN JOSEPH

body2002
Judgment :- Kurian Joseph, J. The point and moment of disqualification of an elected member of Grama Panchayat and the stage of jurisdiction of the State Election Commission are the issues which arise for consideration in this Original Petition. It may not be necessary to go into the factual details for the purpose of disposal of this Original Petition and it will not be proper also for this Court at this stage to go into such questions. Yet, it is necessary to refer to certain facts so as to understand the law. 2. Petitioner is a member of the Maneed Grama Panchayat, Piravom. He was arrested in connection with Crime No. 18/2002 of Ramamangalam Police Station registered under S.302 and other sections of the Indian Penal Code. It is not in dispute that the petitioner did not attend the meetings of the Panchayat Committee held on 5. 2. 2002, 18. 3. 2002, 25.3.2002 and 26.3.2002. He also did not attend the meetings of the Standing Committee on Finance held on 22.2.2002 and 20.3.2002. According to the petitioner he submitted an application dated 25.3.2002 seeking exemption from attending the meetings as he was in judicial custody. In the meanwhile the meeting scheduled on 8.4.2002 was adjourned. But according to the petitioner the meeting was held with the participation of five members including the petitioner and he withdraw his application for leave. The last disputed meeting attended by the petitioner is on 22.1.2002. According to the Panchayat, the petitioner is disqualified under S.35(k) of the Act having not participated in the meetings of the Panchayat for three months and the Committee having decided not to grant leave. It was thus decided by the Committee as per Ext. P3 resolution taken on 15.4.2002. Thereafter as per Ext. P2 letter dated 22.5.2002 the petitioner was given intimation by the Secretary of the Panchayat that he is disqualified under S.35(k) of the Act having not participated in the meetings of the Panchayat during three months after 22.1.2002. Petitioner challenges Ext. P2 intimation by the Secretary and also prays for a declaration that the Panchayat Committee has no authority to disqualify a member of the Panchayat. Petitioner also has sought for a consequential declaration that he continues to be a member of the Panchayat. It appears that the Director of Panchayats, in the meanwhile, has taken a view as per Ext. P5 that Ext. Petitioner also has sought for a consequential declaration that he continues to be a member of the Panchayat. It appears that the Director of Panchayats, in the meanwhile, has taken a view as per Ext. P5 that Ext. P3 resolution is not in order. 3. On 16.4.2002 it is seen from Annexure A produced along with the statement filed by the State Election Commission that the Secretary of the Grama Panchayat had referred the matter for a decision by the State Election Commission. The question referred is whether the petitioner had become disqualified in the circumstances. It is seen from Annexure A that there is also a request to take a decision regarding the participation of the petitioner in the meanwhile. As per Annexure C the District Collector had also addressed the State Election Commission to take a decision on the dispute. But the stand taken by the Election Commission is that it is for the Secretary of the Grama Panchayat to intimate the fact of disqualification in writing to the person concerned and to report the same at the next meeting of the Panchayat as per S.37(2) of the Panchayat Raj Act and thereafter only any reference would lie before the Commission and therefore the reference made by the Grama Panchayat Secretary as also the District Collector were refused to be entertained by the State Election Commission holding that the reference is premature. That intimation is Annexure B dated 22.4.2002. It is the stand of the Grama Panchayat that the State Election Commission alone is competent to decide the issue of disqualification and once intimation is given to a member informing the disqualification under S.35(k), the Panchayat can do anything in the matter only if the State Election Commission issues any orders either interim or final. It is contended that there is no adjudication by the Secretary and the Secretary only intimates the fact of statutory operation by which the person incurred the disqualification of having not attended the three meetings in three months continuously. It is also submitted that against such communication the remedy open to the petitioner is twofold; (i) to approach the Election Commission; or (2) to apply for restoration. As far as Ext. P3 decision of the Panchayat is concerned, the petitioner has to invoke the power of the Government under S.191 if he is aggrieved. 4. It is also submitted that against such communication the remedy open to the petitioner is twofold; (i) to approach the Election Commission; or (2) to apply for restoration. As far as Ext. P3 decision of the Panchayat is concerned, the petitioner has to invoke the power of the Government under S.191 if he is aggrieved. 4. Under S.36 of the Kerala Panchayat Raj Act, 1994, whenever a question arises as to whether a member has become disqualified under S.30 or under S.35 (except under S.35(n)), it is open to any member of the Panchayat concerned or any person entitled to vote at the election in which the member was elected to file a petition for a decision by the Commission. It has now been held by a Bench decision of this Court in Rajan v. Kerala State Election Commission, 1999 (3) KLT 601 that an aggrieved member also is entitled to approach the Commission. After the amendment by Act 13/1999 with effect from 24.3. 1999 the Secretary of the Grama Panchayat or any officer authorised by the Government are also entitled to refer such a question to the Commission. It is significant to note that as far as aggrieved member/ members of the Panchayat/voters are concerned, they have to file a petition before the State Election Commission as and when the question arises; whereas in the case of the Secretary of the Grama Panchayat or the officer authorised by the Government, they are entitled to refer a question for decision by the Commission. That necessarily calls for an analysis as to what is the point and moment of such a petition/ reference, the subtle distinction between the two and consequences thereof. 5. In order to tackle that question we have to understand the scheme of S.37(2) of the Act which reads as follows: "37(2). When a person ceases to be member under clause (k) or S.35 the Secretary of the Panchayat concerned shall at once intimate the fact in writing to such person and report the same at the next meeting of the panchayat. When a person ceases to be member under clause (k) or S.35 the Secretary of the Panchayat concerned shall at once intimate the fact in writing to such person and report the same at the next meeting of the panchayat. If such person applies for restoration to the Panchayat on or before the date of the next meeting or within fifteen days of the receipt by him of such intimation, the Panchayat may at the meeting next after the receipt of such application restore him to his office of member, " The moment a member entails a 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 and once an intimation under S.37(2) of the Act is given to a member, he cannot continue to be a member or participate in any proceedings unless appropriate orders either interim or final are issued by the Election Commission or unless the Panchayat decides on his application to restore his membership. 6. But a question may arise as to the disqualification of a member even before the Secretary of the Panchayat gives an intimation to the member or reports the matter to the Panchayat. It is significant to note that the expression 'question' has been understood as 'dispute' by the Division Bench in Rajan's case (supra). Even otherwise the Legislature uses the expression under S.36 "whenever a question arises". The question is said to arise when the membership becomes questionable. The membership becomes questionable not only at the instance of the member concerned but at the instance of (1) any other member, or (2) any voter, or (3) the Secretary, or (4) the Officer specifically authorised by the Government. Those persons are entitled to approach the Election Commission under S.36, even before the Secretary of the Grama Panchayat intimates the fact to the member concerned. It is also to be noted that S.36 operates in a wide range of situations under S.30 and S.35 whereas S.37(2) deals only with S.35(k) situation. As to whether it is a fact that a person has ceased to be a member can itself be a matter of reference as far as the Secretary or the authorised officer is concerned. It is also to be noted that S.36 operates in a wide range of situations under S.30 and S.35 whereas S.37(2) deals only with S.35(k) situation. As to whether it is a fact that a person has ceased to be a member can itself be a matter of reference as far as the Secretary or the authorised officer is concerned. The affected as well as aggrieved members and voters are concerned they are entitled to file petition before the Election Commission for a decision as to the acquisition of disqualification. At that stage, unless there is an interdiction by Election Commission under S.36(2), the member concerned is eligible to retain his membership. But once an intimation is given to a member under S.37(2), the member concerned cannot retain his membership unless the Election Commission passes appropriate orders either interim or final. In other words, even before intimation under S.37(2) a reference or petition under S.36 before the Commission would be maintainable. Of course the other option to the member concerned is to seek restoration under S.37(2) of the Act. 7. Sri. Mathew Zachariah, learned counsel appearing for the petitioner, however contends that an intimation under S.37(2) of the Act does not have the effect of automatic termination of membership. It is submitted that there are conflicting Bench decisions of this Court and the matter requires consideration by a larger Bench. I am afraid the contention cannot be accepted. The decision relied on by the learned counsel is Bhaskaranv. Director of Panchayats, 1991 (1) KLT 177. For one thing it is to be noted that the decision is with regard to the provisions of the Kerala Panchayats Act, 1960. S.20 of the Act provides that "a member shall cease to hold office" if he acquires the enumerated disqualifications and S.20(m) is the same as S.35(k) subject to minor changes in the matter of disqualification pursuant to absence from meetings in three months. S.22(4) deals with the power of the Munsiff to decide on the disputes which reads as follows: "22(4). S.22(4) deals with the power of the Munsiff to decide on the disputes which reads as follows: "22(4). If at any time, on the application of any person whose name appears in the electoral roll and who is not otherwise disqualified or of the executive authority of the Panchayat under direction from the Panchayat or suo mote the Munsiff, after such inquiry as he considers necessary and after giving an opportunity to the member concerned to be heard is satisfied that any member, elected under S.6 or S.12 or nominated under S.6, has incurred any of the disqualifications mentioned in S.20 after his assumption or office as member, the Munsiff shall declare that such member shall cease to hold office and upon such declaration, the member concerned shall vacate his office. Such declaration shall be final. Pending such declaration, the member shall be entitled to act as if he were not disqualified. " It may also be noted that the statute specifically provided that pending such declaration by the Munsiff the member was entitled to act as if he were not disqualified. Coming to the Kerala Panchayat Raj Act, 1994, S.35 provides that a member shall hold the office if he acquires the enumerated disqualifications and S.35(k) deals with the absence from meetings. S.36 provides for the jurisdiction of the State Election Commission, which as it originally stood reads as follows: "36. Determination of subsequent disqualification of a member. - (1) Whenever a question arises as to whether a member has become disqualified under S.30 or S.35 after having been elected as a member, any member of the Panchayat concerned or any other person entitled to vote at the election in which the member was elected, may file a petition before the State Election Commission, for decision. (2) The State Election Commission, after making such enquiry as it considers necessary, shall decide the petition referred to in sub-s.(1) whether or not such member has become disqualified and the decision shall be final; so however that pending such decision, the member shall be entitled to act as if he were not disqualified. (3) Every petition referred to in sub-s.(1) shall be disposed of in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when trying a suit". The Act underwent a sea change by amendment as per Act 13 of 1999. (3) Every petition referred to in sub-s.(1) shall be disposed of in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when trying a suit". The Act underwent a sea change by amendment as per Act 13 of 1999. The major change in S.35 is that in case of acquisition of any of the enumerated disqualifications, such a person shall not continue as member of the Panchayat, whereas the unamendsd provision used the expression 'cease to be a member'. S, 36 also was amended. The major amendments were that (1) the Secretary or the officer authorised by the Government was given the power to refer a. question for decision by the State Election Commission as per the proviso to S.36(1}(2) power was conferred on the State Election Commission to pass interim orders with regard to the continuance of the member in whose case a question has arisen regarding his continuance during the pendency of either a petition under S.36(1) or a reference under the proviso to S.36(1); (3) Provision for automatic continuance of membership during the pendency of proceedings before the Election Commission was deleted. Thus it may be noted that prior to this amendment the position was that a person in whose case a question has arisen before the State Election Commission was entitled to continue as member during the pendency of the decision by the Commission; whereas after Act 13 of 1999 with effect from 24. ~~ ~~~~ such person is entitled to continue only subject to the interim orders of the State Election Commission. 8. Bearing in mind the impact of the amendments referred to above I shall now refer to the two Bench decisions. In Bhaskaran v. Director of Panchayats, 1991(1) KLT 177, it was held that once a person in whose case a question has arisen, raises a dispute the Secretary has to refer the matter for decision by the Munsiff under S.22(4) and only on declaration by the Munsiff, the person ceased to be a member. The relevant portion at paragraph 6 reads as follows: "6. But, it has to be pointed out that specific power has been conferred on the Munsiff in the matter of declaring as to whether a particular person has ceased to be a member on his incurring disqualification as mentioned in S.20(m). The relevant portion at paragraph 6 reads as follows: "6. But, it has to be pointed out that specific power has been conferred on the Munsiff in the matter of declaring as to whether a particular person has ceased to be a member on his incurring disqualification as mentioned in S.20(m). Sub-s.(4) of S.22, which is relevant for the purpose may be extracted as follows: "If at any time, on the application of any person whose name appears in the electoral roll and who is not otherwise disqualified or of the executive authority of the Panchayat under direction from the Panchayat or suo mote the Munsiff, after such inquiry as he considers necessary and after giving an opportunity to the member concerned to be heard, is satisfied that any member, elected under S.6 or S.12 or nominated under S.8, has incurred any of the disqualifications mentioned in S.20 after his assumption of office as member, the Munsiff shall declare that such member shall cease to hold office and upon such declaration, the member concerned shall vacate his office. Such declaration shall be final. Pending such declaration; the 'member shall be entitled to act as if he were not disqualified. " Thus, we find that there are two provisions, which govern disqualifications contemplated by Clause (m) of S.20, Sub-s.(2) of S.21 is one provision which requires the executive authority to intimate the person concerned as also the Panchayat about a particular member having incurred disqualification under Clause(m)of S.20. It also enables the concerned member to seek restoration of his membership on his having incurred disqualification under Clause (m) of S.20. The Panchayat has the discretion if requested by the particular person who has incurred disqualification to restore membership to him. That power can be exercised only on two occasions during the term of office of the member. At the same time, we find another provision viz., sub-s.(4) of S.22, which confers jurisdiction on the Munsiff to make a declaration that a particular member has incurred one of the disqualification mentioned in S.20. The consequence of the disqualification is that the particular person ceases to be a member, whereupon the member concerned shall vacate the office. Though the two provisions apparently seem to govern the same aspect, it is clear that they operate in two different clear-cut areas. The consequence of the disqualification is that the particular person ceases to be a member, whereupon the member concerned shall vacate the office. Though the two provisions apparently seem to govern the same aspect, it is clear that they operate in two different clear-cut areas. Sub-s.(2) of S.21 requires the executive authority to apply his mind to the question as to whether in his opinion the member has incurred disqualification under Clause (m) of S.20. If he is of opinion that the particular member has incurred disqualification, he is required to give intimation to the member concerned and report the matter to the Panchayat at its next meeting. Once that is done, it is for the member concerned to accept the opinion of the executive authority that he has ceased to be a member or to reject the opinion of the executive authority. If he accepts the opinion of the executive authority that he has ceased to be a member, he is entitled to seek restoration of his membership, by making an appropriate application for that purpose to the Panchayat. If such an application is made, the Panchayat has the discretion to restore. But such restoration of disqualification can be made only on two occasions under sub-s.(2) of S.21. The Panchayat has no jurisdiction or power to grant restoration if the disqualification mentioned in Clause (m) of S.20 is incurred for a third occasion. In cases where the member concerned takes the stand that he has not incurred the disqualification under Cl. (m) of S.20 and has therefore not ceased to be a member, he is not required to request the Panchayat to restore his membership. If such person takes the stand that he has not incurred the disqualification under Cl. (m) of S.20 and has therefore not ceased to be a member, this controversy cannot be resolved by the executive authority under sub-s.(2) of S.21. The question of applying for restoration arises only when the member accepts the opinion of the executive authority that he has incurred the disqualification under Cl. (m) of S.20 and has ceased to be a member. If. the member concerned does not accept the view of the executive authority in this behalf the Panchayat cannot proceed on the basis of the opinion of the executive authority that he has ceased to be a member. (m) of S.20 and has ceased to be a member. If. the member concerned does not accept the view of the executive authority in this behalf the Panchayat cannot proceed on the basis of the opinion of the executive authority that he has ceased to be a member. The Panchayat can act in such circumstances only on the declaration to be made by the Munsiff in accordance with sub-s.(4) of S.22. We are, therefore, of the opinion that if the member is alleged to have incurred the disqualification and the said member does not accept the position, he cannot be assumed to have incurred disqualification under Cl. (m) of S.20 and ceased to be a member of the Panchayat. In such a situation, the jurisdiction of the Munsiff has to be invoked under sub-s.(4) of S.22 for the purpose of making a declaration that the person concerned has incurred the disqualification under Cl. (m) of S.20 and has ceased to be a member. That is the clear effect of the aforesaid two statutory provisions. Sub-s.(4) of S.22 makes it clear that pending such declaration the member shall be entitled to act as if he were not disqualified. This makes it clear that even if the executive authority is of opinion that the member has incurred disqualification under Cl. (m) of S.20 and has ceased to be a member, if the concerned member does not accept that point of view, the Panchayat cannot act on the opinion of the executive authority and prevent the member concerned from functioning as a member of the Panchayat. He can be prevented as a member of the Panchayat only on a declaration being made by the Munsiff under sub-s.(4) of S.22. " (emphasis supplied) It may be seen that in view of the unamended provision only the Bench took the view that in case a member disputes the fact, it is for the executive authority to file a petition and pending the application before the Munsiff the person was entitled to continue his membership. Rajan v. Kerala State Election Commission, 1999(3) KLT 601 is decided after the amendment. There the Bench took the view as follows: "6. Ss, 30 to 34 of the Act identify the persons who are disqualified from contesting an election to the Panchayat. S.35 of the Act provides for loss of membership in a Panchayat. Rajan v. Kerala State Election Commission, 1999(3) KLT 601 is decided after the amendment. There the Bench took the view as follows: "6. Ss, 30 to 34 of the Act identify the persons who are disqualified from contesting an election to the Panchayat. S.35 of the Act provides for loss of membership in a Panchayat. That Section provides that a member ceases to hold office as a member, if he incurs any of the disqualifications referred to in that section. S.30 of the Act confers jurisdiction on the State Election Commission to determine whether a subsequent disqualification has been incurred by a member under S.35 of the Act or he had become disqualified under S.30 of the Act. S.37 of the Act deals with restoration of membership. It is sub-s.2 of S.37 of the Act that deals with the Act that deals with the specific contingency of a member acqxiiring disqualification by virtue of S.35(k)of the Act S.37(2) provides that where a person ceases to be a member under Cl. (k) of S.35 of the Act, the Secretary of the Panchayat shall at once intimate that fact in writing to that member and report that fact at the next meeting of the Panchayat. S.37(2) gives the member a right to apply to the Panchayat for restoration of his membership on or before the date of the next meeting of the Panchayat or with in 15 days of receipt of intimation by him from the Secretary intimating him of the fact that he has ceased to be a member in view of S.35(k) of the Act. It is clear on the scheme of the Act that a notice is issued by a Secretary to the Panchayat under S.37(2) of the Act only in discharge of his administrative function on finding that the member had absented himself without permission for the meetings stipulated in S.35(k) of the Act. The Act does not contemplate any adjudication by the Secretary either before issuance of the notice under S.37(2) of the Act, or subsequent to the issuance of the notice under S.37(2) of the Act. A member who receives a notice under S.37(2) of the Act, is given the right to dispute the alleged disqualification by seeking a determination of that question from the State Election Commission by approaching that Commission under S.36 of the Act. A member who receives a notice under S.37(2) of the Act, is given the right to dispute the alleged disqualification by seeking a determination of that question from the State Election Commission by approaching that Commission under S.36 of the Act. In fact, the right to approach the ElectionCommission questioning the intimation informing a member that he has incurred the disqualification under S.35(k) of the Act, is conferred not only on the member disqualified, but also on any other member of the Panchayat and even on a voter in the Panchayat. Sub-s.2 of S.36 contemplates an enquiry by the State Election Commission, if a motion is made before it for determination of the question of disqualification. Sub-s.3 of S.36 provides that the procedure for trying a suit in terms of the Code of Civil Procedure, will apply to such an enquiry. It is therefore, clear that the Act does not contemplate issuance of any show cause notice by the Secretary of the Panchayat to the member to who intimation is given under S.37(2) of the Act about his having incurred the disqualification under S.35(k) of the Act. The only adjudication that is contemplated is when that member or any other member of the Panchayat or a voter in the Panchayat, raises a dispute regarding that question before the State Election Commission by invoking S.36 of the Act. We are therefore, not able to accept the contention of learned counsel for the petitioner that the Secretary of the Panchayat could not have issued a notice to him straightaway under S.37(2) of the Act and before giving him an opportunity to show cause or to show that he could not be disqualified by virtue of the proviso to S.35(k) of the Act. The member has to seek such an adjudication before the State Election Commission after the receipt of the notice under S.37(2) of the Act. It (emphasis supplied) Therefore, after the introduction of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, once a member is given an intimation under S.37(2), he shall not continue as member unless permitted by appropriate interim or final orders of the State Election Commission. It (emphasis supplied) Therefore, after the introduction of the Kerala Panchayat Raj Act, 1994, as amended by Act 13 of 1999, once a member is given an intimation under S.37(2), he shall not continue as member unless permitted by appropriate interim or final orders of the State Election Commission. However, prior to that stage it was certainly open to the Secretary or the authorised officer to refer the question as to whether it is a fact that a person has become disqualified under S.30 or 35 before the State Election Commission or for any member or voter to file a petition before the State Election Commission and unless interdicted by the Commission the member concerned in whose case the question has arisen could have continued, in the absence of the intimation under S.37(2). 8. Coming to the facts of the case it is seen from Annexure A that the Secretary had already referred the matter under proviso to S.36(1) before the State Election Commission. The State Election Commission erred in refusing to entertain the reference on the ground that the Secretary had no complied with S.37(2) procedure for intimation. As already held above, even before such a stage of intimation, reference before the State Election Commission is maintainable. Therefore, I set aside Annexure B and Annexure D decisions of the State Election Commission and direct the State Election Commission to take up for consideration Annexure A and Annexure C references made by the Secretary of the Grama Panchayat as well as by the District Collector and pass orders on the reference with notice to the Panchayat as well as the affected member. In view of Ext. P2 communication under S.37(2) of the Act, the petitioner is not entitled to continue as a member unless permitted by appropriate orders by the State Election Commission. Since Annexure A contains request for interim orders also, there will be a direction to the State Election Commission to pass appropriate interim orders with notice to the petitioner and the Panchayat under S.36(2). This shall be done within a period of one month from the date of receipt of a copy of this judgment. Ext. P5 is a communication in the matter issued by the Director of Panchayats who has no authority under law to issue such a clarification and it shall be ignored for all purposes. This shall be done within a period of one month from the date of receipt of a copy of this judgment. Ext. P5 is a communication in the matter issued by the Director of Panchayats who has no authority under law to issue such a clarification and it shall be ignored for all purposes. If the petitioner is so advised it is open to him to move the Government under S.191 of the Act against Ext. P3 resolution. The Original Petition is disposed of as above.