Research › Search › Judgment

Kerala High Court · body

2003 DIGILAW 518 (KER)

O. K. Gopalan v. The Chief Secretary

2003-08-14

A.K.BASHEER, JAWAHAR LAL GUPTA

body2003
Judgment :- Jawahar Lal Gupta, C.J. (Oral) On February 4, 2003, a Bench of this Court heard and decided O.P.No. 29473/2000. It was inter alia held that the Municipal Councillors were not qualified to hold their respective offices, as they had not subscribed to the oath as prescribed in the statute at the time of filing the nomination papers. Resultantly, they were directed to "vacate their respective offices." The validity of this order was challenged in a petition for Special Leave to Appeal (Civil) No. 6261-6262 of 2003. On April 21, 2003, the petition was dismissed. Even a legislative measure was adopted. On March 29, 2003, Ordinance No. 2 of 2003 was promulgated. Ultimately, the Legislature passed the Kerala Municipality (Amendment) Act, 2003 (Act 10 of 2003). The validity of this Act has been questioned. The short question is - Does the Act merely over-rule the judgment or does it obliterate the basis of the earlier decision? The relevant facts may be briefly noticed. 2. The elections to the Municipal Councils in the State of Kerala were held in September, 2000. Respondent Nos. 3 to 23 were elected as Municipal Councillors in Irinjalakuda Municipality. This election was challenged through a petition under Article 226 of the Consitution. It was inter alia alleged that while filing the nomination papers, the elected Councillors had subscribed to an oath, which did not conform to the Second Schedule of the Kerala Municipallities Act, 1994. The crucial words that "I will maintain sovereignty and integrity of India" were missing from the oath. On this basis, it was maintained that the said respondents were not qualified to contest the election. Their nomination papers had been wrongly accepted. The election could not be sustained. A prayer for the issue of a writ of quo warranto to oust them from the office of the Municipal Councillors was made. 3. The case was contested by the respondents. It was inter alia pleaded that there was a bona fide omission. While printing the forms, the amendment to the Second Schedule as made in the year 1999 had not been incorporated. As a result, the candidates had subscribed to the oath in the old form. In this form, the undertaking to uphold the sovereignty and integrity of India had not been printed. While printing the forms, the amendment to the Second Schedule as made in the year 1999 had not been incorporated. As a result, the candidates had subscribed to the oath in the old form. In this form, the undertaking to uphold the sovereignty and integrity of India had not been printed. It was further pointed out that by virtue of Article 51A(c) of the Constitution, the omission deserved to be overlooked. 4. The matter was considered by the Bench. It was inter alia held that Section 85 of the Act "lays down the basic minimum conditions of eligibility. A person who does not fulfil any of the requirements cannot contest the election. The candidate who does not subscribe to the oath in the prescribed form is not qualified to contest." The Bench had taken the view that the provision permitted no exception. It allowed for no relaxation. It recognized no departure. Thus, the violation was fatal to the election. Still further, the Bench held that "a person who occupies the office of a Councillor without being qualified is a usurper. He can be ousted by the issue of a writ of quo warranto." On these premises, the writ petition was allowed. The elected Councillors were directed to vacate their respective offices. 5. On March 29, 2003, the Governer promulgated an Ordinance "to amend the Kerala Panchayat Raj Act 1994 and the Kerala Municipalities Act, 1994." In section 2 of the Ordinance, it was inter alia provided that during the period of the operation of the Ordinance, the provisions of the Municipalities Act "shall have effect subject to the amendments specified in Sections 3 and 4 respectively." The matter was placed was placed before the Legislature. Ultimately, the Legislature passed Act 10 of 2003. Sections 2, 3 and 4 are relevant. These read as under: "2. Amendment of Section 85:- In Section 85 of the Kerala Municipality Act, 1994 (20 of 1994), (hereinafter referred to as the principal Act), after clause (f) the following proviso shall be added, namely:- "Provided that even if a candidate has omitted any word or words inadvertently when he makes and subscribes signature in such oath or affirmation and he has subsequently been elected as Councillor and assumed office on oath or affirmation made in the Third Schedule, he shall not be considered as disqualified for the mistake happened earlier." 3. Validation: - Notwithstanding anything contained in the Kerala Municipality act, 1994 (20 of 1994) or in any other law, or in any judgment or order of any court, where a person has been elected as a Councillor of a Municipality and has assumed office after making and subscribing oath or affirmation as per the Third Schedule of the principal act, 1994, he shall not deemed to be disqualified for being a Councillor or his election shall not be considered as invalid for the only reason that while presenting nomination paper he has omitted any word or words in the oath or affirmation made or subscribed before the returning officer or any other authority and shall continue to be the Councillor. 4. Repeal and saving: - (1) The Local Self Government institution Laws (Amendment) Ordinance, 2003 (2 of 2003), except Section 3 thereof is hereby repealed. (2) Notwithstanding such repeal, anything done or deemed to have done or any action taken or deemed to have been taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the principal Act as amended by this Act." 6. On June 30, 2003, the petitioners filed this petition under Article 226 of the Constitution. It was inter alia alleged that the Ordinance was void. It was an attempt to over-rule the judgment. Thus, it was prayed that the reinstatement of respondent Nos. 3 to 23 be annulled. 7. On July 5, 2003 Act 10 of 2003 was passed. A petition for the amendment of the petition was filed. The provisions of the Act were challenged as being illegal and unconstitutional. It was prayed that the provisions of the Act be declared void and that respondent Nos. 3 to 23 be ousted from the office of Councillors of the Municipality. 8. Separate counter affidavits have been filed. In the counter affidavit filed by the first respondent it has been inter alia pointed out that the impugned Act has been passed to remove the basis of the judgment of this Court in O.P.No. 29473/2000. The Act is within the legislative competence of the State Legislature. Since the infirmity had been obliterated by the impugned legislation, the action of the authority in permitting the Councillors to function was legal and valid. 9. Learned counsel for the parties have been heard. 10. Mr. The Act is within the legislative competence of the State Legislature. Since the infirmity had been obliterated by the impugned legislation, the action of the authority in permitting the Councillors to function was legal and valid. 9. Learned counsel for the parties have been heard. 10. Mr. Ranjit Thampan, learned counsel for the petitioners, has contended that the impugned provisions merely over-rule the judgment. The basis of the decision has not been altered. Thus, the respondents have no right to resume their offices as Municipal Councillors. Secondly, the counsel has contended that the provisions of the impugned Act are unconstitutional, as these do not conform to the requirements of Articles 173, 243V and 243ZA of the Constitution. Still further, he submits that the cases of respondent Nos. 3 to 23 are not covered by the impugned provision. On these premises, the counsel contends that the Act deserves to be annulled and the respondents ousted from the office. 11. Learned counsel for the respondents have controverted the claim as made on behalf of the petitioners. Mr. Retna Singh, learned Advocate General, has contended that a bona-fide mistake had been committed by the State Election Commission. As a result, the elections of all the Municipal Councillors and the Members of the Panchayats in the entire State were put in jeopardy. The State Legislature has taken corrective steps by removing the infirmity. Thus, the impugned Act and the election are legal and valid. Mr. Ajay, supplemented the submission made by the learned Advocate General. He contended that the Court has to see if it would have given the earlier decision in case the amending Act had been in force on the date of the previous hearing of the case. 12. Mr. V. Giri appearing for some of the private respondents has submitted that by the impugned Act, the Legislature has removed the infirmity identified by the Court. Consequently, the basis on which the election had been annulled has ceased to exist. This being the factual position, the respondents are entitled to continue as Councillors. He further submitted that the impugned legislation is within the legislative competence of the State Legislature. It does not violate the provisions of Articles 173, 243V and 243ZA. Consequently, the basis on which the election had been annulled has ceased to exist. This being the factual position, the respondents are entitled to continue as Councillors. He further submitted that the impugned legislation is within the legislative competence of the State Legislature. It does not violate the provisions of Articles 173, 243V and 243ZA. If the impugned legislation had been in force on February 4, 2003 when the Court had considered the matter initially, it could not have been said that the elected Councillors were not qualified to hold their offices or that they were usurpers of public office. Thus, it is contended that the impugned Act deserves to be sustained and the election of the respondents be upheld. 13. The primary question that arises for consideration is - Does Act 10 of 2003 remove the basis of the decision in O.P.No. 29473/2000? Inevitably, a brief reference to the provisions of the Act is essential. These may be noticed. 14. Section 85 inter alia provides that no person shall be qualified for election as a Councilor of a Municipality unless he "makes and subscribes before the Returning Officer or any other persons authorized by the State Election Commission an oath or affirmation in the form set out in the Second Schedule." Section 91 provides for the disqualification of Councillors. Section 111 deals with the scrunity of nominations. It was on a consideration of these provisions that the Court had come to the conclusion that the respondents having failed to subscribe to the oath in the prescribed form as given in the Second Schedule, they were not qualified to contest the election. Consequently, it was concluded that whatever followed the filing of the nomination papers was illegal. The decision was apparently based on the finding that the respondents had filed to subscribe to the oath in the prescribed form at the time of the filing of the nomination papers. Thus, it was concluded that they were usurpers of the office. 15. Mr. Thampan contends that the impugned provision does not take away the basis on which the decision had rested. Learned counsel for the respondents contest this. What does the new provision provide? 16. Thus, it was concluded that they were usurpers of the office. 15. Mr. Thampan contends that the impugned provision does not take away the basis on which the decision had rested. Learned counsel for the respondents contest this. What does the new provision provide? 16. By Section 2 of the Act, a perusal of this proviso, as quoted above, shows that even in a case where "a candidate has omitted any word or words” in the oath, but he has been subsequently elected has a Counsillar and has subscribed to the prescribed oath as given in the Third Schedule, he shall not be “considered as disqualified." In other words, the provision has removed the defect in the oath as initially taken by the candidate. 17. Mr. Thampan contends that even according to this provision, the mistake has to be inadvertent. Unless, it is found that the candidate had omitted the words inadvertently, he would not be entitled to claim the benefit of the provision. There is no proof that the omission was inadvertent. 18. Factually, a perusal of the judgment delivered by the Bench in O.P.No. 29473/2000 shows that the nomination forms with the oath had been issued by the State Election Commission. The candidates had been given the old forms. Therein, the undertaking to uphold the sovereignty had integrity of India had not being printed. The candidates had subscribed to the oath as contained in the form. This factual position had not been disputed. The court had considered the matter on this basis. It is true that while examining the matter, the Bench had observed that the "lapse on the part of the Election Commission is serious, yet, under the statute, the candidate has the responsibility. No one can take umbrage behind the fault of the authority and plead that the mistake should be condoned or overlooked." However, on a perusal of the judgment, it is clear that the State Election Commission had committed the lapse. This position was clearly established on the record. But the burnt of the default had to be borne by the elected candidates. The factual position as borne out from the record clearly shows that the mistake on the part of the candidates was inadvertent. We can imagine no reason, which would impel a candidate to intentionally subscribe to a wrong oath. But the burnt of the default had to be borne by the elected candidates. The factual position as borne out from the record clearly shows that the mistake on the part of the candidates was inadvertent. We can imagine no reason, which would impel a candidate to intentionally subscribe to a wrong oath. In the background of the facts as borne out from the record, it cannot be said that the mistake was deliberate or that it was not inadvertent. 19. The position that emerges from the above is that the proviso takes away the rigor of the basic provision, which rendered a qualified candidate as disqualified. It removes the foundation of the order on which the election was held to be illegal. Thus, it does not merely over-rule the judgment. In fact, it obliterates the very basis of the decision. 20. Mr. Thampan contends that the provision is unconstitutional. It does not conform to the requirements of Articles 173, 243V and 243ZA. Is it so? 21. Article 173 of the Constitution lays down the qualifications for membership of the State Legislature. Article 243V prescribes the disqualifications for memberships of a Municipality. It provides as under: "243V. Disqualifications for membership:- (1) person shall be disqualified for being chosen as, and for being a member of a Municipality- (a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned: Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age, of twenty-one years; (b) If he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of Municipality has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide." Article 243ZA deals with elections to the Municipalities. It inter alia provides that the election shall be conducted by the State Election Commission and that the State Legislature shall be competent to make law "with respect to all matters relating to or in connection with elections to the Municipalities." 22. It inter alia provides that the election shall be conducted by the State Election Commission and that the State Legislature shall be competent to make law "with respect to all matters relating to or in connection with elections to the Municipalities." 22. A perusal of the above provision shows that it debars a person from contesting election to the Municipality in two eventualities. Firstly, a person is disqualified from being elected as a member of a Municipality, if 'he is so disqualified" under a law made by the State Legislature. Secondly, he would be disqualified if he were not eligible to contest election "to Legislature of the State concerned." 23. Mr. Thampan contends that the proviso to clause(a) is symbolic of the constitutional mandate. According to learned counsel, the provision of Article 173 has to be read into Article 243V. A person who is not qualified to contest election to the State Legislature is also debarred from contesting election to the Municipality. In other words, the contention of the counsel is that under Article 173(a), it is incumbent on a candidate to make and subscribe to an oath or affirmation according to the form set out in the Third Schedule. The form as given in the Second Schedule to the Act is in pari materia with the form as given in the Third Schedule of the Constitution. Thus, a person who does not subscribe to the oath in the prescribed form is disqualified from contesting election to the Municipality. 24. The Constitution does not say that a person seeking election to a Municipality has to subscribe to the oath as prescribed in the Third Schedule to the Constitution at the time of filing the nomination form. The proviso to sub-clause (a) of Article 243V(1) only implies that the rigour of age as prescribed in the Article 173 shall not be applicable in the case of election to a Municipal Committee. We cannot read the other qualifications as laid down for election for membership of the State Legislature into Article 243V so as to read it to mean that it not only prescribes the disqualifications but also lays down the qualifications. In fact, if it were so, then it would not have been necessary for the State Legislature to prescribe any oath for election to the local bodies or for the members who are elected. In fact, if it were so, then it would not have been necessary for the State Legislature to prescribe any oath for election to the local bodies or for the members who are elected. It is absolutely clear that so far as the members of State Legislature are concerned, the oath has been prescribed in the Constitution. In the case of members of local bodies like Municipalities or Panchayats, the prescription, as pointed out by the Mr. Giri, is only statutory. It is not constitutional. Such being the position, it cannot be said that the provision of Section 2 of Act 10 of 2003 violates Articles 173, 243V and 243ZA of the Constitution. 25. Mr. Thampan then contended that Section 85 only lays down the qualifications. Section 86 to 90 prescribe the disqualifications of the candidates. The provisio merely provides that even if there has been any inadvertent omission of certain words in the oath, the candidate shall not be considered as disqualified. This declaration will not remove the qualification as prescribed in Section 85(f). 26. The sequence of events has been noticed. It is apparent that the Legislature, while enacting the provision, was confronted with the situation wherein the elections had not only been completed but the elected persons had assumed their respective offices. They were functioning as Councillors. They had already subscribed to the oath as prescribed in the Third Schedule to the Act. They were rendered as disqualified by the decision. The Court had held them to be usurpers. Still further, the Bench had also held that the provisions of Sections 85 and 86 to 90 were mutually supplemental. These were complementary. One could not be read by ignoring the other. In this background, the removal of disqualification is actually calculated to take away the rigour of the prescribed qualification. Thus, it cannot be said that the basis of the decision has not been taken away by the impugned provision. 27. Mr.Thampan has further contended that in the proviso to Section 2, the omission is condoned only when it is found to be inadvertent. However, in Section 3, the provision validates the election despite the fact that the omission is not inadvertent. 28. Firstly, the two provisions as contained in Sections 2 and 3 of the impugned Act have to be harmoniously construed. However, in Section 3, the provision validates the election despite the fact that the omission is not inadvertent. 28. Firstly, the two provisions as contained in Sections 2 and 3 of the impugned Act have to be harmoniously construed. Secondly it deserves notice that in Section 3, the Legislature is validating the election of a person who had been elected as a Councillor despite the fact that he had omitted a word or words in the oath. The obvious intention was to validate the election of persons who had inadvertently omitted certain words in the oath. The background in which this legislation has been promulgated being clear, the omission of the word 'inadvertent' from Section 3 cannot be said to be fatal to the Act. 29. Lastly, the counsel has contended that the provision does not save respondent Nos. 3 to 23 as it only validates the election of those persons who were continuing in offices on March 29, 2003 when the ordinance had been issued. 30. Admittedly, Section 2 has been amended with effect from March 24, 1999. Thus, the disqualification has been obliterated from a date even prior to the election. Resultantly, it has to be assumed that even on the date of filing of the nomination papers, respondents 3 to 23 fulfilled the qualification. Once the disqualification has been removed, the validating provision entitles them to continue as Councillors. It does not say that only such persons as are actually in office will continue. On the contrary, it categorically provides that even those persons who had omitted certain words from the oath "shall not be deemed to be disqualified for being" Councillors and that they "shall continue" to be the Councillors. 31. Mr.Thampan has referred to the decision of their Lordships of the Supreme Court in People's Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 to contend that a dead order cannot be resurrected. 32. There is no quarrel with the proposition. In fact, in the latest decision as reported in (2003) 5 SCC 298 (Bakhtawar Trust and others v. M.D. Narayan and others), the test for judging the amending and validating Act has been clearly laid down. 32. There is no quarrel with the proposition. In fact, in the latest decision as reported in (2003) 5 SCC 298 (Bakhtawar Trust and others v. M.D. Narayan and others), the test for judging the amending and validating Act has been clearly laid down. On a consideration of the earlier decisions, the position was summarized in paragraph 25 in the following words: "The decisions referred to above, manifestly show that it is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would no more be possible for the court to arrive at the same verdict. In other words, the very premise of the earlier judgment should be uprooted, thereby resulting in a fundamental change of the circumstances upon which it was founded." Thus, a validating statute is valid if it is within the legislative competence; it conforms to the provisions of the Constitution and it takes away the basis of the decision. In the present case, it has not even been suggested that the impugned legislation was not within the legislative competence of the State Legislature. In fact, it is the admitted position that the State Legislature was competent to legislate with regard to the elections to the Municipality. We have also found that it conforms to the Constitutional requirements. It does not violate any of the provisions of the Constitution. Still further, it also takes away the basis of the earlier judgment. Thus, it meets the tests as laid down by the Supreme Court. 32. No other point has been raised. In view of the above, we find no merit in this petition. It is consequently dismissed. However, the parties are left to bear their own costs.