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2003 DIGILAW 760 (KER)

Madhu v. State Election Commission

2003-12-11

K.BALAKRISHNAN NAIR

body2003
Judgment :- 1. W.P.(C) No.35632/03 The petitioners in this Writ Petition are the Councillors of the 3rd respondent Municipality. Feeling aggrieved by the steps taken by the 1st respondent State Election Commission to disqualify them, this Writ Petition is filed. The brief facts of the case are the following:- 2. The 1st respondent issued Ext.P1 circular to all the Muncipalities calling for the following details:- (1) Whether the Ward Committees/Ward Sabhas have been formed as provided under S.42/42A of the Kerala Municipality Act, 1994. (2) The details of the meetings of the Ward Committees/ Ward Sabhas, including the date of the last meeting. (3) Was there any default in convening the Ward Committees/ Ward Sabhas consecutively for a period of six months. (4) Was any Councillor disqualified under S.92(o). The said circular was followed by Ext.P1 (a) communication, in which the 4th direction in Ext.P1 was modified as referring to the disqualification under S.91(o) instead of S.92(o). It was also requested in Ext.P1 (a) to forward the details called for, without delay. By Ext.P2, the Secretary of the 3rd respondent Municipality gave the reply, in which it was stated, inter alia, that no Councillor has been disqualified under the provisions of the Act. The particulars of the meetings of the Ward Sabha were also annexed to Ext.P2. That was followed by Ext.P2(a) letter from the Secretary of the Municipality to the 1st respondent stating, inter alia, that no Councillor has so far been disqualified under S.91(o) of the Act. Upon receipt of those materials and upon perusal of them, the 1st respondent prima facie found that the Councillors have failed to convene the meetings of the Ward Sabhas consecutively for more than six months and therefore issued Exts.P3 to P33 notices calling upon them to appear and show cause why a declaration should not be made to the effect that they are disqualified under S.91(o) of the Kerala Municipality Act. The petitioners challenge Exts.P3 to P33 notices in this Writ Petition. They also seek a direction to the 1st respondent not to proceed with the disqualification proceedings. According to them, the Election Commission has got no suo mote power to enter upon an enquiry regarding the disqualification of a Councillor. The petitioners challenge Exts.P3 to P33 notices in this Writ Petition. They also seek a direction to the 1st respondent not to proceed with the disqualification proceedings. According to them, the Election Commission has got no suo mote power to enter upon an enquiry regarding the disqualification of a Councillor. It can do so, if any petition is filed by any of the Councillors or any of the Electors in the election in which the concerned allegedly disqualified Councillor was elected or on a reference made by the Secretary of the Municipality that there is a dispute regarding the disqualification of a Councillor. Here, the petitioners point out that the 1st respondent called for the details regarding the meetings, perused them and prima facie found that the Councillors are disqualified and thereafter, initiated the disqualification proceedings. This, according to the petitioners, is without jurisdiction. 3. I heard the learned Counsel Shri. K. Ramakumar appearing for the petitioners, the learned Standing Counsel Shri. Murali Purushothaman for the State Election Commission, the learned Government Pleader Shri. M.A. Thomaskutty appearing for the 2nd respondent and also the learned Standing Counsel for the 3rd respondent. Before deciding the point raised in this Writ Petition, it will be fruitful to refer to the relevant statutory provisions. S.91(o) reads as follows:? "91. Disqualification of Councillors.- Subject to the provisions of S.92 or S.172, a Councillor shall cease to hold office as such if he, (a)...................................................................................................................................... (o) has failed, twice consecutively, to convene once in three months the meeting of the Ward Committee or the Ward Sabha of which he is the Convenor; ' ..................................................................................................................................... S.92 empowers the Election Commission to decide on the dispute regarding disqualification. S.92 reads as follows:? "92. Determination of subsequent disqualification of a Councillor.- (1) Whenever a question arises as to whether a Councillor has become disqualified under S.86 or S.91, except Cl.(11) after having been elected as such Councillor, any Councillor of a Municipality concerned or any other person entitled to vote at the election in which the Councillor was elected, may file a petition before the State Election Commission, for decision. Provided that the Secretary or any Officer authorised by the Government in this behalf may refer such a dispute to the State Election Commission for decision. Provided that the Secretary or any Officer authorised by the Government in this behalf may refer such a dispute to the State Election Commission for decision. (2) The State Election Commission shall, after making such enquiry, as it considers necessary, decide whether such Councillor has become disqualified or not and the decision shall be final, so, however, that the State Election Commission may pass an interim order as to whether the Councillor shall continue to hold his office or not, till a decision is taken on the petition or reference referred to in sub-s.(1). (3) The petition or reference under 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." S.92(1) expressly provides that only a Councillor of the Municipality or an elector in the election in which the allegedly disqualified Councillor was elected, can file a petition before the State Election Commission to decide whether the Councillor has been disqualified or not. The proviso to the sub-section says, the Secretary of the Municipality or any Officer authorised by the Government in that behalf may also refer the said dispute to the State Election Commission. In the case on hand, admittedly, there is no petition by a Councillor or by the elector. In this case, the Commission has acted on Exts.P2 and P2(a) letters. Whether they can be treated as references made by the Secretary of the Municipality in a dispute regarding disqualification of a Councillor is the point to be decided in this case. 4. The learned Standing Counsel for the Election Commission referred to the powers of the Election Commission under Art.243K which deals with the powers of Superintendence of the Election Commission in relation to elections to Panchayats and also Art.243V dealing with the disqualifications for being a member of the Municipal Council. Relying on S.196(2) of the Kerala Municipality Act, it is submitted, the Election Commission is competent to call for information from any person during the course of an enquiry. According to the learned Standing Counsel for the Election Commission, the letters furnished by the Secretary of the Municipality should be treated as the reference of a dispute regarding disqualification. It is also submitted that the Election Commission is competent to call for necessary reports and to act upon them. According to the learned Standing Counsel for the Election Commission, the letters furnished by the Secretary of the Municipality should be treated as the reference of a dispute regarding disqualification. It is also submitted that the Election Commission is competent to call for necessary reports and to act upon them. Therefore, it is contended that the action of the Election Commission is within its jurisdiction. 5. The State Election Commission for local bodies is a statutory authority. The power of the Superintendence in the matter of holding election to local bodies is vested with it. Apart from that, certain other powers are also conferred on it. One of them is the power under S.92 to decide a dispute regarding the disqualification of a Municipal Councillor incurred under S.91(o), on his failure to convene the meetings of the Ward Sabhas consecutively for a period of six months. The Legislature has not conferred any suo mote power on the Election Commission. If it was the intention of the Legislature to do that, the Legislature would have said, the Election Commission, either suo mote or on any motion made by a person interested, can look into the dispute regarding disqualification. But, the policy of law in all legislations covering the field of election is that the elected member should be left to discharge his duties to the constituency and he should not be disturbed unnecessarily. The validity of the election can be gone into by the competent court if the conditions for challenging the election are strictly complied with. The same principle will apply to disqualification also. For example, a Councillor may be disqualified by reason of defection, but the said disqualification can be decided by the Election Commission if only a motion is made by an authorised person within the prescribed time limit. The policy of the Legislature in that case is that if the concerned person does not move within the prescribed time limit, the Councillor who suffered disqualification due to defection should be left free. I think the policy of the Law is the same in the matter of disqualification under S.91 read with S.92. The Election Commission can entertain a dispute regarding disqualification, if only the motion for the same reaches him from three sources. The omission to convene Ward Sabha is something which affects the electors of that ward. I think the policy of the Law is the same in the matter of disqualification under S.91 read with S.92. The Election Commission can entertain a dispute regarding disqualification, if only the motion for the same reaches him from three sources. The omission to convene Ward Sabha is something which affects the electors of that ward. They must be the persons who are most concerned with the inefficiency of their Councillor. Another Municipal Councillor can also feel aggrieved by the inaction from the part of his colleague in the matter of discharging his functions. 6. If these aggrieved persons are unconcerned, the Councillor should be left free. If somebody raises a dispute before the Secretary regarding the disqualification incurred by a Councillor and the Secretary feels that the dispute is genuine, then he can also refer the matter to the Election Commission. So, the policy of the Legislature is that only specified categories of persons can be said to be aggrieved. So, they alone are authorised to bring the matter before the Election Commission for decision. If such a valid motion is not before the Commission, it cannot enter upon an enquiry. If a person who is not a voter, but only a resident of the Municipality files a petition against a Councillor before the Election Commission, the said petition will be rejected at the threshold. If the Commission is endowed with suo mote power, then it can act on the information received from any source. But the Legislature has deliberately omitted to confer any such power on the Election Commission. So, the action taken by the Election Commission in this case is without jurisdiction. If Exts.P2 and P2(a) can be treated as references made by the Secretary in a dispute regarding disqualification, then the impugned notices could be sustained. Exts.P2(a) is practically a copy of Ext.P2 with minor corrections. So, the examination of Ext.P2(a) will be sufficient to decide this point. The translation of Ext.P2(a) reads as follows:? "The reply dated 1.10.2003 has already been sent to the Election Commission for its consideration as per letter No.G5/9208/03 dated 1.10.2003. The reply on the basis of the correction as per second paper read above is given under. 1(a) The Ward Sabha has been formed in this Municipality as per decision No.2 of the Council dated 13.9.1996. (b) The Ward Sabha has been formed in all the Wards. 2. The reply on the basis of the correction as per second paper read above is given under. 1(a) The Ward Sabha has been formed in this Municipality as per decision No.2 of the Council dated 13.9.1996. (b) The Ward Sabha has been formed in all the Wards. 2. The details of the meetings of the Ward Sabhas including that of the last meeting are annexed as schedule to this letter. 3. During the relevant period, all the Ward Sabhas after the meeting in 11/01 have met in 09/2002. 4. No Councillor of this Municipality has been disqualified under S.91(o) of the Kerala Municipality Act, 1994." This answer is given to the questionnaire contained in Ext.P1 as modified in Ext.P1(a). It does not show that somebody has raised any dispute regarding disqualification of the Councillors and therefore, he is referring it to the Election Commission for its decision. So, going by Ext.P2(a), it can, in no way, be said to be a reference made under the proviso to S.92(1). Therefore, there is no valid petition or reference before the Election Commission. So the impugned notices are issued without jurisdiction. Further, the Election Commission is functioning as a statutory tribunal, while deciding on the disqualification of a Councillor. So, it should follow the adversary procedure and not the inquisitory procedure. The learned Authors H.W.R. Wade and C.F. Forsyth in their Administrative Law 8th edition have described 'adversary procedure' as follows:? "It is fundamental that the procedure before a tribunal, like that in a court of law, should be adversary and not inquisitorial. The tribunal should have both sides of the case presented to it and should judge between them, without itself having to conduct an inquiry of its own motion, enter into the controversy and call evidence for or against either party. It if allows itself to become involved in the investigation and argument, parties will quickly lose confidence in its impartiality, however fair-minded it may be. This principle is observed throughout the tribunal system, even in the adjudging of small claims before social security local tribunals and supplementary benefit appeal tribunals by a departmental officer." The above statement of law will apply to the 1st respondent also, while it is deciding a petition regarding disqualification under S.92 of the Act. In the result, the Writ Petition is allowed and Exts.P3 to P33 are quashed. W.P.(C) No.36288/03 7. In the result, the Writ Petition is allowed and Exts.P3 to P33 are quashed. W.P.(C) No.36288/03 7. The facts of this case are identical to that of those in W.P.(C) No.35632. But in this case, there is a slight difference in Ext.P2 reply submitted by the Secretary of the Municipality. After giving the details called for, the Secretary has informed that after the formation of the Ward Sabhas, there was failure to convene them consecutively for six months. He has also stated that there was possibility of the Councillors being disqualified under S.91(o). The above views expressed by the Municipal Secretary nonetheless will not make it a reference under S.92(1). It can only be treated as his views, expressed in his reply to the details called for by the Election Commission. The dispute contemplated under S.92(1) must be one that has been raised in the Council or before the Secretary by some one interested. If he then refers that dispute to the Election Commission praying to take a decision on it, it can be treated as a reference in terms of the above said proviso. 8. Therefore, I am of the view that the decision in W.P.(C) No.35632/03 will squarely apply to this case also. So, the impugned notices Exts.P3 to P35 are quashed. Since the petitioners have submitted that they are not pressing the challenge against Ext.P1, I am not pronouncing on its validity. The contentions of the petitioners on this point are kept open. 9. It is clarified that the above judgments will not stand in the way of the Election Commission entertaining any petition or reference under S.92(1), if the same is validly made by a competent person. The Writ Petitions are disposed of as above.