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2004 DIGILAW 137 (KER)

Peter v. State of Kerala

2004-03-28

K.BALAKRISHNAN NAIR

body2004
Judgment :- K.Balakrishnan Nair, J. The petitioner is a Councillor of Kollam Municipal Corporation. He has been elected from Ward No.47. The 3rd respondent, who is an elector from Ward No.47, has filed Ext.P1 petition dated 10.12.2003 before the 2nd respondent Kerala State Election Commission under S.92(1) of the Kerala Municipality Act, alleging that the petitioner has incurred disqualification under S.91 (o) of the Kerala Municipality Act. The petitioner has filed this Writ Petition challenging the constitutional validity of S.91(o) of the Act. According to him, S.91(o) of the Act is unreasonable for the absence of inbuilt safeguards. The provision operates even in the absence of a culpable state of mind and therefore, it is arbitrary. According to the petitioner, though the convening of the Ward Committee is not mandatory, still, the non-convening of it atleasl once in six months, acts as a disqualification. It is submitted that in identical situations, no disqualification is incurred by members of Parliament and State Legislatures. It is also submitted, the Rule governing the procedure for Constitution of the Ward Committee is ultra vires of S.44(2) of the Kerala Municipality Act. It is also contended that S.91 (o) is vague and therefore, it is void. It is further contended that the provision is suffering from the vice of excessive delegation. Other contentions are also raised. On the above grounds, the petitioner seeks a declaration that S.91(o) of the Kerala Municipality Act is unconstitutional. C2. S.91(o) of the Kerala Municipality Act reads as follows:-"91. Disqualification of Councillors:-- Subject to the provisions of S.92 or S.178, a Councillor shall cease to hold office as such, if he- (a) ........ (b) 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." The Ward Committee has been defined under S.2(49A) as the Ward Committee constituted under S.42. S.42 says that in every Municipality, where the population exceeds one lakh, there shall be constituted a Ward Committee for each ward of that Municipality as provided in S.43, within three months from the date of its Constitution. S.43 says that the Councillor of the Ward Sabha shall be its Chairman. S.42 says that in every Municipality, where the population exceeds one lakh, there shall be constituted a Ward Committee for each ward of that Municipality as provided in S.43, within three months from the date of its Constitution. S.43 says that the Councillor of the Ward Sabha shall be its Chairman. The Ward Committee shall consist of 15 persons elected from among the members of the residents' association of that ward registered with the Municipality, 20 members to be elected from the members of the neighbourhood groups of that ward registered with the Municipality, one person each nominated by every political party having representation in the Municipality, the heads of all recognised educational institutions functioning in that Ward, 20 persons nominated jointly by the Chairperson and the Councillor of the Ward. S.44 says that the Ward Committee shall meet atleast once in three months and the meeting shall be convened by its Chairman, who is the Councillor of the Ward, by virtue of S.43(a). S.45 deals with the functions and S.46 with duties and rights of Ward Committees. 3. As per S.91(o) of the Act, the failure to convene the Ward Committee once in 6 months will result in loss of membership of the Municipal Council. Any dispute regarding disqualification suffered by the member of a Municipality under S.91 (o) can be adjudicated by the Kerala State Election Commission under S.92. The petitioner has got a case that the petition to disqualify him has not been filed in accordance with law. It is also contended that on merits also, the petitioner is bound to succeed. I am not dealing with those contentions. The petitioner has to raise them before the State Election Commission. I am only dealing with the case of the petitioner that S.91 (o) of the Kerala Municipality Act is unconstitutional. In support of the said point, the following grounds were urged before me by the learned Counsel for the petitioner:? 4. According to the petitioner, S .91 (o) is arbitrary, unreasonable and perverse and therefore, violative of Art.14 of the Constitution of India. This is so, because, no opportunity is given to the concerned Councillor, as a safeguard, to cure the deficiency from his part before the matter is dragged to the Election Commission. This contention is untenable for the following reasons. The petitioner contested the election under the provisions of the Kerala Municipality Act. This is so, because, no opportunity is given to the concerned Councillor, as a safeguard, to cure the deficiency from his part before the matter is dragged to the Election Commission. This contention is untenable for the following reasons. The petitioner contested the election under the provisions of the Kerala Municipality Act. He must be presumed to know the provisions contained in S.91 including Cl.(o) thereof. By virtue of the operation of that law, the petitioner's omission to call the Ward Committee for six months, entails disqualification. He cannot, therefore, demur. S.91 (o) is a statutory provision, enacted under the plenary powers granted to the Legislature by the Constitution. This Court cannot sit in appeal over the wisdom of the Legislature in enacting this provision, meant to impose some functional discipline over the Councillors. 5. It is also submitted that without any culpable state of mind, a Councillor can be disqualified under S.91 (o). This will amount to violation of Art.21 of the Constitution of India, it is contended. But, there are several legislations in force, which create statutory offences, for the punishment of which, proof of mens rea is unnecessary. Therefore, this contention of the petitioner cannot be accepted. 6. The petitioner further submits, under S.91(k), the absence from the meetings of the Council for three consecutive months can be condoned by the Council. According to him, the omission to convene the Ward Committee is an offence of lesser magnitude. There is no provision for condoning the said lapse. Therefore, it is submitted that the provision contained in S.91 (o) is discriminatory. If the Legislature, in its wisdom, puts the offence of non-convening the Ward Committee, on a higher pedestal compared to lapse of failure to attend the Council meetings, the court cannot interfere with it, importing its own concept regarding gravity of the offence involved. The will of the people reflected in the legislation must prevail, as ours is a Government of the people and not of the courts. 7. It is also contended that the impugned provision is against the constitutional framework of democratic institutions and their functioning and therefore, liable to be struck down. The general allegation that the said provision is contrary to the constitutional framework is not a ground sufficient to interfere with it. It is submitted that the impugned provision is vague and therefore, it is void. The general allegation that the said provision is contrary to the constitutional framework is not a ground sufficient to interfere with it. It is submitted that the impugned provision is vague and therefore, it is void. The said contention of the petitioner is exfacie unsustainable. The provision is clear and specific. The Act provides that the Ward Committee should be convened once in three months. If he fails twice to convene the Committee, the Councillor will be disqualified. There is no vagueness in this statutory prescription. Though the petitioner has incidentally raised a contention that the relevant Rules dealing with the Constitution of the Ward Committee and the procedure governing its meetings are ultra vires of S.44, since there is no prayer to declare the Rules as ultra vires, I am not dealing with that contention. 8. It is a common allegation that the elected representatives seldom come to their electors once the election is over. They come back only on the eve of the "next election. In order to prevent this situation, the Councillor has been made the Chairman and Convenor of the Ward Committee. The duty to convene the Committee once in three months has been made a mandatory duty also. If he fails twice to convene the Committee, it is provided that he will cease to be a member of the Municipal Council. I am of the view that this is one of the finest provisions contained in the Kerala Municipality Act, making the Councillor responsible towards his electors. If he feels that the convening Of the Ward Committee is a burden for him, he should not have contested the election. After the election, if he realises that it is a burden, he should, in fairness, quit.the office. He cannot seek to continue as a Councillor, ignoring his mandatory duty to convene the Ward Committee. So, the provision designedly made for safeguarding democracy at the grass root level, cannot be struck down under Art.226 of the Constitution of India. A legislation can be struck down as unconstitutional, if its provisions violate any of the injunctions contained in Part III of the Constitution or crosses the limits set in various Articles in other parts of the Constitution. Except raising some vague and general allegations of inconvenience caused by the impugned provision, no substantial ground has been raised by the petitioner against the impugned provision. Except raising some vague and general allegations of inconvenience caused by the impugned provision, no substantial ground has been raised by the petitioner against the impugned provision. The learned Counsel for the petitioner tried to point out that there may be a case wherein the Councillor may be critically ill and may not be able to move out of bed for more than six months. In that event also, he will be disqualified. Therefore, the application of the impugned provision will be very harsh in such circumstances, it is contended. The petitioner does not have a case that he was disabled from convening the meeting by illness. What has been stated is only a hypothetical situation. Further, if a person is critically ill and he could not discharge any of the functions of the Councillor, including the convening of the Ward Committee, then, there is no point in his continuing as the Municipal Councillor. So, by operation of law, he will cease to be a member and in a by-election, somebody who is physically fit will be elected. Such a statutory provision designed to safeguard public interest, cannot be described as arbitrary, for the reason that it may affect the individual rights of the Councillor. 9. For all the above reasons the challenge made against the constitutionality of S.91(o) of the Kerala Municipality Act, is repelled and the Writ Petition is dismissed. It is made clear that all other contentions of the petitioner, including the one about the maintainability of Ext.P1 petition are kept open, which he may raise before the 2nd respondent State Election Commission.