Judgment :- “CR” 1. Kerala State Election Commission, in independent proceedings, declared two members of Koduvally Grama Panchayat as disqualified on ground that they had failed to file declaration of assets within the time limit prescribed in the Kerala Panchayat Raj Act, 1994, for short, the “Act”. These writ petitions are filed challenging those decisions. Common questions of law, on similar sets of facts, are raised. Hence, these matters are heard contemporaneously and are decided as per this common judgment. 2. The records of the Commission in relation to both the proceedings are placed before this Court. W.P.(C).13558 of 2008 3. The petitioner C.P. Faizel, who represented Ward No.14, challenges the decision of the Commission declaring him as disqualified. 4. The brief facts are as follows: (a) The second respondent, voter, filed the petition before the Commission alleging that the member did not file statement of assets and liabilities on or before 18.7.2007, in terms of Section 159(1) of the Act, but filed it only on 18.9.2007 and hence, he is disqualified and shall cease to hold office by the force of Section 35(1)(q) of the Act. (b) The member contended that he had submitted statement of assets and liabilities in the prescribed form to the Deputy Director of Panchayats, Kozhikode, the competent authority, on 12.10.2006 under certificate of posting from the Valiaparambu Post Office and that what he submitted on 18.9.2007 is only a subsequent statement in terms of Section 159(2) regarding later a acquisitions/disposal of assets/creation of liability. (c) Ext.P2 dated 27.7.2007 is information given to the voter under the Right to Information Act, 2005, from the Office of the Assistant Director of Panchayats, that the member had not filed any statement till the date of that letter. Ext.P3 is issued by the Deputy Director of Panchayats, for short, “DDP”, on 6.1.2007 to P.P. Moideenkutty, another member of the Panchayat, stating that the member had not filed the statement in terms of Section 159 of the Act. Ext.X1 proved through P.W.2, the DDP, is the statement of assets and liabilities filed by the member before him and it was shown as received in the office of the DDP on 18.9.2007. Ext.X3 is the letter addressed by the Information Officer to the voter on 29.10.2007 stating that the member had filed the statement of assets and liabilities on 18.9.2007 beyond the stipulated date. Ext.X3 is the letter addressed by the Information Officer to the voter on 29.10.2007 stating that the member had filed the statement of assets and liabilities on 18.9.2007 beyond the stipulated date. That document also shows that the member had sent a petition to the DDP on 13.8.2007 stating that he had already sent the statement through post on 12.10.2006. However, Ext.X3 is categoric that the statement claimed to have been sent by the member on 12.10.2006 was not received in the office of the DDP and that the said fact was intimated to the member on 18.8.2007, on receipt of the member’s letter dated 13.8.2007. Ext.X4 register kept in the office of the DDP showed that it is a register arranged panchayat-wise and showing the details of assets and liabilities filed by the members of the Grama Panchayats in Kozhikode District. The Commission has noticed that Ext.X4 records that a copy of a statement was received from the member along with his letter dated 13.8.2007 and another statement was received on 18.9.2007. (d) The voter gave evidence as P.W.1. (e) P.W.2, the DDP, refuted the suggestion in the cross examination that the statement of assets and liabilities sent by the member on 12.10.2006 under certificate of posting was not appropriately included in the register. (f) The member gave evidence as R.W.1, R.W.2, Post Master of Valiaparambu Post Office gave evidence stating that Ext.X7 is a certificate of posting issued by him on 12.10.2006. Though he mentioned that the addressee’s identity will be verified before such certification, he stated that he cannot remember as to who brought the postal article in relation to which Ext.X1 was issued on 12.10.2006. He also stated that he does not know whether it was brought by the member. 5. Though he mentioned that the addressee’s identity will be verified before such certification, he stated that he cannot remember as to who brought the postal article in relation to which Ext.X1 was issued on 12.10.2006. He also stated that he does not know whether it was brought by the member. 5. The Commission held in the impugned order that the member admits that he is duty bound to file the statement of assets and liabilities before the competent authority, the DDP on or before 18.7.2007; that the undisputed fact is that only one statement was received by the DDP, that too, on 18.9.2007; that though the member contends that the statement given on 18.9.2007 was a second one and initial statement was sent by certificate of posting on 12.10.2006, the evidence on record does not prove that even Ext.X7 certificate of posting is relatable to the so-called statement allegedly sent by the member on 12.10.2006; that the filing of a subsequent statement on 18.9.2007 as per Ext.X1 does not establish that the member had sent an earlier statement on 12.10.2006; and that the contention of the member that the initial statement dated 12.10.2006 was deliberately left out from being recorded in the inward register in the DDP’s office cannot be accepted, for reasons and inferences drawn by the Commission in the impugned order. The attribute of malafide intention as against P.W.2, the DDP, was found against by the Commission, holding that the analysis of the oral and documentary evidence clearly proves that the member had not submitted the statement of assets and liabilities on or before the stipulated date, 18.7.2007. The Commission held that the member is disqualified. 6. Attacking the findings of the Commission, Sri. K. Ramakumar, the learned senior counsel appearing for the member argued that the evidentiary value of Ext.X7 certificate of posting has not been considered in the light of the settled proposition of law that dispatch under certificate of posting is sufficient evidence of the communication having been issued. He relied on the judgment of the Apex Court in V.S. Krishnan v. Westfort Hi-tech Hospital Ltd., (2008) 3 SCC 363) and argued that the evidentiary value of postal articles sent under certificate of posting ought to be presumed and the burden to rebut that presumption is on the addressee. He relied on the judgment of the Apex Court in V.S. Krishnan v. Westfort Hi-tech Hospital Ltd., (2008) 3 SCC 363) and argued that the evidentiary value of postal articles sent under certificate of posting ought to be presumed and the burden to rebut that presumption is on the addressee. On the basis of the materials, the learned senior counsel therefore, quite cautiously, pointed out that it may not be possible for this Court to re-appreciate the evidence and come to a different conclusion, yet would be justified, on the facts and in the circumstances of the case, to order a remit to the Commission requiring appreciation of evidence in the light of the aforesaid precedent. 7. Per contra, Adv. Sri. P.V. Kunhikrishnan appearing for the voter pointed out that the provision in Section 159(1) to file a statement is not the same as addressing a statement and dispatching it and that such distinction ought to be considered in support of the impugned order. 8. Pookkootil Sandanandan, who was the member from Ward No.2, challenges the Commission’s decision declaring him as disqualified. 9. The relevant facts are the following: W.P.(C).No.14596 of 2008 (a) The fifth respondent, voter, alleged that the member did not file statement of assets by 18.7.2007 in terms of Section 159(1) and has, hence, incurred the disqualification under Section 35(1)(q) of the Act. (b) The member contended that he had sent the statement to the DDP on 10.3.2007 from the Post Office at Kallai. (c) The voter deposed as P.W.1. The DDP was examined as P.W.2. The Secretary of the Panchayat gave evidence as P.W.3. (d) Ext.P2 is a letter issued to the voter from the Information Officer of the DDP’s Office under the RTI Act stating that the member had not filed the statement of assets and liabilities till 25.7.2007, the date of that letter. Ext.X1 produced by P.W.2, DDP, is the statement filed by the member on 28.1.2008. Exts.X1(a) and X2(b) inward registers and Ext.X3 file, as also Ext.X4 register which shows the receipt of statement of assets and liabilities from the members of the Grama Panchayats in the Kozhikode District arranged panchayat-wise, did not show that the member had filed any statement before 25.7.2007. The DDP as P.W.2 deposed that the member should have filed the statement by 17.7.2007, but had done it only on 28.1.2008 as per Ext.X1. The DDP as P.W.2 deposed that the member should have filed the statement by 17.7.2007, but had done it only on 28.1.2008 as per Ext.X1. This is corroborated by the contents of Ext.X4. (d) The member gave evidence as R.W.1 and produced Ext.R1 receipt regarding certificate of posting issued by the Kallai Post Office on 10.3.2007. The said document shows that the Kallai Post Office had received a letter on 10.3.2007 for transmission to the DDP. The attempt of the member as R.W.1 was to show that Ext.R2 statement of assets and liabilities was forwarded as per Ext.R1 certificate of posting. R.W.2, the Post Master of Kallai Post Office deposed that Ext.R1 receipt was issued from that post office and it relates to a letter addressed to the DDP. 10. The Commission noticed that the admitted fact is that the last date for filing the statement was 18.7.2007; Ext.P2 letter dated 25.7.2007 issued from the Office of the DDP under the RTI Act proves that the member had not filed the statement till the date of that letter; that Ext.X1 proves that the statement was filed on 28.1.2008 and Ext.X4 shows that the only statement received from the member was the one filed by him on 28.1.2008; that Ext.R1 will only prove that a letter was sent to DDP on 10.3.2007; that the evidence of R.W.2 Post Master only corroborates that fact; that there is no independent evidence to prove that Ext.R2 statement was sent on 10.3.2007 and the Post Master as R.W.3 was unable to state the identity of the letter in relation to which Ext.R1 certificate of posting was issued. The Commission did not accept the plea in arguments on behalf of the member that the receipt of the statement dated 10.3.2007 was not recorded in the inward register maintained in the DDP’s Office and that such failure to enter was deliberate to ensure disqualification; that the materials on record proved only that the DDP had received one statement, that is, on 28.1.2008; and that it is not proved that any further statement was received in the Office of the DDP on or before 18.7.2007. 11. Adv. Sri. C. Vathsalan appearing on behalf of the member adopted the submissions of Sri. 11. Adv. Sri. C. Vathsalan appearing on behalf of the member adopted the submissions of Sri. K. Ramakumar on questions of law and pointed out further that the materials on record are sufficient to hold that the member had filed return within the due time limit. No other points canvassed. 12. On behalf of the voter, Adv. Sri. P.V. Kunhikirshnan reiterated his earlier stand that the requirement to file a statement is not achieved by showing a certificate of posting, which would only show that a material was taken by the Postal Department for dispatch. He pointed out further that the distance between the Post Offices and other attendant circumstances, as available in evidence, should necessarily lead to the conclusion that the member was attempting to abuse a certificate of posting that would have been issued to somebody else. 13. With the coming into force of the amendments to the Act as per Act 13/1999 with effect from 24.3.1999, sub-section 1 of Section 159 of the Act provides that a member of the panchayat shall, within three months from the date of assuming his office, file a statement of assets and liabilities as required by that provision, in the form prescribed, before the competent authority authorized in that behalf by the Government. Subsection 2 of Section 159 provides that a member of the panchayat, following subsequent acquisitions, disposals or creations of liabilities, shall file a statement in that regard to the competent authority within three months from the date of such acquisition or disposal or creation of liability, as the case may be. The proviso to sub-section 1 of Section 159 enjoins that a person who is a member of the panchayat at the commencement of the Act shall submit the statement of assets and liabilities to the competent authority, before the date specified by the Government in that behalf. Subsection 4 of Section 159 provides that where a member of the panchayat fails to file the statement to the competent authority within the due date, action may be taken to disqualify him from continuing as member of the panchayat. Clause (q) added to section 35(1) of the Act, with effect from 24.3.1999 as per Act 13/1999 provides that a member shall cease to hold office as such, if he has failed to file declaration of his assets within the time limit prescribed under Section 159. 14. Clause (q) added to section 35(1) of the Act, with effect from 24.3.1999 as per Act 13/1999 provides that a member shall cease to hold office as such, if he has failed to file declaration of his assets within the time limit prescribed under Section 159. 14. Experience showed that the legislative directions in Section 159, to file statement of assets and liabilities, stood honoured more in its breach. 15. Ultimately, sub-section 2 was introduced to Section 35 as per Act 11 of 2007, essentially condoning the failures. By that provision, the members got time till 18.7.2007 to file the statement of assets and liabilities, thereby escaping the wrath of disqualification in terms of Section 35(1)(p). This means that every member of a panchayat ought to have filed statement of assets and liabilities in terms of Section 159 Reasoning by Court (1) on or before 18.7.2007, or, would stand disqualified by the operation of Section 35 (1)(p). 16. Reverting to Section 159(1), the prescription is that a member shall file a statement. The proviso to sub-section 1 of Section 159 provides that a person who is a member of the panchayat at the commencement of the Act, shall submit such a statement. The filing in terms of Section 159(1) is to be before the competent authority. The submission in terms of the proviso is to the competent authority. The direction in Section 159 (2) is that a member shall file a statement in the eventualities falling under that provision. The incurring of liability to be proceeded against, in terms of sub-section 3 of Section 159, for making a false statement is the liability to be proceeded against in accordance with law, for filing such false statement. The liability to be disqualified under sub-section 4 of Section 159 is also made dependent on the failure to file statement. 17. Back to Section 35(1)(q), the cessation of office occurs, if the member has failed to file declaration within the time limit. 18. The aforesaid provisions abundantly show that the thrust is on the filing of the statement. The filing has to be before the competent authority. This is the specific content of the legislative provision under consideration. 17. Back to Section 35(1)(q), the cessation of office occurs, if the member has failed to file declaration within the time limit. 18. The aforesaid provisions abundantly show that the thrust is on the filing of the statement. The filing has to be before the competent authority. This is the specific content of the legislative provision under consideration. The word ‘file’, as a transitive verb, means to put upon a file: to arrange in an orderly way: to put on record: to bring before a court: (U.S.) to deposit, lodge – See Chamber’s Twentieth Century Dictionary. Choosing the contextually best among those dictionary meanings, the word ‘file’ in the provisions under consideration has to be definitely held as ‘to put on record’ or ‘to bring before a court’. In contrast to this, is the meaning of the word ‘post’ when used as a transitive verb relatable to the noun ‘post-office’. In that context, ‘to post’ means, among other things, ‘to entrust to the post office for transmission’ – See the afore-referred dictionary. Therefore, a certificate of posting only shows that a postal article has been entrusted to the post office for transmission. It does not mean that the postal article has been delivered to, or filed with, or submitted before the addressee, here, the competent statutory authority. 19. The distinction noted in the preceding paragraph is, in no way, watered down by the ratio of V.S. Krishnan (supra) where the only issue was as to whether notices were sent; not whether any particular notice was delivered. Section 53(2) of the Companies Act, 1956 provides a deeming provision that a notice duly addressed and stamped and sent under certificate of posting is deemed to have been duly served. That presumption as to service of documents on members by company does not apply to a case where the statutory prescription is that a particular statement has to be ‘filed’ or ‘submitted’. V.S. Krishnan (supra) does not, therefore, govern or apply as a guiding precedent, to be applied to the case in hand. Hence, the clear conclusion, going by the plain reading of the different sub-sections in Section 159 and the relevant provision in Section 35 of the Act, is that the liability under Section 35(1)(q) will be incurred with reference to Section 159, if the statement is not filed before the competent authority. Hence, the clear conclusion, going by the plain reading of the different sub-sections in Section 159 and the relevant provision in Section 35 of the Act, is that the liability under Section 35(1)(q) will be incurred with reference to Section 159, if the statement is not filed before the competent authority. Mere sending, posting, even if that is only certified by the postal department, or dispatch is insufficient. 20. Now, the above conclusion can also be tested from a functional approach. Section 159 of the Act, as it stood before 24.3.1999, was substituted by Act 13/1999. The introduction of such a provision was evidently for the purpose of ensuring transparency, creditability and accountability in the functioning of public men, the panchayat members. The provision of filing statement and the requirement to have it up-dated as and when changes occur in the assets and liabilities, abundantly show that the object sought to be achieved by that provision is to have information available with competent authorities even in the eventuality of any allegation being attributed to any conduct of a member of a panchayat which may, ultimately, turn out to be of, amassing wealth disproportionate to known sources of income. In that context, it would be meaningless to say that if a statement of assets and liabilities has been dispatched or put in transit through a post office to the competent authority, it has to be presumed that the member has duly filed or submitted the statement in obedience to the legislative commands in Section 159. The dispatch, even if proved, would not absolve the duty of the member of a panchayat to file the statement before the competent authority. The clear intention is that the statement shall be available in the file of the competent authority. The liability to ensure that it is filed is that of the member. Therefore, even having regard to the object of the provisions being interpreted, it cannot but be held that a member of a panchayat has to file the statement before the competent authority by ensuring that it is available before the competent authority, in the physical sense. The liability to ensure that it is filed is that of the member. Therefore, even having regard to the object of the provisions being interpreted, it cannot but be held that a member of a panchayat has to file the statement before the competent authority by ensuring that it is available before the competent authority, in the physical sense. The member cannot escape the clutches of Section 159 read with Section 35(1)(q), by contending that he had put the statement of assets and liabilities in transmission through post and that it ought to be presumed that he has discharged the obligation of filing the statement before the competent authority. 21. Having regard to the aforesaid findings on law, these writ petitions have, necessarily, to fail. 22. Be that as it may, I shall consider whether there is any error of law in the matter of appreciation of evidence by the Commission in these cases. 23. In C.P. Faisel’s case, the evidence tendered by P.W.2, the DDP is that the member had not filed the statement before the said competent authority before the cut off date. The certificate of posting, Ext.X7 relied on by the member, is not proved to be one issued in relation to the specific material that ought to have reached the competent authority, namely, the statement of assets and liabilities of the member. R.W.2, the Post Master said that he cannot remember the person who brought the postal article and also that the postal article cannot be identified with reference to the certificate of posting. Inferentially, the Commission has also noted that the member had taken the stand that he had filed the initial statement earlier, only when there were press reports regarding the non-filing of the statements in terms of Section 159. Coupled with this, is the submission on behalf of the Voter, following the suggestions made to R.W.2, the Post Master, regarding the distances between post offices and the office of the panchayat. DDP’s office etc. it is in this context that the learned counsel for the voter attempted to say that going by the common course of human conduct, it is unbelievable that the member went to a post office which is far away, to post the statement which ought to reach the DDP. DDP’s office etc. it is in this context that the learned counsel for the voter attempted to say that going by the common course of human conduct, it is unbelievable that the member went to a post office which is far away, to post the statement which ought to reach the DDP. The indication is that the member was able to lay hands on a certificate of posting which is now attempted to be passed off as one that would evidence the dispatch of a statement of accounts on 12.10.2006. With all the aforesaid materials, the Commission cannot be found fault for having held that it has not even be proved that the statement was dispatched and that the certificate of posting is not proved to be connected with or linked to the dispatch of any statement of accounts by the member. I do not, therefore, find any failure of justice, even in the matter of appreciation of evidence. 24. As regards the Pookootil Sandanandan’s case is concerned, the Commission found that the admitted fact is that the last date of filing the statement was 18.7.2007; that Ext.P2 letter proves that the member had not filed the statement till 25.7.2007, the date of that letter; that Ext.X1 proves that the statement was filed only on 28.1.2008; that though the member would state that the statement filed on 28.1.2008 is the subsequent statement under Section 159(2), Ext.X4 shows that the said statement was the only one that was received from the member and that the said statement was received on 28.1.2008; that the member has not succeeded in rebutting the evidence available in the form of Exts.X1, X4 and P.W.2, the DDP, on the strength of which, it has to be held that the first ever statement received from the member was the statement that was received by the DDP on 28.1.2008 and that no other statement was received from the member. The Commission specifically found that the deposition of R.W.2, the Post Master and Ext.R1, the certificate of posting, would only show that a letter was sent to the DDP on 10.3.2007 and it does not, in any manner, provide material to connect the said certificate of posting to the member or the factum of it being in relation to any statement put in transit by the member, addressed to the DDP. The Commission noted that there is no independent evidence to prove that the statement was sent on 10.3.2007 and that R.W.2, the Post Master, did not know the contents of the letter in relation to which Ext.R1 certificate of posting was issued. P.W.3, the Secretary of the Panchayat, had also deposed that he had not received the copy of the statement filed by the member. The plea of the member through his counsel before the Commission that the statement dated 10.3.2007 was not recorded in the inward register in the DDP’s Office and that such failure to record was deliberate, was rejected by the Commission. On the basis of the materials on record, there is no failure of justice or error of law in the matter of appreciation of evidence by the Commission. For the aforesaid reasons, these writ petitions fail and are accordingly dismissed. No costs.