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2009 DIGILAW 1172 (KER)

K. G. Unni v. N. Abdul Rasheed

2009-12-08

THOTTATHIL B.RADHAKRISHNAN

body2009
Judgment :- “CR” The petitioner and first respondent are members of a Grama Panchayat. The first respondent filed a petition before the Kerala State Election Commission for decision on the question whether the petitioner has become disqualified under Section 35(o) of the Kerala Panchayat Raj Act, 1994, for short, the 'Act'. The allegation against the petitioner is that on 4th July, 2006, he caused damage to the glass top of a table, a flower vase, a steel chair, door and the telephone belonging to the panchayat. He is attributed with behaviour, unbecoming of a member of the Panchayat and of indecent behaviour to the Panchayat President, trying to assault her and by shouting obscene and abusive language at her. 2. The petitioner filed objections denying the overt acts attributed to him and stating that the allegations are false and made with sinister motive, owing to political vendetta. In so far as the assertion of the first respondent that police had registered a crime against the petitioner, under Section 3(2) of the Prevention of Destruction of Public Property Act and under Section 354 IPC is concerned, the petitioner pleaded in his objections that it is a false case and, though registered, there is every chance of his acquittal. 3. The petitioner sought an order on the question of maintainability of the petition. The matter was argued on that issue. The Commission held that there is prima facie case against the writ petitioner, of his having caused loss to the panchayat property and if so found at trial, that could amount to a disqualification under Section 35(o). The petition before the Commission was thus held to be maintainable. That is under challenge. 4. Section 35(o) of the Act provides that a member shall cease to hold office as such, if he is liable for loss, waste or misuse caused to the panchayat. Ext.P1 petition before the Commission contains a specific plea that on 4.7.2006, the writ petitioner "cause havoc in the office of the President, and caused damage to the glass on the table, flower vase, a steel chair, door and the telephone and all other things belonging to the office of the President of the panchayat". In the writ petitioner's objections before the Commission, he pleaded that the aforesaid allegations are totally false and are made with sinister motive. In the writ petitioner's objections before the Commission, he pleaded that the aforesaid allegations are totally false and are made with sinister motive. He denied those allegations and further stated that he had not caused any damage to the panchayat by his act. Therefore, there is an assertion by the first respondent as to the existence of the fact that would constitute a disqualification of the writ petitioner under Section 35(o) of the Act. Contradicting that the petitioner has denied those allegations. Hence, a question arose as to whether the writ petitioner has become disqualified under Section 35(o). The decision on that question is to be rendered by the Commission on a petition. This is the dictate of Section 36(1) of the Act. Therefore, the finding of the Commission in the impugned order that the petition filed by the first respondent before it is maintainable, cannot be faulted on any jurisdictional issue or illegality. The Commission's finding that there is a prima facie case against the writ petitioner of having caused loss to the panchayat property is only a statement that there are allegations against him, made to that effect. That does not amount to a finding that the writ petitioner had committed such acts. The impugned order will not therefore stand in the way of the writ petitioner raising all questions at trial. However, having challenged the impugned order and this court having found that there is no jurisdictional error or legal infirmity with that order, the question of maintainability of the petition before the Commission will stand answered against the writ petitioner. 5. An incidental, but important question that arises for consideration is as to whether the Commission was duty bound to consider the issue of maintainability as a preliminary one. 6. Disqualification of a member under Section 35 of the Act is nothing but cessation of office. That member shall cease to hold office. The effect of Section 35 is automatic and the disqualification operates from the incurring of such disqualification. It does not depend upon any order that the Commission may issue. This is also clear from the manner in which sub-section 2 of Section 36 is couched; to wit, that the commission may pass an order as to whether a member may continue in office or not till a decision is taken. It does not depend upon any order that the Commission may issue. This is also clear from the manner in which sub-section 2 of Section 36 is couched; to wit, that the commission may pass an order as to whether a member may continue in office or not till a decision is taken. This aspect of cessation of membership by the operation of Section 35, is noticed to be reminded of the urgency in disposing matters relating to allegations of disqualification and consequences of cessation. 7. With the aforesaid in mind, Section 36(3) of the Act provides that a petition under sub-section (1) shall be disposed of in accordance with the procedure applicable under the Code of Civil Procedure, when trying a suit. The question that is raised for determination by a petition under Section 36(1) of the Act is always as to whether a member has become disqualified. The procedure applicable when trying a suit imposes the requirement in Order XLI Rule 2 of the Code of Civil Procedure that judgment shall be pronounced on all issues, notwithstanding that a case may be disposed of on a preliminary issue. Rule 2(2) in that Order provides that the court may try an issue as a preliminary issue, only if it is of the opinion that the case or any part thereof may be disposed of on an issue of law only; that too, only if that issue relates to the jurisdiction or a bar to the suit created by any law for the time being in force. In the case in hand, the plea of the writ petitioner is that the petition before the Commission was premature and filed with sinister motive and that therefore the maintainability of the petition has to be considered first. He had also contended that the petition is filed as an abuse of process of law and has to be dismissed. Therefore, there was no plea of lack of jurisdiction for the Commission to consider the matter placed before it in the petition filed by the first respondent. There was also no plea for the writ petitioner that the petition is barred by any law for the time being in force. 8. The issue of maintainability may be a matter, many a times, relating to the entire bundle of facts pleaded to establish a cause of action. There was also no plea for the writ petitioner that the petition is barred by any law for the time being in force. 8. The issue of maintainability may be a matter, many a times, relating to the entire bundle of facts pleaded to establish a cause of action. The assertions as to facts, and denial of those assertions, as also counter allegations, essentially give rise to mixed questions of law and fact. No such issue could be tried, as a preliminary issue or point. Section 139 would also show that the Commission would have different powers even to reach at evidence that may be required. Therefore, clearly, there was no necessity for the Commission to have decided the question of maintainability leading to issuance of the impugned order. 9. The aforesaid position notwithstanding, in the case in hand, the impugned order stands as already found. For the aforesaid reasons, this writ petition fails. In the result, writ petition is dismissed. No costs.