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2009 DIGILAW 863 (KER)

Gopalan v. The Kerala State Election Commission

2009-09-15

THOTTATHIL B.RADHAKRISHNAN

body2009
Judgment : 1. The petitioner, the vice president of the third respondent Grama Panchayat, challenges notice of a motion of no-confidence against the 4th respondent, the president of that Panchayat. The fundamental plea projected is that Ext.P4 motion contains a signature, as that of the 5th respondent Abdul Kalam, a member, though he is not in India. It is also pleaded that the proposed motion is vitiated by fraud. 2. Ext.P3 does not contain the signature of Abdul Kalam. Ext.P4 is the Malayalam version of the form referable to Rule 15(2) of the Kerala Panchayat Raj (Procedure for Panchayat Meetings) Rules, 1995. That form does not require the signatures therein to be attested by any authority. Ext.P3 contains a signature as that of Abdul Kalam. Ext.P5 is the English version of the form in terms of Rule 15. That also carries a signature as that of Abdul Kalam in the presence of the Consulate General of India, Jeddah. Along with these materials, by now, the 5th respondent has filed a counter affidavit, challenging the very foundation of the writ petition and even charging the petitioner of having made a false statement in relation to the 5th respondent's signature. He further seeks leave of this Court to file appropriate application to prosecute the petitioner. One thing is certain from that counter affidavit; that the 5th respondent stands by his signatures in the disputed documents. With that counter affidavit, I do not find any justification to continue the interlocutory order issued deferring the consideration of the motion. 3. Now, the only issue that remains is the correctness of Ext.P8 decision issued by the Election Commission, taking the view that a member who is abroad with leave, is entitled to initiate a motion of no-confidence. A member could be deprived of certain rights if he proceeds abroad without leave. But if he goes with leave, he cannot be deprived of any of his rights in terms of the statutory provisions. He is entitled to receive honorarium also. Deprivations, if any, could be only in accordance with the statute. There is no prescription in law disabling a person who is abroad with leave from participating in a no-confidence motion. Hence, he will not be incapacitated even from being party to the exercise of moving a no-confidence motion. Therefore, Ext.P8 stands. 4. There are two intervening situations. Deprivations, if any, could be only in accordance with the statute. There is no prescription in law disabling a person who is abroad with leave from participating in a no-confidence motion. Hence, he will not be incapacitated even from being party to the exercise of moving a no-confidence motion. Therefore, Ext.P8 stands. 4. There are two intervening situations. It is stated that there was a by-election while matters were pending consideration either before the Commission or before this Court. The question whether the member so elected is entitled to vote is not an issue directly arising for decision here. However, that has been substantially pointed out by the learned counsel appearing for the Panchayat on the premise that lack of clarity in that regard may lead to confusion. It also appears that apart from the motion of no-confidence that led to this writ petition, notice of yet another motion of no-confidence is also given. The question is whether both the motions could be considered or whether the one that led to the writ petition, which is earlier in point of time, has to be given precedence. 5. Adverting to the different provisions in Section 157 of the Act, judgment dated 17.8.2009 in W.P(C).23447/09 was delivered holding, among other things, that the situs of the jurisdictional fact generating the prohibition contained in sub-section 13 of Section 157 is the meeting. To hold so, it was further held that the copy of the motion given along with the notice of the intended motion becomes alive for generating the incidentals that could arise there from only on its presentation in the meeting, by the presiding officer, reading it out and declaring it open for debate. Applying that law, the motion of no-confidence, for which notice was issued at an earlier point of time, cannot gain any precedence if there is also another lawfully moved motion of no-confidence, with lawful notice in terms of the statutory provisions, when the motion notified earlier is read out and put to debate and voting, if necessary. Therefore, if the authorised officer decides to hold a meeting for consideration of both the motions of no-confidence in a consolidated manner, it will not infract any statutory provision. 6. Therefore, if the authorised officer decides to hold a meeting for consideration of both the motions of no-confidence in a consolidated manner, it will not infract any statutory provision. 6. Now, with the law as noticed above, the legal incidents referable to no confidence motion arise at the meeting in which it is presented, unless the meeting falls for want of quorum. As a necessary consequence, all persons who are members of the Panchayat at the time of the meeting are entitled to participate in the consideration of that motion. Therefore, a member elected in a bye-election, after notice of a no-confidence motion, is also entitled to participate in the consideration and voting in relation to that no-confidence motion. Hence, the member of the Panchayat who came in following the bye-election is also entitled to participate in the meetings in which the motions of no-confidence would be considered. 7. For the aforesaid reasons, vacating the interim order granted in this case and affirming the legality of Exts.P3, P4, P5and P8, it is ordered that the authorised officer will schedule a meeting of the Panchayat for consideration of the motion that has led to this writ petition and also the subsequent motion Ext.R1 (a), if that is otherwise in order, and put both those motions to debate and vote compositely. This will do complete justice between the parties. The notices to be issued shall be on the basis that the notices of the motions have been received today, i.e., on the date of this judgment. The writ petition is ordered accordingly.