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2013 DIGILAW 675 (KER)

Molly Peter v. Thankamani Pavithran

2013-08-05

P.N.RAVINDRAN

body2013
Judgment : 1. The petitioner was elected as the member representing Ward No.17 of Ramapuram Grama Panchayat in the elections held on 25.10.2010. The results were declared on 27.10.2010. The petitioner secured 421 votes and respondents 1 to 3 secured 382, 56 and 152 votes respectively. The petitioner was also later elected as the President of Ramapuram Grama Panchayat. 2. The first respondent herein challenged the election of the petitioner by filing O.P.(Election) No.4 of 2010 in the Court of the Munsiff of Pala under sections 89, 92, 102 and 103 of the Kerala Panchayat Raj Act, 1994 ("the Act" for short). She contended that the election of the petitioner (the first respondent in the election petition) is void for the reason that (1) on the date of the election she was disqualified to be chosen to fill the seat; (2) the details furnished by her under sub-section (1A) of section 152 of the Act were fake; and (3) the declaration submitted by her in Form No.2 (the nomination paper) is false. In the election petition it was alleged that the Hon'ble Ombudsman for Local Self Government Institutions ("the Ombudsman" for short) had by order dated 9.7.2003 passed on C.M.P.No.46 of 2003 and O.P.No.586 of 2001 (a copy of which is produced as Ext.P5 in the instant original petition) found the petitioner herein and the Secretary of the Grama Panchayat guilty of corruption, held that they are liable to penalised under section 271-J(3) of the Act and had also imposed a penalty of 10,000/- and 5,000/-respectively on them, further held that they are personally liable for mal administration and directed the Election Commission to declare that the petitioner herein (the President of the Grama Panchayat) has ceased to hold office as an elected member, that the petitioner had not paid the penalty imposed by the Ombudsman, that on the date of the election she was in arrears to the Panchayat, that she had suppressed the said fact in Form No.2-A, that she had made a declaration in the nomination paper that she is qualified to fill the seat and is not disqualified and that she had knowingly made a declaration that she is not disqualified notwithstanding the fact that she was disqualified to fill the seat in the Panchayat. On these grounds the first respondent prayed for a declaration that the election of the petitioner is void and a further declaration that she has been duly elected. Ext.P1 produced along with the original petition is a true copy of O.P. (Election) No.4 of 2010, referred to above. 3. The petitioner herein resisted the election petition. She contended that the election petition is not maintainable, that at the time of scrutiny of the nomination papers on 5.10.2010 or thereafter, the petitioner or the other candidates had not contended that she is disqualified, that the petitioner in the election petition is therefore estopped from raising the question of disqualification and that no grounds exist to declare her election void. She also contended that she had not given any false details in the declaration in Form No.2A of the Act and therefore, she was not disqualified under section 34(1)(b)(ii) and 34(1)(b)(iii) of the Act on the date of the election. She also contended that she was not a party to the proceedings before the Ombudsman and was not afforded an opportunity of being heard and therefore, the said order is not binding on her. She also contended that the said order is under challenge in W.P.(C)No.28512 of 2003 filed by her in this Court, that this Court has passed an interim order staying the enforcement of the order of the Ombudsman and therefore, relying on the order of the Ombudsman the petitioner in the election petition cannot seek any relief. She also contended that the Ombudsman has not found her guilty of corruption, that the Ombudsman has no jurisdiction to find her guilty of corruption and therefore, section 34(1)(b)(iii) of the Act is not attracted. She also contended that she is not in arrears to the Panchayat as alleged in the election petition, that she has not suppressed any fact in the statement filed along with her nomination and therefore, her election is not liable to be declared void. 4. The Court of the Munsiff of Pala considered the rival contentions and the evidence, oral and documentary available in the case and held by Ext.P2 order passed on 8.11.2012 that the election of the petitioner (the first respondent in the trial court) is liable to be declared void. 4. The Court of the Munsiff of Pala considered the rival contentions and the evidence, oral and documentary available in the case and held by Ext.P2 order passed on 8.11.2012 that the election of the petitioner (the first respondent in the trial court) is liable to be declared void. While the election petition was pending, the Ombudsman allowed a review petition filed by the petitioner herein (R.P.No.17 of 2003) seeking a review of Ext.P5 order of the Ombudsman, reviewed the said order and reposted the petition on which Ext.P5 order was passed for consideration on the merits with a direction to the petitioner before the Ombudsman to implead the President of the Panchayat (the petitioner herein) as a party to the proceedings for a proper disposal of the case before the Ombudsman. A copy of the said order was produced in the trial court and marked as Ext.B1. The trial court however held that the question whether the nomination was improperly accepted has to be determined with reference to the state of affairs as on the date fixed for filing of the nomination, its scrutiny and election and therefore, the order passed by the Ombudsman setting aside the earlier order, (Ext.P5 herein and Ext.A12 before the trial court) would not cure the disqualification at the time of filing of the nomination and its scrutiny. The trial court held that the petitioner herein was disqualified for being chosen and for being a member of the Panchayat as on the date of submission of the nomination, its scrutiny and the election under section 34(1)(b)(iii) and 34(1)(J) of the Act. The case set out by the first respondent (the petitioner before the trial court) that the petitioner herein was disqualified under section 34(1)(b)(ii) of the Act was rejected. The operative portion of the order passed by the trial court allowing O.P.(Election) No.4 of 2010 reads as follows:- Nos.2 and 5, petition is allowed in part, as follows:- (1) It is declared that the election of first respondent, the returned candidate, from the Constituency (Ward) No.17, Pazhamala of Ramapuram Grama Panchayat in the election held on 25.10.2010, is void U/s 102(1)(a) r/w 100(b) of the Kerala Panchayat Raj Act, 1994. (2) The claim of the petitioner for the declaration that she has been duly elected, is disallowed. (3) Considering the facts and circumstances of the petition, parties are directed to bear their respective costs. (2) The claim of the petitioner for the declaration that she has been duly elected, is disallowed. (3) Considering the facts and circumstances of the petition, parties are directed to bear their respective costs. 5. Aggrieved by Ext.P2 order passed by the Court of the Munsiff of Pala declaring her election void, the petitioner herein filed A.S.No.265 of 2012 in the Court of the District Judge of Kottayam. Along with that appeal, she filed I.A.No.1672 of 2012 praying for stay of operation of Ext.P2 order dated 8.11.2012 passed by the Court of the Munsiff of Pala in O.P.(Election) No.4 of 2010. A copy of the said application is on record as Ext.P3. The Court of the District Judge considered the said application with notice to the respondents and after considering the rival contentions dismissed the application for stay of operation of Ext.P2 order passed by the trial court, by Ext.P4 order dated 30.11.2012, but with the following directions:- "In the result, the petition is dismissed, however with the following directions: 1. That the Election Commission will fairly and reasonably respect the request of this court coming under the colour of a direction that it will not proceed to issue any fresh notification for election pursuant to the judgment of the Munsiff in dispute in appeal till the appeal is disposed by the appellant court. 2. The appellant herein is allowed to participate in the meetings and proceedings of the panchayat but on the condition that she shall not exercise any voting right in any such meetings and proceedings. The parties shall suffer their respective costs in the petition." The instant original petition was thereupon filed on 9.1.2013 challenging Ext.P4 order and seeking the following main reliefs. "(i) Call for the records leading to Exhibit-P4 and set aside Exhibit P4 order in so far as it refused to stay the operation of Exhibit P2 order. (ii) Direct the District Judge, Kottayam to stay the operation of Exhibit P2 order pending disposal of A.S.265 of 2012." 6. "(i) Call for the records leading to Exhibit-P4 and set aside Exhibit P4 order in so far as it refused to stay the operation of Exhibit P2 order. (ii) Direct the District Judge, Kottayam to stay the operation of Exhibit P2 order pending disposal of A.S.265 of 2012." 6. The main ground raised in the instant original petition is that the appellate court erred in declining to pass an order staying the operation of Ext.P2 order passed by the trial court, that the finding entered by the appellate court that Ext.P2 order has come into effect by reason of section 107 of the Act is unsustainable in law and that the appellate court failed to take note of the injustice which would be caused to the petitioner by not staying the operation of the order passed by the trial court. The instant original petition was admitted and notice ordered to the respondents on 28.5.2013. The first respondent herein had in the meanwhile filed I.A.No.1187 of 2013 in A.S.No.265 of 2012 for an order directing the petitioner herein to be present and to withdraw the stipulation in Ext.P4 interim order permitting the petitioner herein to participate in the meetings and proceedings of the Panchayat. The lower appellate court considered I.A.No.1187 of 2013 and held that the relief sought therein cannot be granted but observed that certain clarifications of the order earlier passed by it are required and accordingly issued Ext.P7 order dated 29.5.2013 which reads as follows: "Copy served. Objection filed. Heard both sides. The 1st two prayers made in the petition that there shall be an order directing the appellant to be present and that the concession made in the order permitting the appellant to take part in the proceedings of the panchayat should be withdrawn cannot be allowed and there is no scope for any enquiry there. But I find that in the light of circumstances brought out it is necessary to make clarifications of the order passed by this court and accordingly the position is clarified as follows: 1. There is no stay ordered either in part or in full against the orders passed by Lower court and the lower court order till it is disturbed in appeal will continue to be in force. 2. There is no stay ordered either in part or in full against the orders passed by Lower court and the lower court order till it is disturbed in appeal will continue to be in force. 2. Permitting the petitioner/appellant to take part in the proceedings does not mean that the appellant is now recognized as the president or even as a member with voting power or in short his status for the time being is only that of a spectator with no voting power. This petition is disposed in the above terms. Parties shall suffer their respective cost." The original petition was thereupon amended incorporating prayer No.(ia) challenging Ext.P7 and raising additional grounds. Prayer No.(ia) reads as follows: "(ia) Call for the records leading to Exhibit P7 and set aside Exhibit P7 order." 7. The first respondent has filed a counter affidavit dated 4.7.2013 resisting the writ petition as amended. Parties shall suffer their respective cost." The original petition was thereupon amended incorporating prayer No.(ia) challenging Ext.P7 and raising additional grounds. Prayer No.(ia) reads as follows: "(ia) Call for the records leading to Exhibit P7 and set aside Exhibit P7 order." 7. The first respondent has filed a counter affidavit dated 4.7.2013 resisting the writ petition as amended. It is stated that two members representing Ward Nos 3 and 1 of Ramapuram Grama Panchayat had filed W.P.(C) No.26983 of 2012 in this Court joining the petitioner herein as the third respondent and seeking an order directing the Secretary of the Ramapuram Grama Panchayat to report the vacancy in the office of the President of the Grama Panchayat to the State Election Commission and for an order forbidding the third respondent (the petitioner herein) from acting as the President of the Ramapuram Grama Panchayat in view of the fact that her election has been declared void, that in the said writ petition the petitioners had also challenged a notice dated 9.11.2012 convening a meeting of the Panchayat on 17.11.2012 on the ground that it is one issued by the petitioner herein, whose election has been declared void, that in the said writ petition an interim order was passed staying the notice dated 9.11.2012, that in W.P.(C) No.26983 of 2012 the State Election Commission, which was the first respondent therein, had filed Ext.R1(a) statement dated 15.1.2013, that in the said statement, the State Election Commission had averred that the Election Commission did not notify election to the office of the President of Ramapuram Grama Panchayat in view of Ext.P4 interim order, that if it is clarified by the Court of the Principal District Judge, Kottayam on being moved by the parties or if this Court so directs, the Commission shall notify the election to the office of the President of Ramapuram Grama Panchayat, that she thereafter filed I.A.No.1187 of 2013 in A.S.No.265 of 2012 seeking a clarification of Ext.P4 interim order, that W.P.(C) No.26983 of 2012 was disposed of in view of Ext.P7 order passed by the Court of the Principal District Judge of Kottayam on the application for clarification and the notification dated 4.7.2013 issued by the State Election Commission for holding election to the office of the President of Ramapuram Grama Panchayat on 26.7.2013, that a contempt case was also filed against the Secretary of the Grama Panchayat and the petitioner herein, for having issued a notice convening the meeting of the Grama Panchayat on 14.5.2013 in violation of the interim order passed in the said writ petition, that when the contempt case came up for hearing on 23.5.2013, learned counsel appearing for the petitioner who was the second respondent in the contempt case submitted that the meeting would not be convened and that in such circumstances, no relief can be granted in the instant original petition. 8. I heard Sri.P.K.Suresh Kumar, learned Senior Advocate appearing for the petitioner, Sri.George Thomas Mevada, learned Senior Advocate appearing for the first respondent and Sri.Devan Ramachandran, learned counsel appearing for the petitioners in I.A.No.10383 of 2013. The learned Senior Advocate appearing for the petitioner contended that the petitioner was found disqualified for being chosen and for being a member of the Panchayat on the ground that the Ombudsman had by Ext.P5 order found her personally liable for maladministration and also on the ground that under that order she was liable to pay a penalty of Rs. 10,000/-, that the said order of the Ombudsman was passed without notice to the petitioner and behind her back, that it was reviewed and set aside by the Ombudsman by order passed on 25.9.2012 in R.P.No.17 of 2013 after entering a finding that the order earlier passed cannot bind the petitioner, that the Ombudsman after reviewing its earlier order posted the petition before it for fresh consideration with a direction to the petitioner before the Ombudsman to implead the President as a party to the proceedings and therefore, the finding entered by the trial court that the election of the petitioner is liable to be declared void cannot be sustained. The learned Senior Counsel contended that it was on account of these reasons that the appellate court in the first instance passed Ext.P4 order and requested the Election Commission not to issue any fresh election notification pursuant to the judgment under challenge till the disposal of the appeal, that the reliefs sought in the application for clarification were also no granted and therefore, as the appellate court has virtually stayed fresh elections pursuant to the judgment of the Court of the Munsiff of Pala till the appeal is disposed of and in view of the said order, the bye-election to Ward No.17 of the Ramapuram Grama Panchayat and the election to the office of the President of Ramapuram Grama Panchayat cannot be held, the original petition may be disposed of with a direction to the appellate court to expeditiously dispose of the appeal pending before it and to keep in abeyance further proceedings pursuant to the notification dated 4.7.2013 issued by the State Election Commission to hold election to the office of the President of Ramapuram Grama Panchayat till such time as the appeal is disposed of. The learned Senior Counsel for the petitioner contended relying on the decision of a learned Single Judge of this Court in Padmakumar v. Unni Krishnan ( 2004 (1) KLT 1097 ) that the appellate court can pass not only an order staying the bye-election to Ward No.17 but an order staying the election to the office of the President, that such an order was passed by the appellate court when it issued Ext.P4 order, that the first respondent herein has not challenged the said order, the said order was also not clarified and therefore, no prejudice whatsoever will be caused to the first respondent by directing expeditious disposal of the appeal and staying further proceedings pursuant to the notification dated 4.7.2013 issued by the Election Commission to elect a new President for Ramapuram Grama Panchayat. 9. Per contra, Sri.George Thomas Mevada, learned Senior Advocate appearing for the first respondent contended with reference to sections 107 and 153 (11) of the Act that Ext.P2 order passed by the trial court took effect as soon as it was pronounced, that thereby, the petitioner ceased to be a member of the Panchayat and consequently, by virtue of sub section (11) of section 153 of the Act, the petitioner should be deemed to have vacated the office of the President of Ramapuram Grama Panchayat. Relying on sub section (1) of section 153 of the Act, the learned Senior Advocate appearing for the first respondent contended that there has to be a President and a Vice President in every Panchayat elected from among the elected members of that Panchayat, that sub section (5) of section 153 of the Act contemplates election of the Vice President and President within three weeks from the date on which the names of the members elected to the Panchayat are published by the State Election Commission, that if in the case of a newly constituted Panchayat, the President and Vice President have to be elected within three weeks, the same principle should apply when the office of the President of a Panchayat falls vacant, that the office of the President has fallen vacant by reason of Ext.P2 order and the operation of sub section (11) of section 153 of the Act and therefore, the petitioner cannot take exception to the notification issued by the Election Commission on 4.7.2013 notifying the election to the office of the President of Ramapuram Grama Panchayat. The learned Senior Advocate also contended that the petitioner has not challenged the said notification, that Ext.P4 order passed by the Court of the District Judge of Kottayam did not also stay the election to the office of the President of Ramapuram Grama Panchayat and therefore, no interference is called for with the steps taken by the State Election Commission to fill up the vacancy in the office of the President of Ramapuram Grama Panchayat. The learned Senior Advocate also contended that the rights of the petitioner have been protected by the appellate court by Ext.P4 order by staying the bye-election to Ward No.17 and therefore, no prejudice will be caused to the petitioner if the vacancy in the office of the President of Ramapuram Grama Panchayat is filled up. Sri.Devan Ramachandran, learned counsel appearing for the petitioners in I.A.No.10383 of 2013 reiterated the aforesaid submissions made by the learned Senior Counsel appearing for the first respondent. 10. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. Sri.Devan Ramachandran, learned counsel appearing for the petitioners in I.A.No.10383 of 2013 reiterated the aforesaid submissions made by the learned Senior Counsel appearing for the first respondent. 10. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. The first respondent had in O.P.(Election) No.4 of 2010 filed by her in the Court of the Munsiff of Pala challenged the election of the petitioner herein mainly on the ground that she was disqualified to be chosen and for being a member of the Panchayath, in view of Ext.P5 order passed by the Ombudsman, wherein according to the first respondent, the Ombudsman had found the petitioner guilty of an offence of corruption. She had also alleged that the details furnished by the petitioner in Form No.2A as required under section 52(1)(a) of the Act were fake and that the declaration submitted by her in the nomination in Form No. 2 was false. It was alleged that though the Ombudsman had imposed a penalty of .10,000/- on the petitioner and the said amount was due to the Panchayath, it was not mentioned in the details furnished in Form No.2A and that, in the declaration part of the nomination she had declared that she is qualified to fill the seat and was not disqualified for being chosen as a member of the Panchayat. The contention raised by the first respondent that the petitioner was disqualified under section 34(1)(ii) of the Act was repelled, after entering a finding that the Ombudsman has not found her guilty of an offence of corruption. The trial court however held that the petitioner is disqualified under section 34 (1)(b)(iii) and 34(1)(j) of the Act on the ground that she had been found liable for mal-administration, a penalty of Rs. 10,000/- had been imposed on her and the said amount had not been paid. Such a finding was entered relying on Ext.P5 order passed by the Ombudsman on 9.7.2003. 10,000/- had been imposed on her and the said amount had not been paid. Such a finding was entered relying on Ext.P5 order passed by the Ombudsman on 9.7.2003. Though the petitioner contended relying on Ext.B1 order produced before the trial court that Ext.P5 order of the Ombudsman which was produced and marked as Ext.A12 in the trial court has been reviewed and set aside and no reliance can be placed on it to hold that she is disqualified, that contention was repelled on the ground that the question whether a candidate is disqualified or not has to be determined with reference to the state of affairs as on the date of scrutiny and the date of election and not on the date on which the judgment in an election petition or an appeal against it is delivered. Reliance was placed on the decision of the Apex Court in Prabhakaran v. Jayarajan (2005 (1) KLT 510SC) in entering such a finding. The trial court also held that though the operation of Ext.P5 order passed by the Ombudsman was stayed by this Court in W.P.(C) No.28424 of 2003 initially by order passed on 29.9.2003 for a period of three months and the interim order of stay was extended for a further period of three months by order passed on 19.12.2003, the order of stay was not thereafter extended and therefore, Ext.P5 order passed by the Ombudsman was in force on the date of which the nomination was filed, scrutiny was conducted and the elections were held. The trial court accordingly held that the election of the petitioner is liable to be declared void under section 102 (1)(a) of the Act. The contention of the first respondent that the election of the petitioner is liable to be set aside under section 102(1)(d)(i) and 102 (1)(ca) of the Act was rejected. It is evident from a reading of Ext.P2 order passed by the trial court that the election of the petitioner was declared void because of Ext.P5 order passed by the Ombudsman finding her guilty of mal administration and the imposition of a penalty of Rs. 10,000/- 11. Ext.P5 order was passed by the Ombudsman on a petition filed by a resident of Ramapuram Grama Panchayath as C.M.P.No.46 of 2003 in O.P.No.586 of 2001. 10,000/- 11. Ext.P5 order was passed by the Ombudsman on a petition filed by a resident of Ramapuram Grama Panchayath as C.M.P.No.46 of 2003 in O.P.No.586 of 2001. Ext.P5 order discloses that in O.P.No.586 of 2001 the Ombudsman had passed an order dated 26.3.2003 which is extracted in the first three paragraphs of Ext.P5. It also discloses that the Panchayath had on 7.4.2003 filed an application for enlargement of time to complete the work and it was allowed. The petitioner before the Ombudsman thereafter filed C.M.P.No.46 of 2003. It was on that application that Ext.P5 order was passed finding the President and Secretary of the Grama Panchayath guilty of mal administration and levying a penalty of .10,000/-and .5,000/- respectively on them. In the petition before the Ombudsman (O.P.No.586 of 2001) the Secretary of the Grama Panchayath alone was joined as a party. The application for enlargement of time was also filed by the Secretary of the Grama Panchayath. That application was allowed by order passed on 7.4.2003 which is also extracted in Ext.P5 order. The President of the Panchayath at the relevant time was not eo-nomine made a party to the petitions before the Ombudsman. The petitioner herein, who was the then President of the Grama Panchayath thereupon filed R.P.No.17 of 2003 to review Ext.P5 order. That application was allowed by order passed on 25.9.2012, a copy of which was produced and marked as Ext.B1 before the trial court. The said order is extracted below in full: "My predecessor in office by order dated 09.07.2003 had passed a very detailed order whereby he has found the President and Secretary bound to pay a penalty of Rs.10,000/- and Rs.5,000/-respectively. He has directed the Deputy Director of Panchayat to complete the work ordered. He also found that the President is liable for mal-administration and directed action. He also had ordered Police investigation. It is to review that order, the R.P. is filed. At the outset, I may like to state that CMP was filed for the implementation of the order passed by this authority as well as for taking action for non-implementation. But I find that only the Secretary alone is made a party in the petition and I find that learned Ombudsman has entered different findings against the President of the Panchayat without making her formally as a party in the CMP. But I find that only the Secretary alone is made a party in the petition and I find that learned Ombudsman has entered different findings against the President of the Panchayat without making her formally as a party in the CMP. Even if an affidavit is filed on behalf of the President, since the President is not a party, it is very difficult to make the order binding on that person. It has to be stated that very serious findings are found and in such circumstances it is inevitable that the President also should have been made a party. Since it is an error apparent on the face of the records, I review the order dated 09.07.2003 and post the CMP for fresh consideration. I make it very clear that only on technical grounds at this stage I have interfered with the order and I have not applied my mind on merit and demerit. It will be considered when this matter is again reconsidered. The most appropriate thing is to get a project regarding the water supply implemented and who all are interested should see that it is done. So, that will also be considered when the matter will be dealt with. Therefore, the R.P. is allowed, order dated 09.07.2003 is reviewed and the CMP is reposted for consideration on merit on all the points that has been considered by my predecessor. The petitioner is also directed to implead the President as a party to the CMP for a proper disposal of the CMP. Post CMP No.46/2003 on 19.10.2012." 12. The Ombudsman has in the order dated 25.9.2012 stated that Ext.P5 order was passed on C.M.P.No.46 of 2003 filed for implementation of the earlier order passed by the Ombudsman as well as for taking action for non-implementation, that the Secretary alone was made a party, but findings have been entered against the President without formally making her a party to the petition. The Ombudsman has also stated though an affidavit was filed on behalf of the President, since the President was not a party, it is difficult to make the order binding on the President, that in view of the findings, it is inevitable that the President should have been made a party and that the failure to make the President a party is an error apparent on the face of the record. Ext.P5 order was accordingly reviewed and the petitioner before the Ombudsman was directed to implead the President of the Panchayat as a party to C.M.P.No.46 of 2003, for its proper disposal. Ext.B1 order passed by the Ombudsman on 25.9.2012 discloses that Ext.P5 order is no longer in force. The trial court however declined to act on Ext.B1 order for the reason that it was passed only on 25.9.2012 and it cannot govern the state of affairs as on the date of nomination, scrutiny and election which took place on 4.10.2010, 5.10.2010 and 25.10.2010 respectively. Reliance was placed on the decision of the Apex Court in Prabhakaran v. Jayarajan (supra) in entering such a finding. The election of the first petitioner was accordingly declared void on that short ground. The appellate court after considering the rival contentions held by Ext.P4 order that though the operation of the order of the trial court as such cannot be stayed and the effect of section 107 of the Act cannot be taken away, the court is bound to request the State Election Commission not to issue a fresh notification and hold elections pursuant to the judgment of the Munsiff Court till the disposal of the appeal. The appellate court also held that the appellant before it (the petitioner herein) may also take part in the meetings of the Panchayat but with no voting rights. The appellate court accordingly requested the State Election Commission not to proceed to issue a fresh notification pursuant to the judgment of the Court of the Munsiff until the appeal is disposed of. The petitioner was also allowed to participate in the meetings of the Panchayat but with the rider that she will not have voting rights. Though the first respondent herein sought a clarification of that order by filing I.A.No.1187 of 2013 and to withdraw the permission granted by Ext.P4 order to the petitioner to participate in the meetings of the Panchayat, that request was rejected. 13. In my opinion, the clarification issued by the appellate court in Ext.P7 does not take away the effect of Ext.P4 order. All that the appellate court has in Ext.P7 order clarified is that there is no stay of the order passed by the trial court. 13. In my opinion, the clarification issued by the appellate court in Ext.P7 does not take away the effect of Ext.P4 order. All that the appellate court has in Ext.P7 order clarified is that there is no stay of the order passed by the trial court. The said clarification is in tune with the finding in Ext.P4 interim order that the operation of the order of the trial court cannot be stayed in view of section 107 of the Act. The second clarification is to the effect that the permission granted to the petitioner to take part in the proceedings does not mean that she is recognized as the President of the Panchayat or as a member with voting power. The said clarification also does not in my opinion take away the effect of Ext.P4 order whereby the appellate court requested the State Election Commission not to issue any fresh notification for holding elections pursuant to the judgment of the trial court. As the petitioner was not only a member of the Panchayat but also its President, the effect of the order passed by the trial court is that she ceases to be the President as well. The appellate court has not either in Ext.P4 order or in Ext.P7 order stated that election to the office of the President can go on and that the bye-election alone should be deferred. The order passed by the appellate court requesting the State Election Commission to stay its hands was issued having regard to the fact that if a bye- election to Ward No.17 is held while the appeal is pending, the appellate remedy would be rendered illusory and meaningless in the event of the appeal being allowed and the order of the trial court being set aside. The same principle in my opinion applies to the election to the office of the President which has fallen vacant by operation of section 153 (11) of the Act. 14. The same principle in my opinion applies to the election to the office of the President which has fallen vacant by operation of section 153 (11) of the Act. 14. Though the learned Senior Advocate appearing for the first respondent contended that the Panchayat cannot function without a President and the office of the President which has fallen vacant should be filled up and reliance was placed on the provisions contained in section 153(1), 153(5) and 153(11) of the Act, I am of the opinion that the reasons which weighed with the appellate court when it requested the State Election Commission to defer the bye-election should apply with equal force to the election to the office of the President of the Panchayat as well. Section 153(5) of the Act relates only to the initial election of the President and not to the election to a vacancy in the office of the President, which has arisen later. Though sub-section (1) of section 153 of the Act stipulates that in every Panchayat there shall be a President, that stipulation cannot in my opinion be interpreted to mean that pending disposal of an appeal from an election petition which involves a member of the Panchayat who is also its President, the appellate court cannot stay the election to the office of the President which has fallen vacant as a result of the order in the election petition. The answer to the objection raised by the learned Senior Advocate appearing for the first respondent in my opinion, lies in section 156(2) of the Act which stipulates that when the office of the President is vacant, the Vice President shall exercise the functions of the President until a new President assumes office. In view of section 156(2) of the Act, as the Vice President of the Panchayat can exercise all the functions of the President and is also bound to exercise all such functions until a new President assumes office, I am of the opinion that the principles which governed the grant of an order staying the bye- election by the trial court should apply to any other office held by the petitioner as a member of the Panchayat. As otherwise, in the event of the appeal being allowed and the election petition being dismissed, the appellate court would not be in a position to set the clock back. As otherwise, in the event of the appeal being allowed and the election petition being dismissed, the appellate court would not be in a position to set the clock back. If an election to the office of the President which has arisen consequent on the trial court declaring the election of the petitioner to be void is held and another person is elected as the President, such election will not be subject to the outcome of the appeal. In the event of the petitioner succeeding in the appeal, she would not be able to assume office as the President. In such circumstances, I am of the considered opinion that Ext.P4 order passed by the appellate court, which has not been challenged by the first respondent herein (the petitioner in the election petition) or by the other parties to the appeal, should operate not only in respect of the bye-election to Ward No.17 but also the election to the office of the President of Ramapuram Grama Panchayat. 15. Though the learned Senior Counsel appearing for the first respondent and Sri.Devan Ramachandran, the learned counsel appearing for the interveners contended that the said order would run counter to the judgment of this Court in W.P.(C) No.26983 of 2012, on going through the judgment in the said writ petition, I am not persuaded to agree with them that the judgment of this Court in W.P.(C)No.26983 of 2012 would stand in the way of this Court from granting appropriate reliefs. The learned single Judge has not in the judgment delivered on 4.7.2013 in W.P.(C)No.26983 of 2012 directed that elections be held to the office of the President of Ramapuram Grama Panchayat, but had only taken note of the submission made by the parties that the District Court has clarified the interim order earlier granted making it clear that the petitioner cannot function as the President of the Grama Panchayat and that the State Election Commission has issued a notification dated 4.07.2013 notifying the election to the office of the President of Ramapuram Grama Panchayat. The question whether Ext.P4 order passed by the appellate court would govern the election to the office of the President of the Ramapuram Grama Panchayat did not arise for consideration in the said writ petition and was not decided. The question whether Ext.P4 order passed by the appellate court would govern the election to the office of the President of the Ramapuram Grama Panchayat did not arise for consideration in the said writ petition and was not decided. I accordingly hold that though no exception can be taken to Exts.P4 and P7 orders passed by the appellate court and the appellate court was right in declining to stay the operation of Ext.P2 order, the State Election Commission should await the decision of the appellate court before holding the bye-election to Ward No.17 of Ramapuram Grama Panchayat and also to the office of the President of Ramapuram Grama Panchayat. I accordingly dispose of the original petition with the following directions: i) The bye-election to Ward No.17 of Ramapuram Grama Panchayat pursuant to Ext.P2 order passed by the Court of the Munsiff of Pala on 8.11.2012 in O.P.(Election)No.4 of 2010 shall stand stayed until the disposal of A.S.No.265 of 2012 on the file of the Court of the Principal District Judge of Kottayam, subject to the terms and stipulations in Ext.P4 order passed by the Court of the District Judge of Kottayam in I.A.No.1672 of 2012 in A.S.No.265 of 2012. ii) Likewise, the steps taken by the State Election Commission to fill up vacancy in the office of the President of Ramapuram Grama Panchayat shall also stand stayed till the disposal of A.S.No.265 of 2012. iii) In view of the stipulation contained in the proviso to section 114(1) of the Act, the Court of the Principal District Judge of Kottayam is directed to dispose of A.S.No.265 of 2012, expeditiously and in any event within two months from today. Registry to communicate a copy of this judgment to the appellate court forthwith.