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2014 DIGILAW 1046 (KER)

Lisy Valsalan v. Kerala State Election Commission

2014-12-15

C.T.RAVIKUMAR

body2014
JUDGMENT : 1. The petitioner is the President of Keerampara Panchayat in Ernakulam District. The 2ndrespondent herein filed O.P.No.43 of 2012 before the Kerala State Election Commission (for short ‘the Commission) seeking to disqualify the petitioner from being a member in the said Panchayat on the allegations that she had committed financial irregularities and misused her power as President of the Panchayat and also caused loss to the Panchayat. The petitioner submitted Ext.P2 preliminary objection before the Commission to the effect that the said Original Petition is not maintainable before the Commission owing to its total lack of jurisdiction to entertain the same. Ext.P3 application to determine the said preliminary objection was also submitted before the Commission. Subsequently, the Commission passed Ext.P4 order dismissing the said application and this Writ Petition is filed seeking quashment of Ext.P4 by issuing a writ of certiorari or any other appropriate writ, order or direction. The further prayers are as follows:- “(ii) To issue a Writ of Prohibition restraining the State Election Commission from entertaining or further continuing with Exhibit P1 petition since it wholly lacks jurisdiction to do so. (iii) Alternatively to issue a Writ of Mandamus commanding the State Election Commission to determine the question of maintainability first and then only proceed with Exhibit P1 petition. (iv) To issue such other writs, orders or directions as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 2. I have heard the learned counsel appearing for the petitioner, the learned counsel for the second respondent and also the learned Standing Counsel for the Kerala State Election Commission. 3. The contention of the petitioner is that in terms of the provisions under Article 243F(2) of the Constitution of India the Commission could exercise powers to disqualify a person for being a member of a Panchayat only under an enactment made by the State Legislature and the only enactment made by the Kerala State Legislature in that regard is the Kerala Local Authorities (Prohibition of Defection) Act, 1999. It is further contended that the only other provision that empowers the Commission to disqualify a member of a local authority lies under S.36 of the Kerala Panchayat Raj Act (for short ‘the Act’) and the case which was registered and numbered as O.P.No.43 of 2012 has been filed under S.35(1)(o) of ‘the Act’ and that the said provision did not provide for making such an application. It is also contended that the question of determination of the loss, waste or misuse of a member of a Panchayat under S.35(1)(o) of ‘the Act’ is not a matter falling within the scope of power of the Commission. To lend support to the said contentions the petitioner relies on the decisions of this Court in Anil Kumar v. Kerala State Election Commission ( 2007 (2) KLT 303 ) and Marykkutty Mathew v. State Election Commission ( 2002 (3) KLT 773 ). A scanning of the pleadings in this Writ Petition would further reveal that essentially, the contention of the petitioner is that the power to decide and determine the loss, waste or misuse of a member of a local authority lies with the Ombudsman for Local Self Government Institutions and the Election Commission got no power to determine whether loss has occurred by the conduct of a member to the concerned Local Self Government Institution even for the purpose of disqualifying a member. 4. A perusal of the impugned Ext.P4 order would reveal that based on Ext.P2 preliminary objection filed by the petitioner herein the Commission identified three points for consideration as preliminary objections and they read as follows:- (1) The Election Commission is incompetent to disqualify a member of a local authority under S.35(1)(o) of the Kerala Panchayat Raj Act unless the Ombudsman for Local Self Government Institutions determines the loss, misuse or waste alleged to have been caused by the said member. (2) The 2ndrespondent, the petitioner in the Original Petition is not a member of Keerampara Grama Panchayat as she was disqualified from being a member of the Panchayat. (3) The Original Petition was filed beyond the period prescribed under R.4A(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000. 5. It is discernible from Ext.P4 order that the Election Commission has considered all the aforesaid points. (3) The Original Petition was filed beyond the period prescribed under R.4A(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000. 5. It is discernible from Ext.P4 order that the Election Commission has considered all the aforesaid points. The line of argument of the petitioner is that a final determination regarding the loss caused on account of the conduct of the member concerned by the competent forum namely, the Ombudsman for Local Self Government Institutions is a sine qua non for maintaining a petition seeking disqualification on the ground available under S.35(1)(o) of ‘the Act’. The question whether the Commission is empowered to determine such an issue viz., whether loss or misuse or waste is caused to the Panchayat to entail disqualification under S.35(1)(o) of ‘the Act’ is answered in the affirmative by a learned Single Judge of this Court in Unni.K.G. v. N. Abdul Rasheed and Another 2010 (1) KHC 176 ).The learned Senior Counsel appearing for the petitioner, however, contended that it is not a binding decision on that point. It is contended that the question whether the Election Commission could consider disqualification on the ground of causing loss by a member to a particular Panchayat under S.35(1)(o) was not actually an issue for consideration in that case and therefore, the decision on that point cannot be said to be the ratio decident of the said decision and it can only be an obiter dicta and as such it is not a binding precedent. The question called for consideration in the said case before this Court, according to the petitioner, was whether the Election Commission need to consider the maintainability of a petition regarding disqualification as a preliminary issue. To bring home the point that said decision is not having any precedential value the petitioner relies on the decisions of the Hon’ble Apex Court in Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, Meerut ( (1997) 1 SCC 203 ) and Krishena Kumar v. Union of India ( (1990) 4 SCC 207 ). The decision in Mittal Engineering Works (P) Ltd.’scase (supra) was cited to canvass the point that a decision is only an authority for what it actually decides and in other words, a judgment cannot be held as precedent on a proposition which it did not decide. The decision in Mittal Engineering Works (P) Ltd.’scase (supra) was cited to canvass the point that a decision is only an authority for what it actually decides and in other words, a judgment cannot be held as precedent on a proposition which it did not decide. The decision in Krishena Kumar’scase (supra) was relied on to fortify the same point besides to explain the test for ascertaining the ratio decident of a decision. I will deal with the said contentions later, in case it is found necessary to do so. The learned Standing Counsel for the Commission submitted that the said issues were pointedly raised and considered in W.P.(C) Nos.11637 & 11860 of 2008 and in W.P.(C) No.2976 of 2010 by another learned Judge of this Court. I have heard the learned counsel on both sides in this regard. In the said Writ Petitions essentially, the petitioners therein contended that in the absence of an audit and finalisation of loss in terms of S.215 of the Kerala Panchayat Raj Act proceedings against a member under S.35(1)(o) of ‘the Act’ would be premature and unwarranted. That apart, it was contended that a perusal of the provisions under Ss.271J and 271K of ‘the Act’ would reveal that the functions and powers in respect of any irregularity involving loss or waste or misuse of the fund of a Local Self Government Institution vest with the Ombudsman for Local Self Government Institutions. A careful perusal of those judgments would reveal that the petitioners therein also canvassed the position that a petition for disqualifying a member of a local authority based on a plea under S.35(1)(o) of ‘the Act’ would be premature in the absence of an audit report giving finality to a proceeding under S.215 of ‘the Act’, finding loss or misuse to the concerned Panchayat by the conduct of the member concerned and also that the power to fix such loss or waste or misuse vests with the Ombudsman for Local Self Government Institutions. Evidently, the said contention was repelled by this Court as per the judgment dated 30.1.2010 in W.P.(C) No.2976 of 2010 while dismissing the Writ Petition filed against the order of the Commission and it was held therein thus:- “The last contention was with reference to S.215 of the Kerala Panchayat Raj Act. S.215 provides for accounts and audit. Evidently, the said contention was repelled by this Court as per the judgment dated 30.1.2010 in W.P.(C) No.2976 of 2010 while dismissing the Writ Petition filed against the order of the Commission and it was held therein thus:- “The last contention was with reference to S.215 of the Kerala Panchayat Raj Act. S.215 provides for accounts and audit. Sub-s.(11) provides that an aggrieved person, may make an application to the District Court. Sub-s.(13 ) provides that appeal against the order of the District Court will lie to the High Court. Learned counsel contended that unless in an audit as contemplated in S.215 is held and that the audit report has attained finality, no proceedings under S.35(o) will lie against a member. On a reading of S.35, I am not able to infer such a conclusion. Section 35(o) only provides for subject to the provisions of S.36, a member shall cease to hold office if he is liable for the loss caused to the Panchayat. Therefore, on an application made under S.36, if the petitioner is able to substantiate his case that a member has caused loss to the Panchayat, the Election Commission is perfectly within its rights to entertain a plea under S.35(o) of the Act. I also notice that under S.34 providing for disqualification of candidates, Sub-s.(p) requires that a person should have been found liable for loss to suffer disqualification as provided therein. Therefore, the terminologies in Ss.34 and 35 being different, and in view of the only requirement of loss caused to the Panchayat as provided under S.35(o), I am not in a position to accept this plea either.” (emphasis added) The said decision would also reveal that for the same reasons the learned Judge rejected the contention that realisation of loss and fixation of liability are the functions of the Ombudsman for Local Self Government Institutions, and therefore, unless in a proceedings before the Ombudsman, the liability was fixed, proceedings could not be initiated under S.36 of ‘the Act’. Paragraph 8 of the common judgment in W.P.(C) Nos.11637 & 11860 of 2008 reads thus:- “I am also not impressed on the contention of the learned senior counsel appearing for the petitioners that realisation of loss and fixation of liability are the functions of the Ombudsman for Local Self Government Institutions, and therefore, unless in a proceedings before the Ombudsman, the liability is fixed, proceedings cannot be initiated under S.36 of the Act. In my view, the reason which I assigned for rejecting the contention relying on S.215 is an answer to this contention also.” 6. The judgment in W.P.(C)No.2976 of 2010 was relied on by the same learned Judge to dismiss W.P.(C)Nos.11637 and 11860 of 2008. Evidently, a perusal of those judgments dated 31.1.2010 and 8.3.2010 would reveal that those Writ Petitions covered by those judgments were filed against the orders of the Commission holding the concerned petitioners as disqualified based on plea under S.35(o) of the Kerala Panchayat Raj Act. In W.P.(C)No.2976 of 2010 the allegation against the petitioner raised before the Commission was that as a member of Parassala Grama Panchayat she received travelling allowance on 26 days during the period from 4.1.2006 to 20.1.2007 and at the same time marked her attendance in the Anganvadi and she was present in the Anganvadi on all those days. The further allegation was that she did nothing to claim Travelling Allowance and as a result, the Panchayat suffered a loss to the tune of `6,600/-. In W.P.(C)No.11637 of 2008 the allegation raised before the Commission was that the petitioner received sitting fee for having attended the meetings of the Panchayat on 13.2.2006 and 15.3.2006 and also Travelling Allowance on those days on the ground that he had undertaken travelling in his official capacity. In W.P.(C)No.11860 of 2008 also allegation of the same nature was raised before the Commission. The only difference was that such acts were allegedly committed in that case on 31.5.2006 and 12.6.2006. The Commission in all those cases found the respective petitioners as disqualified based on plea under S.35(o) of the Kerala Panchayat Raj Act. After holding the legal questions mentioned hereinbefore as aforesaid the learned Single Judge confirmed the orders of the Commission in all those cases as per judgment dated 31.1.2010 in W.P. (C) No.2976 of 2010 and as per common judgment dated 8.3.2010 in W.P.(C)Nos.11637 and 11860 of 2008. After holding the legal questions mentioned hereinbefore as aforesaid the learned Single Judge confirmed the orders of the Commission in all those cases as per judgment dated 31.1.2010 in W.P. (C) No.2976 of 2010 and as per common judgment dated 8.3.2010 in W.P.(C)Nos.11637 and 11860 of 2008. The judgment in W.P.(C) No.2976 of 2010 was taken up in appeal as W.A.No.248 of 2010 and the common judgment in W.P.(C)Nos.11637 and 11860 of 2008 was taken up in appeal as W.A.No.482 of 2010. Both the Writ Appeals filed against those judgments were allowed. A careful scanning of the judgments of the Division Bench in W.A.Nos.248 of 2010 and 482 of 2010 arising from aforesaid Writ Petitions would reveal that the judgments of the learned Single Judge confirming the orders of the Election Commission were set aside not on the ground of incompetency of the Commission to consider the question whether the concerned petitioners incurred disqualification based on plea under S.35(o) of ‘the Act’ invoking the powers under S.36 of ‘the Act’ and on the contrary, the interference was solely on the ground that the concerned complainant had failed to produce evidence to establish the allegations against the concerned member and the Election Commission has also failed to collect the evidence. In other words, the findings of the learned Single Judge on the question of jurisdiction and the competence of the Election Commission to consider the question whether the concerned member incurred disqualification based on plea under S.35(o) were not actually interfered with. The said fact is evident from a bare perusal of the judgments of the Division Bench in the aforesaid appeals. Paragraphs 6 and 7 of the judgment in W.A.No.482 of 2010 are relevant in this context and they read thus:- “6. After hearing both sides and after going through the impugned order of the Election Commission and the judgment of the learned Single Judge, we do not find, the findings of the Election Commission sustained by the learned Single Judge is tenable, because the complainant did not venture to prove with any evidence that appellant, without visiting the above offices, have claimed travelling allowance causing loss to the Panchayat. 7. 7. In the first place, we feel the complainant or Election Commission could have taken evidence from the Officers whom the appellant is said to have visited and verified whether the appellant in fact had visited and represented the Panchayat for any matter before them. No evidence was produced or attempted to be collected either by the complainant or by the Election Commission to disprove appellant’s claim. Disqualification of a member for any reason whatsoever has serious consequences and is obviously penal in nature. We are of the view that unless there is sufficient evidence to prove the loss caused to the Panchayat, which in this case arise only if the appellant’s claim of official travel is bogus, the appellant cannot be said to have acquired any disqualification warranting his removal from membership. Since the findings are based on only surmises and conjectures, we are unable to sustain the impugned judgment of the learned Single Judge upholding the order of the Election Commissioner.” (emphasis added) 7. A perusal of the judgment of the Division Bench in W.A.No.248 of 2010 also would reveal that the Division Bench interfered with the judgment of the learned Single Judge confirming the findings of the Election Commission on similar reasons. It was found by the Division Bench that the Election Commission collected no evidence to record findings against the concerned member and the concerned complainant also did not adduce evidence in that regard and therefore, the Division Bench expressed the view that the orders of the Election Commission disqualifying the appellants were passed based on surmises and presumption. In such circumstances, a bare perusal of the aforesaid judgments by the Division Bench would reveal that the findings of the learned Single Judge regarding the competency of the Election Commission to consider whether a member is disqualified based on a plea of causing loss or misuse under S.35(o) of ‘the Act’ were not at all interfered with. It was only the total lack of evidence and virtually the absence of a proper venture to collect the evidence for arriving at a decision on the disputes by the Election Commission and the failure on the part of the concerned complainant to prove the allegation in the complaint against the concerned member that constrained the Division Bench to interfere with the decisions of the learned Single Judge confirming the findings of the Election Commission. If the Division Bench was holding the view that the Election Commission could not have gone into such questions, rather, lacks jurisdiction to go into such questions it would not have held that the Election Commission could have collected evidence from officers whom the appellant, the defected member, said to have visited and could have verified whether the appellant, in fact, visited and represented the Panchayat in any matter before them. The Division Bench went on to hold: “Since the findings are based on only surmises and conjectures, we are unable to sustain the impugned judgment of the learned Single Judge upholding the order of the Election Commission.” The learned Senior Counsel appearing for the petitioner contended that since the Division Bench set aside all the aforesaid judgments viz., (W.P.(C)No. 2976 of 2010, W.P.(C)Nos.11637 and 11860 of 2010) of the learned Single Judge, in the eye of law, they are not available to be treated as precedents. The said contention cannot be said to be without any force. But, at the same time, the contention that they are not available as precedents cannot and will not disable or disempower this Court from looking at those conclusions arrived at by the learned Single Judge on the question of competency of the Election Commission for determination of disqualification based on plea under S.35(1)(o) of ‘the Act’ and also on the requirement or otherwise of an order finalising the auditor of the Ombudsman for Local Self Government Institutions, as a pre-condition for maintaining a petition carrying a dispute regarding the question whether a member has become disqualified on the grounds under S.35(1)(o) of the Act. As noticed hereinbefore, the conclusions arrived at by the learned Single Judge on those points were not virtually vacated by the Division Bench. That apart, the Division Bench too, proceeded with the Writ Appeals directed against those judgments, evidently, holding the very same view in respect of those matters as otherwise, the conclusions and observations, as extracted hereinbefore, would not have been made by the Division Bench. The findings and conclusions of the learned Single Judge in Unni’s case (supra) also on the same lines, as is evident from a closer scrutiny. The findings and conclusions of the learned Single Judge in Unni’s case (supra) also on the same lines, as is evident from a closer scrutiny. In this context, it is also to be noted that there is no inviolable position that ‘obiter dicta’ cannot be taken into consideration while deciding a similar point or same point though they would not have any binding effect. Even while holding such a view, in the light of the nature of contentions raised against those decisions, I think it only appropriate to have an independent consideration of those points. It is only proper and profitable to refer to Ss.34(1)(p), 35(1)(o) and 36 of ‘the Act’ while making such consideration. “34. Disqualification of candidates.-(1) A person shall be disqualified for being chosen as and for being a member of a Panchayat at any level, if he- .......................................................................................................................................... (p) has been found liable for loss, waste or misuse of money or other property of the Panchayat by the Ombudsman. 35.Disqualifications of members-(1) Subject to the provisions of Section 36 or Section 102, a member shall cease to hold office as such, if he- …………………………………………………… (o) is liable, for the loss, waste or misuse caused to the Panchayat. 36. Determination of subsequent disqualification of a member:-(1) Whenever a question arises as to whether a member has become disqualified under Section 30 or Section 35 except clause (n) thereof after having been elected as a member, any member of the Panchayat concerned or any other person entitled to vote at the election in which the member was elected, may file a petition before the State Election Commission, for decision. Provided that, the Secretary or the Officer authorised by the Government in this behalf may refer such a question to the State Election Commission for decisions. (2) The State Election Commission, after making such enquiry as it considers necessary in the petition referred to in or the reference made thereunder in sub-section (1) whether so however that the State Election Commission may pass an interim order as to whether a member may continue in office or not till a decision is taken on the petition or the matter involved in the reference. (3) A petition or reference referred to in sub-section(1) shall be disposed of in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when trying a suit.” (emphasis added) 8. A bare perusal of the above extracted provisions would reveal that S.34 deals with disqualification of candidates, S.35 deals with disqualification of members and S.36 deals with determination of subsequent disqualification of members. Going by S.34(1)(p) a person shall be disqualified for being chosen and for being a member of a Panchayat at any level if he has been found liable for loss, waste or misuse of money or other property of the Panchayat by the Ombudsman. This section thus undoubtedly envisages existence of a decision by the Ombudsman for Local Self Government Institutions fixing liability on a person for the loss, waste or misuse of money or other property of the Panchayat and evidently, such a finding already entered by the Ombudsman would incur a disqualification for the very candidature of the concerned person. On the other hand, S.35(1) deals with situations in which a member should cease to hold office as such and a bare perusal of the said section would reveal that it is subject to the determination of subsequent disqualification of the member concerned by the State Election Commission under S.36 of ‘the Act’ or declaration of an election of the member concerned to be void by a court under S.102 of ‘the Act’. A bare perusal of S.35 would reveal that the disqualification incurred by virtue of the different clauses under S.35 would cease his eligibility to hold office as such. In other words, the disqualification incurred by cessation of office on account of a ground referable to any of the clauses under S.35(1) of ‘the Act’ is co-terminus of the terms of office of the committee of which the person who incurred disqualification was a member. But, at the same time, by virtue of operation of S.34(1) (p) of ‘the Act’, if the ground for disqualification is one which falls under S.35(1)(o) necessarily it would attract the disqualification for being a candidate, at a later point of time. But, at the same time, by virtue of operation of S.34(1) (p) of ‘the Act’, if the ground for disqualification is one which falls under S.35(1)(o) necessarily it would attract the disqualification for being a candidate, at a later point of time. Now, coming to S.36 of ‘the Act’ it provides for determination of subsequent disqualification of a member under S.30 or 35 except clause (n) thereof after having been elected as a member on a petition by the State Election Commission. A scanning of the said provision would reveal that whenever such a question arises as to whether a member has become disqualified under any of those sections, after having been elected as a member, a petition could be filed before the State Election Commission. The proviso thereunder would reveal that such a question could also be referred by the Secretary of the said Panchayat or the officer authorised by the Government in that behalf for the decision of the State Election Commission. The only provision under S.35 of ‘the Act’ that was taken out of the purview of S.36 of ‘the Act’ and thereby, out of the jurisdiction of the Election Commission in the matter of invocation of power available under S.36 is clause (n) thereof. A bare perusal of S.36 itself would reveal the said position. That apart, there is nothing in S.36 of ‘the Act’ and in that context anywhere in ‘the Act’ which would indicate that for assuming jurisdiction under S.36 of ‘the Act’ to determine the subsequent disqualification of a member on the ground or grounds referable to S.35(1)(o) of ‘the Act’ the liability must have been fixed in a proceeding by the Ombudsman for Local Self Government Institutions. On the contrary, the Scheme of the Act would reveal that the dispute regarding the question whether a member has become disqualified under S.35 except under clause (n) thereof, after having been elected as a member, either on a petition or on a reference by the Secretary of the concerned Panchayat or the Officer authorised by the Government in that behalf, shall be decided exclusively by the State Election Commission. That power is not vested in any authority or court and lies only with the State Election Commission. That power is not vested in any authority or court and lies only with the State Election Commission. This fact is very much evident from S.36 itself and also from the absence of any other provision in ‘the Act’ clothing any other authority with the same power as has been available to the Election Commission under S.36 of ‘the Act’. True that a reading of the provisions under Ss.271J and 271K of ‘the Act’ would reveal the functions and powers of the Ombudsman for Local Self Government Institutions and they would also show that fixation of liability on a member of a local authority for the loss, waste or misuse and realisation of the loss fall within such functions and powers of the Ombudsman. The said provisions, in so far as they are relevant in this context read thus:- “271J. Functions of the Ombudsman.-(1) The Ombudsman shall perform all or any of the following functions, namely:- (i) investigate into any allegation contained in a complaint or on a reference from Government, or that has come to the notice of the Ombudsman.; (ii) enquire into any complaint in which corruption or maladministration of a public servant or a Local Self Government Institution is alleged.; (iii) pass an order on the allegation in the following manner, namely:- (a) where the irregularity involves a criminal offence committed by a public servant, the matter shall be referred to the appropriate authority for investigation. (b) where the irregularity causes loss or inconvenience to a citizen, direct the Local Self Government Institution to give him compensation and to reimburse the loss from the person responsible for the irregularity; (c) where the irregularity involves loss or waste or misuse of the fund of the Local Self Government Institution, realise such loss from those who are responsible for such irregularity, and (d) where the irregularity is due to omission or inaction cause to supply the omission and to rectify the mistake. (2) In addition to the functions enumerated in sub-section (1), the Ombudsman may pass interim order restraining the Local Self Government Institution from doing anything detrimental to the interest of the complainant if it is satisfied that much loss or injury will be caused to the complainant due to the alleged act. (2) In addition to the functions enumerated in sub-section (1), the Ombudsman may pass interim order restraining the Local Self Government Institution from doing anything detrimental to the interest of the complainant if it is satisfied that much loss or injury will be caused to the complainant due to the alleged act. (3) The Ombudsman may by order, impose penalty in addition to compensation if it is of opinion that the irregularity involves corrupt practice for personal gain. 271K .Powers of the Ombudsman.- (1) The Ombudsman shall, for the purpose of any investigation or enquiry under this Act, have the same powers as are vested in a Civil Court while trying a suit under the Code of Civil Procedure, 1908 (Central Act V of 1908) in respect of the following matters, namely:- (a) summoning and enforcing the attendance of any witness and examining him; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public records, or copy thereof from any Court or Office; (e) issuing commissions for the examination of witness; (f) such other powers as are prescribed.; (2) Where the Ombudsman finds that the allegation contained in a complaint is without any substance or trivial in nature it may by order direct the complainant to pay to the opposite party so much of the amount specified in the order by way of cost. (3) Where the allegation contained in a complaint is about the loss or waste or misapplication of the fund of the Local Self Government Institution or in respect of the loss or misconvenience caused to a citizen, the Ombudsman may, during enquiry, collect evidence, determine the loss and direct in its order the amount to be realised from the person responsible. (4) If the amount paid as per the order passed by the Ombudsman under sub-section (2) or sub-section (3) is not paid within the period specified by it, the same shall be recoverable by Revenue Recovery Proceedings as if it were an arrears of land revenue.” A scanning of the said provisions would undoubtedly reveal the position that the purpose and scope of provisions under Ss.271J and 271K of ‘the Act’ is different from the purpose of S.36 of ‘the Act’. The fixation of such liability for realisation of loss certainly lies with the Ombudsman and it is only for that purpose and they would not empower the Ombudsman to determine the dispute regarding the disqualification of a member under S.35(1)(o) of ‘the Act’ after he/she got elected as a member. The provisions operate on different and distinct fields and the Ombudsman is not empowered to determine the dispute regarding the disqualification incurred owing to the grounds under S.35(1)(o) of ‘the Act’. The power to disqualify a member on grounds referable to S.35(1)(o) is available only under S.36 of ‘the Act’ and conspicuously it is absent under Ss.271J or 271K of ‘the Act’. It is true that once the Ombudsman fixes such liability for the loss on grounds of loss, waste or misuse of money or such a fixation was made against a member under S.215 of ‘the Act’, it would incur a disqualification on him/her for being a candidate for being chosen as and for being a member of a Panchayat at any level, by virtue of operation of S.34(1)(p) of ‘the Act’. The decision of this Court in Marykutty Mathew’s case (supra) laid down the law, in the light of the provisions under Art.243-O of the Constitution of India. Clause (b) of Art.243-O reads thus:- “243-O. Bar to interference by courts in electoral matters.- Notwithstanding anything in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243K, shall not be called in question in any court; (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any Law made by the Legislature of a State.” Thus, the position is clear that in view of Clause (b) of Art.243-O of the Constitution of India an election to the Panchayat can be questioned only by way of an election petition as provided under the Kerala Panchayat Raj Act. Taking note of this position, evidently, this Court considered the scope of power under S.36 of the Kerala Panchayat Raj Act and held that the jurisdiction of the State Election Commission is confined to disqualification incurred after by a member concerned after having been elected as a member. Taking note of this position, evidently, this Court considered the scope of power under S.36 of the Kerala Panchayat Raj Act and held that the jurisdiction of the State Election Commission is confined to disqualification incurred after by a member concerned after having been elected as a member. In other words, the power under S.36 is available only to determine a post election disqualification and as held by this Court in Marykutty Mathew’scase (supra) even in cases where a disqualification is already incurred by a person before the election and it continues even after his election it would not empower the Commission to determine the question of disqualification under S.36 of ‘the Act’. In short, the State Election Commission has no jurisdiction to entertain a petition with regard to a disqualification incurred by a member either under S.30 or 35 of ‘the Act’ prior to the election. In this case, evidently, the second respondent raised the contention that the petitioner has become disqualified on grounds under S.35(1)(o) of ‘the Act’ and therefore, in the light of the provisions under S.36 of ‘the Act’ determination of such a dispute squarely falls within the jurisdiction of the State Election Commission. In the said circumstances, I do not find any reason to hold that the Commission has faulted in its finding with respect to its jurisdiction in considering the question of disqualification of a member based on a plea under S.35(1)(o) of the Act, in a dispute raised in that behalf either through a competent petition or reference. 9. The next question which was considered by the Commission was that whether the second respondent got locus standi to file the said Original Petition. Section 35 of ‘the Act’ provides the circumstances under which a member of a Panchayat ceases to hold office. Section 35(1)(o) is one among such situations and going by the same a member shall cease to hold office as such, if he is liable for the loss, waste or misuse caused to the Panchayat. Section 35 of ‘the Act’ provides the circumstances under which a member of a Panchayat ceases to hold office. Section 35(1)(o) is one among such situations and going by the same a member shall cease to hold office as such, if he is liable for the loss, waste or misuse caused to the Panchayat. Section 36 would come into play when a question arises as to whether a member has become disqualified under any of the clauses under S.30 or 35 except clause (n) thereof, after having been elected as a member and a decision on such a dispute, either on a petition by any member of the Panchayat or by any other person entitled to vote at the election in which the member concerned was elected or on a reference of such a question by the Secretary or the officer authorised by the Government in that behalf, shall be taken by the State Election Commission and the provisions under S.36 would reveal that the jurisdiction is exclusively lies with the State Election Commission. The decision of a Division Bench of this Court in Anilkumar’scase (supra) considered the question whether a voter could invoke S.36(1) calling upon the State Election Commission to decide as to whether a member has become disqualified under S.35(1)(k) of the Act when that member has become disqualified and that order has attained finality so far as that member is concerned and held that when once a member has become disqualified under S.35(1)(k) and that order has attained finality so far as that member is concerned, invocation of power under S.36(1) calling upon the Election Commission by a person entitled to vote at the election in which the member concerned was elected, is impermissible in the light of the said decision. The said decision was evidently, rendered with reference to S.37 of ‘the Act’ as well. Obviously, such contentions are not available in this case. In fact, the very case of the petitioner is that fixation of liability referable to grounds available under S.35 (1)(o) by the Ombudsman is a pre-condition for maintaining a petition before the Election Commission. I have already considered and rejected the said contention. Indisputably, the 2ndrespondent is a member of the Panchayat in which the petitioner was also elected as a member. I have already considered and rejected the said contention. Indisputably, the 2ndrespondent is a member of the Panchayat in which the petitioner was also elected as a member. In the said circumstances, going by the provisions under S.36 of ‘the Act’ the 2ndrespondent could invoke the power thereunder to seek a decision from the Election Commission. Still, the petitioner raises the question of the 2ndrespondent’s locus standi based on his disqualification for being a member of the Panchayat. The Election Commission held that the question of locus standi is to be determined with reference to the time of filing of such a petition. If a member was having locus standi to file such a petition at the time when such a petition was filed, his/her subsequent disqualification would not render the petition already filed infructuous or unworthy for consideration, in accordance with law. In other words, despite such disqualification incurred by the concerned complainant the Commission has to consider the question in accordance with law if such a petition was moved when the concerned complainant was competent to file such a petition. No materials have been furnished before this Court to show that the second respondent (the petitioner before the Commission) incurred disqualification and ceased to be a member of the Panchayat prior to the filing of the O.P. True that, the petitioner asserts in Ext.P3 that the second respondent became disqualified to be a member as on 8.5.2012. But, the details as to the proceedings in which the second respondent was thus disqualified are not produced before this Court though it is evident from Ext.P1 that it was filed on 6.6.2012. At the same time, the reference in Ext.P3 as also in the impugned order would reveal that as against the proceedings whereby the second respondent was disqualified the matter was taken up before the High Court and it is pending. In such circumstances, I am of the view that the order of the Election Commission calls for no interference based on the contention of the petitioner that owing to the disqualification of the second respondent Ext.P1 petition became not maintainable. Therefore, I do not find any irregularity in the conclusion arrived at by the Commission rejecting the said contention raised by the petitioner. 10. Therefore, I do not find any irregularity in the conclusion arrived at by the Commission rejecting the said contention raised by the petitioner. 10. The third objection raised by the petitioner before the Commission was that Ext.P1 application is time barred in view of the provisions under R.4A(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (for short ‘the Rules’). A bare perusal of R.4A(2) of ‘the Rules’ and the provisions under Ss.35(1)(o) and 36 of ‘the Act’ would reveal untenability of the said contention. R.4A(2) of ‘the Rules’ prescribes the time limit for filing a petition under S.4(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999. A perusal of the same would reveal that it prescribes such a time limit only in respect of petitions under S.4(1) of the Kerala Local Authorities (Prohibition of Defection) Act. It is to be noted that, ‘the Rules’ have been framed in exercise of the powers conferred by sub-s.(1) of S.7 of the Kerala Local Authorities (Prohibition of Defection) Act. Section 7 of the said Act reads thus:- “7. Power of the Government to make rules.- (1) The Government may, by notification in the Gazette and in consultation with the State Election Commission, make rules, either prospectively or retrospectively for carrying out all or any of the provisions of this Act. Section 7 of the said Act reads thus:- “7. Power of the Government to make rules.- (1) The Government may, by notification in the Gazette and in consultation with the State Election Commission, make rules, either prospectively or retrospectively for carrying out all or any of the provisions of this Act. (2) Every rule made under this Act shall be laid, as soon as may be after it is made, before the Legislative Assembly while it is in session, for a total period of 4 days which may be comprised in one session or in two successive session, and if, before the expiry of the session in which it is so laid, or the sessions immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall, thereafter, have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.” (emphasis added) The expression used in S.7 is ‘for carrying out all or any of the provisions of this Act’ and therefore, it could only be said that S.7 empowers making of rules either prospectively or retrospectively for carrying out of the said Act namely Kerala Local Authorities (Prohibition of Defection) Act, 1999. A conjoint reading of S.4(1) and S.3(1)(a) of the said Act would reveal that a member of a local authority would incur disqualification on the ground of defection by voluntarily giving up his membership of such political party or by voting or abstain from voting contrary to any direction-in-writing issued by such political party to which he belongs or by a person or authority authorised by it in that behalf. Since Rules have been enacted in exercise of the powers conferred by sub-s.(1) of S.7 of the aforesaid Act the provisions under R.4A(1) of ‘the Rules’ could only be applied in the case of a petition filed under S.4(1) of that Act for seeking disqualification of a member on the ground of defection and in case of petitions filed under any other Act. Section 35(1)(o) of ‘the Act’ referred to hereinbefore would undoubtedly reveal that it is totally unrelated to the ground of defection. Section 35(1)(o) of ‘the Act’ referred to hereinbefore would undoubtedly reveal that it is totally unrelated to the ground of defection. The petition in question is not one filed under any of the provisions of the Kerala Local Authorities (Prohibition of Defection) Act whilst, admittedly, it is filed under the provisions of the Kerala Panchayat Raj Act, 1994. In a petition calling for a decision as to whether a member of a local authority has become disqualified on any ground/grounds referable to S.30 or S.35 except under Clause (n) of S.35 of ‘the Act’, in the light of S.36 of ‘the Act’, the power to decide such a dispute vests with the Election Commission. A perusal of the provisions under Ss.35 and 36 would reveal that no time limit has been prescribed for filing such a petition. The petitioner has not brought to my notice any other provisions under the Kerala Panchayat Raj Act which prescribes the time limit for filing a petition having the nature of Ext.P1. In such circumstances, the finding of the Commission that Ext.P1 petition is not barred by limitation cannot be said to be illegal and inviting interference. At the time of argument the learned counsel for the petitioner took up another contention that since the second respondent had not mentioned S.36 of ‘the Act’ in Ext.P1 and referred only S.35(o) of the Act, the said petition is liable to be dismissed. It is contended that S.35 does not provide for making of a petition or an application for disqualification and for disqualifying a person under S.35(o) of ‘the Act’ a provision for making a petition seeking disqualification before the State Election Commission is available only under S.36. The contention is that non-mentioning of S.36 in Ext.P1 is fatal and therefore, Ext.P1 is liable to be dismissed. I have already referred to Ss.35 and 36 of ‘the Act’. In the context of the contention it is also relevant to refer to the prayer portion of Ext.P1 and it reads thus:- XXXXX A perusal of the said prayer portion in Ext.P1 would undoubtedly reveal that the second respondent invokes the power of the Election Commission under S.36 alleging that the petitioner herein has incurred disqualification referable to a ground available under S.35(1)(o) of ‘the Act’. A bare perusal of Exts.P2 and P3 preliminary objections filed by the petitioner herein before the Commission would reveal that this question was not pointedly raised by the petitioner before the Commission and in fact, it is raised for the first time before this Court. It is to be noted that Ext.P1 is not an election petition. It is only a petition calling for determination on the dispute whether the petitioner has become disqualified on a ground under S.35(1)(o) of ‘the Act’. In the light of S.36 of ‘the Act’ and in view of the decisions referred hereinbefore, it is evident that the Election Commission is competent to consider such a question even in the absence of a final determination of the loss by the Ombudsman for Local Self Government Institutions. Therefore, the said ground is also not available to the petitioner to challenge Ext.P4 order before this Court. In the light of the discussions as above this Writ Petition is liable to fail and accordingly, it is dismissed.