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2019 DIGILAW 19 (KER)

P. Bharathan v. State Election Commission

2019-01-09

SHAJI P.CHALY

body2019
JUDGMENT : 1. The captioned writ petitions are materially connected in respect of Ext.P10 order passed by the State Election Commission on the resignation tendered by the petitioner in W.P.(C) No.29145 of 2018, invoking the powers conferred under Sec.155 of the Kerala Panchayat Raj Act, 1994 (for brevity, 'the Act, 1994'), read along with the provisions of the Kerala Panchayat Raj (Resignation of President, Vice President or Members) Rules, 2000 (for brevity, 'the Rules, 2000'), holding that the said petitioner has resigned, not only from the post of President of the Grama Panchayat but also the membership. It is thus challenging Ext.P10 order passed by the State Election Commission, the said writ petition is filed. Since the fate of the other writ petitions will be guided by the decision in W.P. (C) No.29145 of 2018, the pleadings and the documents in the said writ petition are relied upon. Material facts for the disposal of the writ petition are as follows: 2. Petitioner was elected as a member of the 3rd respondent Grama Panchayat and later elected as the President of the Panchayat. According to the petitioner, he had resigned from the post of President due to personal reasons, on 04.07.2018. The Secretary of the 3rd respondent Panchayat thereupon, issued Ext.P1 acknowledgement as provided under law, and forwarded the factum of resignation from the post of President, as per Ext.P2, to the State Election Commission. The Secretary of the Panchayat has also convened an urgent meeting of the Panchayat Committee to report the resignation of the petitioner from the post of President. The meeting was held on 06.07.2018, recording the factum of the resignation from the post of President. It is thereafter on 11.07.2018, a clarification was sought by the Secretary on the basis of the telephonic instruction from the office of the 1st respondent. It was replied on 12.07.2018, as per Ext.P5. It is thereafter news has spread that the petitioner had resigned not only from the post of the President but also the membership in the Panchayat Committee, which, according to the petitioner, is not correct. 3. Petitioner thereafter appeared before the Election Commission and gave a statement on 16.07.2018. On the very same day, the 2nd respondent who is a member of the Muttil Grama Panchayat has also given a complaint. 3. Petitioner thereafter appeared before the Election Commission and gave a statement on 16.07.2018. On the very same day, the 2nd respondent who is a member of the Muttil Grama Panchayat has also given a complaint. According to the petitioner, based on the said complaint, 1st respondent issued an order declaring that the petitioner had resigned from the post of Panchayat member as well, which, according to the petitioner, has no legal basis. 4. A detailed counter affidavit is filed by the 2nd respondent, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, petitioner has resigned from the membership as well as the post of President of the 3rd respondent Panchayat by tendering his resignation to the Secretary on 04.07.2018, in the prescribed form appended to the Rules, 2000. The said resignation has come into effect when his resignation was accepted by the Secretary of the Panchayat. However, the Secretary has in his letter dated 04.07.2018 issued to the 1st respondent stated that the petitioner has resigned only from the post of President of the Panchayat, which act of the Secretary is arbitrary and illegal. Petitioner has ceased to be a member of the 3rd respondent Panchayat on 04.07.2018 itself, since he has tendered his resignation from the membership also of the 3rd respondent Panchayat, and as per the Rules specified above, the resignation came into effect on the same date on which the resignation was accepted by the Secretary. The Secretary has also in the minutes drawn in the meeting conducted on 06.07.2018 recorded that the petitioner has resigned from the post of President of the Panchayat. However, it was orally informed by the Secretary in the said meeting that the petitioner has tendered his resignation from the membership of the Panchayat as well. Thereupon, 2nd respondent as per his letter dated 11.07.2018 issued to the Secretary pointed out the omission regarding recording of the resignation of the petitioner from the membership of the Panchayat and has requested the Secretary to include that also in the minutes dated 06.07.2018. The 2nd respondent has also sent a letter dated 13.07.2018 to the 1st respondent State Election Commission, requesting to implement the resignation of the petitioner from the membership as well as from the post of President of the 3rd respondent Panchayat. 5. The 2nd respondent has also sent a letter dated 13.07.2018 to the 1st respondent State Election Commission, requesting to implement the resignation of the petitioner from the membership as well as from the post of President of the 3rd respondent Panchayat. 5. A no confidence motion was proposed against the Vice President of the Panchayat on 24.07.2018 and the Presidential election was scheduled to be held on 28.07.2018. Since the petitioner has already ceased to be a member of the 3rd respondent Panchayat, he was not entitled to participate in the no confidence motion against the Vice President of the Panchayat or to participate in the presidential election to be conducted in the Panchayat. It is to be noted, on a clarification sought by the Panchayat, the 1st respondent has issued a communication dated 21.07.2018, informing that the petitioner is entitled to continue as a member till the issue is finally adjudicated. It was thereupon that 2nd respondent preferred W.P.(C) No.24682 of 2018 before this Court, challenging the said communication. In the said writ petition, among other reliefs, 2nd respondent has sought for a relief of writ of mandamus, directing the respondents to restrain the petitioner from participating in any of the meeting to be conducted in the 3rd respondent Panchayat including the no confidence motion to be conducted against the Vice President of the Panchayat on 24.07.2018 and the President election to be conducted in the Panchayat on 28.07.2018. 6. In W.P.(C) No.24682 of 2018, this Court passed an interim order dated 23.07.2018, wherein it was made clear that, no confidence motion proposed to be conducted in the Panchayat on 24.07.2018 as well as the Presidential election which is to take place on 28.07.2018 will be subject to the result of the writ petition. The Presidential election to the Panchayat was held on 28.07.2018 and the 2nd respondent was one of the contestants to the post of President of the Panchayat. One C.K. Balakrishnan was the other contestant to the said post and in the said election, C.K. Balakrishnan won the election to the post of President on the majority of a single vote made by the petitioner. 7. One C.K. Balakrishnan was the other contestant to the said post and in the said election, C.K. Balakrishnan won the election to the post of President on the majority of a single vote made by the petitioner. 7. Thereupon, W.P.(C) No.29228 of 2018 is filed seeking to declare that the presidential election held in the 3rd respondent Panchayat on 28.07.2018 and the election of C.K. Balakrishnan as President of the 3rd respondent Panchayat on the strength of a single majority vote of the petitioner herein is not legally valid, and therefore, unsustainable. It is also pointed out that the allegation made by the petitioner against the Junior Superintendent in the 3rd respondent Panchayat viz., Ananthan is not at all true or correct, and there is no Junior Superintendent by name 'Ananthan' working in the post of the 3rd respondent Panchayat. It is further pointed out that, even though such an allegation is made, the said person is not made a party to the writ petition. 8. That apart, it is submitted that, the Secretary of the 3rd respondent has deposed before the State Election Commission that the resignation letter received by him is on the file and that he has received only one resignation letter from the petitioner. According to learned counsel for the 2nd respondent, the order passed by the State Election Commission is based on the factual circumstances, evident from the files produced before it by the Secretary of the 3rd respondent, and therefore, no interference is warranted to the said order, since there is no arbitrariness, illegality or any other legal infirmity, justifying interference of this Court under Article 226 of the Constitution of India. 9. I have heard learned counsel for the petitioners and the respective counsel appearing for the respondents in the writ petitions, and perused pleadings of the rival parties and the documents on record, in all the writ petitions. 10. The prime contention advanced by learned counsel for the petitioner is that, no copy of the petition/complaint dated 16.07.2018 filed by the 2nd respondent before the State Election Commission was given to the petitioner, and therefore, the petitioner was unable to contest the proceedings before the State Election Commission, taking into account the complaint of the 2nd respondent. 10. The prime contention advanced by learned counsel for the petitioner is that, no copy of the petition/complaint dated 16.07.2018 filed by the 2nd respondent before the State Election Commission was given to the petitioner, and therefore, the petitioner was unable to contest the proceedings before the State Election Commission, taking into account the complaint of the 2nd respondent. That apart, it is submitted that, immediately on receipt of the resignation from the petitioner, the Secretary of the 3rd respondent Panchayat has filed a report before the 1st respondent, in which, it is enumerated that the petitioner has resigned only from the post of the President, evident from Ext.P2. It is also contended that, since the Election Commission relied upon the complaint submitted by the 2nd respondent, in order to arrive at a final conclusion, non-serving of a copy of the complaint to the petitioner is violative of the principles of natural justice, and therefore, the order passed by the State Election Commission is arbitrary and illegal. 11. Further, it is submitted, it is evident from Ext.P3 that a meeting of the Panchayat was called for on 06.07.2018 at 11.40 a.m., and notice was served on the petitioner also. Therefore, on a close reading of Exts.P1 to P3, it is quite clear and evident that petitioner has resigned only from the post of President and he has not resigned from the membership of the Panchayat. Therefore, according to learned counsel for the petitioner, the State Election Commission has not evaluated the situation in accordance with law, and therefore, Ext.P10 order passed by the State Election Commission is contrary to law, justifying interference of this Court, exercising the power of judicial review under Article 226 of the Constitution of India. 12. On the other hand, learned Standing Counsel appearing for the State Election Commission submitted that, the Election Commission has passed the order taking into account the entire documents produced by the Secretary of the 3rd respondent Panchayat and the Secretary has clearly deposed that there was only one resignation received by the Secretary in the form prescribed under Rule 3(1) of the Rules, 2000, in which, what is not applicable is struck off and it is clear from the resignation letter that petitioner has resigned from the post of President and the membership. 13. 13. Learned counsel for the 2nd respondent has advanced arguments relying upon the counter affidavit filed and submitted that the order passed by the State Election Commission is in accordance with law. 14. I have considered the rival submissions made across the Bar, and evaluated the provisions contained under Sec.155 of Act, 1994, and the Rules, 2000, which are the guiding provisions to sort out the disputed question. The sole question to be considered is, whether any manner of interference is warranted to Ext.P10 order passed by the State Election Commission. It is quite clear from the pleadings put forth by the petitioner as well as from the order of the State Election Commission that both, petitioner as well as the 2nd respondent have filed petitions before the State Election Commission in respect of the dispute with regard to the resignation tendered. The State Election Commission, after evaluating the situation, has clearly held that the petitioner has struck off in the prescribed form all what are not required and the petitioner has not struck off 'President' as well as 'member' in the resignation letter submitted under the prescribed form, which is as follows: “APPENDIX FORM [See sub-rule (1) of Rule (3)] LETTER OF RESIGNATION I, …................................... the elected President/Vice-President/Member of …................. (Strike off which is not applicable)”.Village/Block/District Panchayat hereby voluntarily resign the President-ship/Vice-President-ship/Member-ship of the Panchayat. Place : Date : Signature Name and address. Signature, Name, Official address and seal …......................... of the Gazetted Officer attesting (To be filled only in the case where the resignation letter cannot be delivered in person to the Secretary) (To be filled in by the Secretary) (Strike off which is not applicable)”.This resignation letter has been signed by …................. before me and delivered in person to me at …................(time) on …................... (date)/Received this resignation letter by post at ….............. (time) on …................. (date). Signature of the Secretary. Acknowledgement Receipt of Resignation letter (To be filled in by the Secretary and given to the person resigned) Received by me the resignation letter of Sri. …...............resigning the President-ship/Vice-President-ship/Member-ship of the Village (Strike off which is not applicable)”./Block/District Panchayat at …............. (time) on …................. (date) in person/by post. The resignation has come into force with effect from the above said date. Place: Date : …......….... Secretary, Panchayat. 15. …...............resigning the President-ship/Vice-President-ship/Member-ship of the Village (Strike off which is not applicable)”./Block/District Panchayat at …............. (time) on …................. (date) in person/by post. The resignation has come into force with effect from the above said date. Place: Date : …......….... Secretary, Panchayat. 15. Therefore, apparently, the issue considered by the State Election Commission was, whether the petitioner has resigned from the membership of the Panchayat Committee, which was admittedly the sole dispute. After verifying the files, the Election Commission has found that petitioner has applied his mind clearly while submitting the resignation and struck off whatever is not applicable. Therefore, merely because the Secretary of the Panchayat has issued the acknowledgement without striking off the 'membership' in the prescribed format, that by itself is not a conclusive proof to decide the dispute in contemplation of Sec.155 of Act, 1994 and the Rules, 2000. Section 155 of Act, 1994, read thus: “155. Resignation of President, Vice-President or members.--(1) The President or Vice President or any other member of a Panchayat may resign his office by tendering his resignation in the prescribed form to the Secretary and the resignation shall take effect from the date on which it is received by the Secretary and the Secretary shall immediately report the fact to the Panchayat and the State Election Commission. (2) The President, the Vice-President or the member who resigns shall either in person or, if such resignation letter has been attested by a Gazetted Officer, by registered post, tender or send as the case may be, his resignation to the Secretary and the Secretary shall give acknowledgement for the receipt of the same. (3) If any dispute regarding any resignation arises, it shall be referred to the State Election Commission for decision and its decision thereon shall be final: Provided that no dispute, referred after the expiry of fifteen days from the date on which the resignation takes effect, shall be entertained by the State Election Commission.” Therefore, it is to be noted, the Election Commission has discharged the duty in contemplation of law and found that the petitioner has resigned from the membership of the Panchayat. It was after verifying the files and assimilating the factual and legal circumstances, the Election Commission arrived at the conclusion that in the resignation tendered by the petitioner, petitioner has resigned from the membership of the Panchayat committee and from the office of the President. It was after verifying the files and assimilating the factual and legal circumstances, the Election Commission arrived at the conclusion that in the resignation tendered by the petitioner, petitioner has resigned from the membership of the Panchayat committee and from the office of the President. The files are produced by learned Standing Counsel for the State Election Commission before me, from where, it is explicit that the formalities that are contemplated under Sec.155 of the Kerala Panchayat Raj Act, 1994, and the Rules, 2000 are clearly followed in the matter of submission of the resignation. I am also of the considered opinion that, the 1st respondent has passed the order taking into account the resignation letter submitted by the petitioner, the relevant inputs put forth by the parties and the evidence, and I am satisfied that there is no illegality or arbitrariness in the order passed by the 1st respondent, holding that petitioner has resigned from the post of the President as well as the membership of the Panchayat Committee. 16. Even though learned counsel for the petitioner has a contention that the copy of the complaint/petition submitted by the 2nd respondent was not issued to the petitioner, however, on going through the complaint filed by the petitioner before the State Election Commission, it is quite clear and evident that petitioner was very well aware of the issue that was raised by the 2nd respondent before the 1st respondent, which is substantially similar in nature to the petition filed by the writ petitioner. It is also clear, petitioner participated in the proceedings without making any such complaint also, and therefore, the said contention put forth has no factual or legal foundation to be interfered with the order passed by the State Election Commission. Moreover, Rule 5 of Rules, 2000, when read along with Sec.155(3) of Act, 1994 makes the situation clearer, which read thus: “5. Settlement of dispute regarding resignation.--(1) Any person having a dispute regarding the resignation of the President or the Vice-President or the Member may, within fifteen days from the date on which the resignation is deemed to have taken effect, prefer a petition before the State Election Commission for its decision and the decision of the Commission thereon shall be final. (2) Every petition filed before the State Election Commission under sub-rule (1) shall be disposed of by the Commission as early as possible.” 17. (2) Every petition filed before the State Election Commission under sub-rule (1) shall be disposed of by the Commission as early as possible.” 17. In this context, the judgment rendered by this Court in 'Mani P. v. Secretary, Anad Grama Panchayat and Another' [ 2009 (1) KHC 766 : 2009 (1) KLT 298 ] is relevant. Paragraph 9 of the judgment read thus: “9. I am of opinion that the Scheme of the Act generally also contemplates both reference as well as a petition to the Commission. One example is S.36 relating to disqualification of a member. There, when a question arises as to whether a member has become disqualified under S.30 or S.35 except Clause (n) thereof, any member or any person entitled to vote can file a petition and the Secretary or an Officer authorised by the Government in this behalf can refer such a question to the State Election Commission for a decision. There the question that arises can be placed before the Commission either by reference by Secretary or by petition by a member or person entitled to vote and the Commission is required to dispose of the petition or the reference. Taking an analogy from the same, I am of opinion that the Scheme of the Act contemplates either reference or a petition, both of which would be maintainable. That being so, I am inclined to adopt the view that under S.155 and R.5, the Secretary may refer the dispute regarding resignation, which arises, to the Commission or the person himself may file a petition before the Election Commission under R.5, either of which, if it is within the time stipulated in the proviso to S.155(3), that would be liable to be considered by the Commission on merits. I am supported in this view by the judgment of this Court in Annamkutty's case (supra), wherein, interpreting the erstwhile S.155(4) which is in pari materia with the present S.155(3), a learned Judge of this Court held that the President who was to accept the resignation or the party can raise a dispute which has to be considered by the Commission. I do not think that the decision in Brundaban Nayak's case (supra) relied upon by the Counsel for the Commission lays down any different law. I do not think that the decision in Brundaban Nayak's case (supra) relied upon by the Counsel for the Commission lays down any different law. In that decision, what was considered was as to whether a reference under Article 192(1) to the Governor on the question of disqualification of a member of a House of the Legislature under Article 191 has to be made by the Speaker only after the issue is raised in the Assembly and whether it is the Governor or the Election Commission who has to conduct the enquiry on the reference. The Supreme Court held that under that Article all that is relevant is that a question of the type mentioned has to arise, irrespective of who raises it and the Speaker should refer it to the Governor and that question has to be decided by the Governor. That decision is not an authority for the proposition that in the absence of a referring authority no reference can be made nor that the reference has to be by petition of an aggrieved person. The reliance on Gopi's case (supra) is also misplaced as no similar issue arose for consideration in that case.” 18. Now the question emerges for consideration is, with respect to the election held to the post of President on 28.07.2018, which was a subject matter of challenge in W.P.(C) No.24682 of 2018 filed, before the conduct of the election, and while the subject dispute was pending consideration before the 1st respondent, in which, an interim order is passed by this Court that the election conducted will be subject to the result of the writ petition. The said writ petition was filed basically challenging Exts.P12 and P13 communications issued by the State Election Commission to the Secretary and the 2nd respondent respectively, clarifying that the petitioner in W.P.(C) No.29145 of 2018, can continue as a member till such time the dispute is adjudicated. 19. Therefore, there cannot be any doubt that, the election to the post of President, with the participation of the petitioner in W.P.(C) No.29145 of 2018 can only be subject to the orders passed by the State Election Commission. 19. Therefore, there cannot be any doubt that, the election to the post of President, with the participation of the petitioner in W.P.(C) No.29145 of 2018 can only be subject to the orders passed by the State Election Commission. When the Election Commission passed the order holding that petitioner has resigned from the post of President and the membership of the Panchayat committee also, then the petitioner has ceased to become a member from the date of tendering the resignation to the Secretary of the 3rd respondent Grama Panchayat, as is contemplated under Sec.155(1) of Act, 1994, and Rule 3(5) of Rules, 2000, which read thus: “3. Resignation of President, Vice-President or Members.— (1) x x x x x x x (2) x x x x x x x x x (3) x x x x x x x x x (4) x x x x x x x x x (5) The resignation shall take effect from the date on which the resignation letter is received by the Secretary and the person resigned shall hand over the charge of his official functions, records and properties of the Panchayat to the President or the Vice-President or the person holding charge of the President or the Secretary, as the case may be.” It is true, normally, an election has to be challenged only in accordance with the procedure prescribed under Sec.153(14) of the Kerala Panchayat Raj Act, which is the prime contention advanced by learned counsel for the petitioner in W.P.(C) No.29145 of 2018. However, since the election was permitted to be conducted with the participation of the petitioner in W.P.(C) No.29145 of 2018 by this Court, and which was a subject matter under consideration of the State Election Commission, participation of the petitioner in the said writ petition in the election process, will have to necessarily depend upon the orders passed by this Court and the State Election Commission. 20. So much so, if such a view is not adopted by this Court, no meaning can be ascribed to the interim order passed by this Court. Moreover, the President has won the election on the single vote majority happened to be exercised by the petitioner on account of the interim order passed by this Court in the writ petition specified above, and there is no factual complexity in the matter. Moreover, the President has won the election on the single vote majority happened to be exercised by the petitioner on account of the interim order passed by this Court in the writ petition specified above, and there is no factual complexity in the matter. That apart, the interim orders passed by this Court should be made meaningful and workable, which thus also means, unless such a stand is adopted by this Court, orders passed in the intervening circumstances will be a casualty and a mockery of justice. So also, merely because an alternative remedy is available under the statute, that by itself will not deprive this Court, from exercising the power conferred under Article 226 of the Constitution of India, in order to uphold the rule of law, integrity, prestige and dignity of this Court, and also to set the issue at naught. Such a course is adopted based on clear facts discernible from the undisputed pleadings put forth by the parties and which also eliminate multiplicity of proceedings. In effect, it is a fair and legalistic approach made by this Court, since virtually the process of election was impliedly controlled by this Court consequent to the interim order passed, and the writ petition pending final adjudication. Moreover, the President so elected, in spite of the service of notice, has not entered appearance in the case concerned. 21. Summarising the issues so, I am of the considered opinion that, the 2nd respondent in W.P.(C) No.29145 of 2018, who is the petitioner in W.P.(C) Nos.24682 and 29228 of 2018, is entitled to succeed in the writ petitions. So far as W.P.(C) No.29268 of 2018 is concerned, it is filed by the defeated Vice- President in respect of the no confidence motion passed against the Vice President of the Panchayat with the participation of the petitioner in W.P.(C) No.29145 of 2018. However, in view of the order passed by this Court in W.P.(C) No.24682 of 2018, that the notice of the no confidence motion also will be subject to the result of the said writ petition, the final judgment delivered by this Court, as well as the order passed by the 1st respondent, will ultimately guide the fate of the no confidence motion passed. Taking into account the said aspect, and also that the no confidence motion was passed on account of the vote tendered by the disputed petitioner, I am of the considered opinion that, the petitioner in W.P.(C) No.29268 of 2018 also is entitled to succeed. Therefore, the writ petition will stand allowed. 22. Assimilating the situations discussed above, W.P.(C) No.29145 of 2018 will stand dismissed, and the other writ petitions will stand allowed and the no confidence motion passed against the Vice President and the Presidential election conducted, on 24.07.2018 and 28.07.2018 respectively will stand quashed, and there will be a consequential direction to the 1st respondent State Election Commission to take appropriate action in accordance with law to conduct the election to the post of President and Vice-President, at the earliest. The original records produced by the 1st respondent shall be returned to the Standing Counsel.