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2020 DIGILAW 480 (KER)

Thomas K. Peelianickal S/o. Kuriakose v. State Election Commission Kerala

2020-06-10

ALEXANDER THOMAS

body2020
JUDGMENT : The case set up in this Writ petition (C) is as follows: The petitioner is a resident of Ward No.10 of Nedumkunnam Grama Panchayat in Kottayam District. There are total 15 wards in Nedumkunnam Grama Panchayat. The last election to the Panchayat committee was held in 2015. The total 15 members of the Panchayat Committee belong to various political parties and the President-ship is on rotation basis. The first President was in office for one year and three months. The second President was in office for two years. The third President was in office for one year. The term of fourth President expired in February 2020. In the absence of President to the Panchayat the administration is by the Vice President and the administration of Panchayat is going on smoothly. The next election to the Panchayat is to be held in September 2020 as declared by the Government of Kerala. Since the next general election is to be held in September 2020 and in the wake of fast spreading of pandemic Covid-19, the Government of Kerala has decided not to conduct bye-elections to the Local Self Government Institutions this year, which were proposed to be held in April/May 2020. The Covid-19 pandemic is fast spreading in Kerala, especially in Kottayam District. It has been reported in Indian Express dated 05.06.2020 that new 5 cases have been reported in Kottayam. The boundary of Kottayam District is Pathanamthitta District and in Pathanamthitta also the Covid-19 is fast spreading. Even though the balance period of the committee and the President-ship is only upto September 2020, the 2nd respondent has issued notification fixing the election of the president-ship on 12.06.2020. The date of Exhibit-P5 notification is 02.06.2020 and the election is notified to be held on 12.06.2020. The notification has not been received by all the members with clear seven days for election. The present election to the president-ship is mandated only for political reasons. It is submitted that the political reasons and political ambitions of members of parties may not affect the health and safety of public at large. The election as notified by Exhibit-P5 is not at all a must in the prevailing circumstances, especially in the present situation of spreading of Covid-19 pandemic. This is not a time for fulfilling the political ambitions. Further the lock down is extended till 30.06.2020. The election as notified by Exhibit-P5 is not at all a must in the prevailing circumstances, especially in the present situation of spreading of Covid-19 pandemic. This is not a time for fulfilling the political ambitions. Further the lock down is extended till 30.06.2020. The petitioner has approached respondents 2 to 4 and even submitting representation to the 2nd respondent. But the respondents are continuing with the proceedings for election as notified. Exhibit-P5 notification has to be quashed. It is in the light of these averments and contentions, that the petitioner has filed this Writ Petition (C) seeking the following prayers: “(i) a writ or certiorari or other appropriate writ, order or direction, quashing Exhibit-P5 notification dated 02.06.2020 issued by 2nd respondent; (ii) Issue such other writ, order or direction as may be just and proper in the interest of Justice.” 2. Heard Sri.Mathew Sebastian, learned counsel appearing for the petitioner and Sri.Murali Purushothaman, learned Standing Counsel for the Kerala State Election Commission appearing for R1 and R2. In the nature of the orders proposed to be passed in this Writ petition notice to R3 and R4 (Nedumkunnam Grama Panchayat) will stand dispensed with. 3. The case of the petitioner is that, he is a resident and voter of the 3rd respondent Nedumkunnam Grama Panchayat and that the issuance of Ext.P5 notification dated 02-06-2020 by the 2nd respondent Returning Officer for conduct of election to the vacant office of president of the said Grama Panchayat is illegal and improper. One of the main grounds urged is that statutory rules prescribed that notice of not less than seven clear days should be given for the conduct of the election and that in the instant case Ext.P5 notification is issued on 02-06-2020 and the election is scheduled to be conducted on 12-06-2020 and in all likelihood the minimum requirement of seven clear days of notice may not have been satisfied and therefore, election process itself is vitiated. Further that the whole state as well as the respondent Grama Panchayat areas are now facing issues of Covid-19 pandemic and therefore it is quite unreasonable to conduct the election at this time. Further that the whole state as well as the respondent Grama Panchayat areas are now facing issues of Covid-19 pandemic and therefore it is quite unreasonable to conduct the election at this time. It is also pointed out that a reading of Ext.P5 notification would make it clear that election is ordered to be conducted on 12-06-2020 at 11 a.m, in the meeting of the elected members of the Panchayat Committee and that it is mentioned in Ext.P5 notice that 12-06-2020 is a Monday, whereas 12-06-2020 actually falls on a Friday. 4. Per contra, Sri.Murali Purushothaman, learned Standing Counsel for Kerala State Election Commission appearing for R1 and R2 would submit on the basis of instructions that Ext.P5 notice dated 02-06-2020 has been given in strict compliance of the procedural norms laid down in Rule 5(3) of Kerala Panchayat Raj (Election of President and Vice-President) Rules, 1995 framed under the provisions of the Kerala Panchayat Raj Act 1994 and further that Sec.153(14) of the Kerala Panchayat Raj Act, confers a specific remedy for agitating election disputes in such cases and it has been also laid down therein that election to the offices of President and Vice-President can be challenged only by a member of the Panchayat by filing the requisite election petition before the notified Election Tribunal (which is the Munsiff Court concerned). It is pointed out that since the election remedy is conferred as per the Act, it is trite that once the election process is notified, interference may not be called for and after the completion of the election process it is for the aggrieved party to seek appropriate remedies through such statutory remedy. Further it is pointed out Sec.153(14) clearly stipulates that such election remedy can be availed only by an elected member of the Panchayat Committee, going by the definition of member of Panchayat as per Sec.2(xxiv). Since the petitioner is admittedly only a voter of Panchayat and not an elected member of the Panchayat Committee, he does not have even the locus standi to prefer an election petition, in terms of the governing statues. Hence it is pointed out that the abovesaid pleas of the petitioner are not tenable and that this Court may not interfere with the matter. Section 2 (xxiv) of the Kerala Panchayat Raj Act defines 'member' of the Panchayat as follows. “2. Hence it is pointed out that the abovesaid pleas of the petitioner are not tenable and that this Court may not interfere with the matter. Section 2 (xxiv) of the Kerala Panchayat Raj Act defines 'member' of the Panchayat as follows. “2. Definitions.-In this Act, unless the context otherwise requires,- (xxiv) 'member' means the member of a Panchayat at any level;” 5. Section 153 (14) of the Kerala Panchayat Raj Act reads as follows. “153. Election of President and Vice-President.- (14) Where a dispute arises as to the validity of an election of President or Vice-President of a Panchayat, any member of that Panchayat may file a petition,- (a) in the case of Village Panchayat, before the Munsiff Court having jurisdiction over the area in which its headquarters is situated; (b) in the case of Block Panchayat or District Panchayat, before the District Court having jurisdiction over the area in which its headquarters is situated, for decision and such decision shall be final. (14a) The validity of the election of the President or the Vice-President of a Panchayat shall not be called in question for the reason of any vacancy in the place of the members or who shall elect President or Vice-President for the reason of the absence of any member.” 6. Rule 5(3) of the Kerala Panchayat Raj (Election of President and Vice-President), Rules 1995 provides as follows: 5. The manner of convening of election meeting.- “(3) The Returning Officer shall give notice regarding the place date and time of the meeting to the members at least seven clear days before the day of meeting and shall exhibit a copy of such notice in the notice board of the Panchayat concerned.” 7. After hearing both sides and after going through the pleadings and documents on record, it is seen that Ext.P5 notice is issued on 02-06-2020. The learned Standing Counsel for the State Election Commission would assert that the procedural norms in the statutory rules have been complied with and that requisite notice as per Ext.P5 dated 02-06-2020 has been duly served on all the elected members of the Panchayat Committee and that copy of the said notice has also been furnished in the notice board of the respondent Grama Panchayat as mandated in the rules. Since that is the position, the petitioner, who is only a voter, cannot dispute the said factual assertion that such notice as per Ext.P5 has been duly served on the members of the Panchayat Committee. At best such a factual plea could have been taken up only by the member of the Panchayat Committee and more so particularly, in view of the restrictions in Sec.153(14) of the Kerala Panchayat Raj Act that election petition in such a case disputing the election to the post of President or Vice-President can be submitted only by a member of the Panchayat Committee before the notified Election Tribunal. In view of the definition of 'member' of Panchayat as per Sec.2(xxiv), the remedy as per Sec.153(14) can be availed only by the elected member of the Panchayat Committee. 8. Moreover, it is also well settled in a election jurisprudence that once the election process is duly notified, then ordinarily it is not proper for this Court to interfere in the election process before the completion of the election and thereafter, it is for the aggrieved person to work out the remedies provided as per the statute and subject to the restrictions in this statute. In the light of these aspects it is not right and proper for this Court to entertain this writ petition and to interfere in the matter. However, it is made clear that nothing in this judgment would preclude any elected member of the Panchayat Committee, to agitate any such issues, but strictly in terms of the mandatory provisions contained in Sec.153(14) of the Kerala Panchayat Raj Act. In the light of these aspects this Court is constrained to hold that the prayers in this writ petition cannot be entertained. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of.