IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20397 of 2009(T)
1. GOPALAN, AGED 68 YEARS,
... Petitioner
Vs
1. THE KERALA STATE ELECTION COMMISSION,
... Respondent
2. THE SECRETARY/BLOCK DEVELOPMENT OFFICER,
3. THE SECRETARY,
4. VENMONY SUDHAKARAN, PRESIDENT,
5. ABDUL KALAM, MEMBER, WARD NO.8,
6. SAJI, MEMBER, WARD NO.3,
7. JOLLY OOMMEN, MEMBER, WARD NO.12,
8. JESSY VARGHESE, MEMBER, WARD NO.1,
9. ELIZABETH SAMUEL, MEMBER,
For Petitioner :SRI.R.T.PRADEEP
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :15/09/2009
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.20397 OF 2009
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Dated this the 15th day of September, 2009
JUDGMENT
“C.R.”
1.The petitioner, the vice president of the third respondent
grama panchayat, challenges notice of a motion of no-
confidence against the 4th respondent, the president of that
panchayat. The fundamental plea projected is that Ext.P4
motion contains a signature, as that of the 5th respondent
Abdul Kalam, a member, though he is not in India. It is also
pleaded that the proposed motion is vitiated by fraud.
2.Ext.P3 does not contain the signature of Abdul Kalam. Ext.P4
is the Malayalam version of the form referable to Rule 15(2) of
the Kerala Panchayat Raj (Procedure for Panchayat Meetings)
Rules, 1995. That form does not require the signatures
therein to be attested by any authority. Ext.P3 contains a
signature as that of Abdul Kalam. Ext.P5 is the English version
of the form in terms of Rule 15. That also carries a signature
as that of Abdul Kalam in the presence of the Consulate
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General of India, Jeddah. Along with these materials, by now,
the 5th respondent has filed a counter affidavit, challenging the
very foundation of the writ petition and even charging the
petitioner of having made a false statement in relation to the
5th respondent’s signature. He further seeks leave of this
Court to file appropriate application to prosecute the
petitioner. One thing is certain from that counter affidavit;
that the 5th respondent stands by his signatures in the disputed
documents. With that counter affidavit, I do not find any
justification to continue the interlocutory order issued
deferring the consideration of the motion.
3.Now, the only issue that remains is the correctness of Ext.P8
decision issued by the Election Commission, taking the view
that a member who is abroad with leave, is entitled to initiate a
motion of no-confidence. A member could be deprived of
certain rights if he proceeds abroad without leave. But if he
goes with leave, he cannot be deprived of any of his rights in
terms of the statutory provisions. He is entitled to receive
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honorarium also. Deprivations, if any, could be only in
accordance with the statute. There is no prescription in law
disabling a person who is abroad with leave from participating
in a no-confidence motion. Hence, he will not be incapacitated
even from being party to the exercise of moving a no-
confidence motion. Therefore, Ext.P8 stands.
4.There are two intervening situations. It is stated that there
was a by-election while matters were pending consideration
either before the Commission or before this Court. The
question whether the member so elected is entitled to vote is
not an issue directly arising for decision here. However, that
has been substantially pointed out by the learned counsel
appearing for the panchayat on the premise that lack of clarity
in that regard may lead to confusion. It also appears that
apart from the motion of no-confidence that led to this writ
petition, notice of yet another motion of no-confidence is also
given. The question is whether both the motions could be
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considered or whether the one that led to the writ petition,
which is earlier in point of time, has to be given precedence.
5.Adverting to the different provisions in Section 157 of the Act,
judgment dated 17.8.2009 in W.P(C).23447/09 was delivered
holding, among other things, that the situs of the jurisdictional
fact generating the prohibition contained in sub-section 13 of
Section 157 is the meeting. To hold so, it was further held that
the copy of the motion given along with the notice of the
intended motion becomes alive for generating the incidentals
that could arise therefrom only on its presentation in the
meeting, by the presiding officer, reading it out and declaring
it open for debate. Applying that law, the motion of no-
confidence, for which notice was issued at an earlier point of
time, cannot gain any precedence if there is also another
lawfully moved motion of no-confidence, with lawful notice in
terms of the statutory provisions, when the motion notified
earlier is read out and put to debate and voting, if necessary.
Therefore, if the authorised officer decides to hold a meeting
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for consideration of both the motions of no-confidence in a
consolidated manner, it will not infract any statutory provision.
6.Now, with the law as noticed above, the legal incidents
referable to no confidence motion arise at the meeting in
which it is presented, unless the meeting falls for want of
quorum. As a necessary consequence, all persons who are
members of the panchayat at the time of the meeting are
entitled to participate in the consideration of that motion.
Therefore, a member elected in a bye-election, after notice of a
no-confidence motion, is also entitled to participate in the
consideration and voting in relation to that no-confidence
motion. Hence, the member of the panchayat who came in
following the bye-election is also entitled to participate in the
meetings in which the motions of no-confidence would be
considered.
7.For the aforesaid reasons, vacating the interim order granted
in this case and affirming the legality of Exts.P3, P4, P5and P8,
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it is ordered that the authorised officer will schedule a meeting
of the panchayat for consideration of the motion that has led to
this writ petition and also the subsequent motion Ext.R1(a), if
that is otherwise in order, and put both those motions to
debate and vote compositely. This will do complete justice
between the parties. The notices to be issued shall be on the
basis that the notices of the motions have been received today,
i.e., on the date of this judgment. The writ petition is ordered
accordingly.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
kkb.17/9.