IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 35487 of 2007(Y)
1. POOKKOTTIL SADANANDAN,
... Petitioner
Vs
1. THE KERALA STATE ELECTION COMMISSION,
... Respondent
2. SRI.MUHAMMED, DEW DALE,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent :SRI.P.V.KUNHIKRISHNAN
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :10/12/2007
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) No. 35487 and 35500 OF 2007
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Dated this the 10th day of December, 2007
JUDGMENT
These Writ Petitions filed by the two elected members of
Koduvally Grama Panchayat in Kozhikode District (elected in bye
elections) representing ward Nos.2 and 14 respectively raise common
questions and hence are being disposed of by this common judgment.
2. The Kerala State Election Commission is the 1st respondent in
both the cases. Under challenge in these cases are orders passed by
the Election Commission on IAs filed in original petitions filed by the
party respondents under Section 36(1) read with Section 35 (q) of the
Panchayat Raj Act seeking declarations that the petitioners are
disqualified to continue as members of the Grama Panchayat. Ext.P1 is
copy of the original petition filed by the 2nd respondent in WP(C)
No.35500 of 2007 and Ext.P1 in WP(C) No.35487 of 2007 is copy of the
original petition which was filed by the 2nd respondent in that case.
Ext.P2 in both these cases are copies of the IAs and Exts.P4 and P5
respectively in WP(C) No.35487 and 35500 of 2007 are copies of orders
passed by the 1st respondent Election Commission are under challenge
in these writ petitions. Challenging the impugned orders it is urged in
the writ petitions that the power conferred on the State Election
WPC Nos.35487 & 35500 of 2007
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Commission under Section 36 of the Kerala Panchayat Raj Act to pass
interim orders is confined to deciding whether the member who is
sought to be disqualified should or not continue in office. Therefore
while it is open to the Election Commission to decide that a member is
not entitled to continue in office pending adjudication of the question
whether he is liable to be disqualified as a member, the Commission
does not have the power to decide that a person can continue as
member but cannot exercise the rights attached to his office as a
member including the right to vote in committee meetings. In the instant
cases what has been done by the Election Commission is to permit the
petitioners to continue in office participate in meeting, draw sitting fees
etc., but without right to vote. The impugned orders to the extent they
restrain the petitioners from exercising their voting rights in the Council
is without jurisdiction and amounts to a fundamental error vitiating the
decision making process warranting invocation of powers of judicial
review by this Court. It is urged that the petitioners were elected in bye
elections and with their elections the political equations in the Council
has changed and the ruling left democratic front has lost its majority. By
passing the impugned orders and restraining the petitioners from
exercising their voting rights the Election Commission has frustrated the
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will of the people who voted the petitioners in as members. It is urged
that the findings in the impugned orders are to the effect that the
petitioners have already entailed disqualification due to their non-
submission of declaration of assets and liabilities within the time limit
prescribed under Section 159 of the Panchayat Raj Act to the
competent authority namely the Deputy Director of Panchayats. Such a
finding should not have been entered in an interlocutory proceeding
since the finding that an enquiry to be conducted in the original petitions
will be meaningless. In both the writ petitions detailed counter affidavits
have been filed by (the 2nd respondent) the persons who filed the
original petitions before the Election Commission justifying the
impugned orders.
3. I have heard the submissions of Sri.K.Ramkumar, Senior
Counsel on behalf of the petitioners in both the cases and those of
Sri.M.K.Damodaran, Senior Counsel for the 2nd respondent in WP(C)
No.35487 of 2007 and Sri.P.V.Kunhikrishnan, learned counsel for the
2nd respondent in WP(C) No.35500 of 2007 and Sri.Murali
Purushothaman, learned Standing Counsel for the State Election
Commission.
4. Sri.K.Ramkumar Senior Counsel addressed me extensively on
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the facts obtaining in both the cases and particularly WP(C) No.35500 of
2007. My attention was drawn by the learned Senior Counsel to Section
35(1) (q), 159 and 36(2) of the Panchayat Raj Act. Learned Counsel
would submit that the power under Section 36(2) is the power to pass an
interim order restraining the allegedly disqualified member from
exercising his powers as member. He pointed out that the interim
orders sought for in the IAs which were filed by the party respondents
were also in the same lines. The Election Commission is not a full
fledged civil court vested with inherent powers, instead it was only a
statutory authority conferred with certain enumerated procedural powers
of the Civil Court by virtue of Section 139 of the Panchayat Raj Act.
Therefore having decided to permit the petitioners to continue to act as
members by attending the meetings, participating in the deliberations
and by collecting sitting fees, the Election commission was not justified
in placing fetters on the powers the petitioners enjoy as members. The
Election Commission according to the learned Senior Counsel had no
power to impose restrictions on the powers and privileges of the
petitioners as members of the Panchayat having declined to restrain the
petitioners from continuing as members. The learned Senior Counsel
drew my attention to the defence of the petitioners to the allegations and
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submitted that the petitioners definite case is that they had sent the
asset and liability statements to the competent authority within the
prescribed period under postal certificate. The Senior Counsel
submitted that when a letter or an article is sent by under postal
certificate and when it is shown hat the letter or the article had been
addressed properly, there is justification for presuming that the article or
letter reached the addressee duly. The burden to show that the
petitioners have entailed disqualification is on the party respondents and
that burden has not been discharged by them. The Election
Commission has cast burden of proof wrongly and this has resulted in
prejudice to the petitioners. Learned Senior Counsel concluded that in
any event the findings presently entered will render the adjudication to
be conducted by the 1st respondent meaningless.
5. Sri.M.K.Damodaran, Senior counsel could meet the
submissions of Mr.K.Ramkumar. The learned Senior counsel submitted
that there is no infirmity about the impugned interim orders warranting
interference by this Court under its extraordinary constitutional
jurisdiction. Senior counsel submitted that it was obligatory that the
candidates submitted their asset and liability statements under Section
159 in this case on or before 18.7.07. Ext.R2(a) application in WP(C)
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No.35487 of 2007 was submitted by the 2nd respondent in that case
before the competent authority for getting information regarding
submission of asset and liability statement by the petitioner in that case.
To Ext.R2(a), Ext.R2(b) reply dt.25.07.07 was received. According to
Ext.R2(b) the writ petitioner had not filed any asset-liability statement till
25.07.07. It was in the light of Ext.R2(b) that the original petition was
filed by his client. According to learned Senior counsel it is his client
who should be aggrieved by Ext.P4 since the proper order to be passed
was an order restraining the petitioner from exercising any of his powers
and privileges as member of the Panchayat. Senior counsel submitted
that the impugned order is well within the powers of the Election
Commission under Section 36(2). Any authority which has power to
pass certain orders should be conceded ancillary power for the effectual
exercise of the main power which is already vested in him. Learned
Senior counsel submitted that the Deputy Director of Panchayat, the
competent authority to receive the asset and liability statement under
Section 159 ought to have been made a party to this Writ Petition and
hence this Writ Petition is bad for non-joinder of necessary parties. As
for the petitioner’s claim that he had sent the statement of assets and
liabilities under certificate of posting the learned Senior counsel
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submitted that it is quite surprising that the petitioner would post the
articles from a far away post office bye passing 3 or 4 post offices which
are nearer to his own place.
6. Referring to the post office guide containing rules and
regulations relating to inland and foreign post published by the Director
General of Posts and Telegraphs, Government of India, the learned
Senior counsel submitted that a postal certificate only certifies that a
letter or article has been posted and it will not mean that letters and
articles in respect of which the certificate is issued have been affixed
with postage stamp nor will it guarantee in any way that the despatch of
the articles entered in the certificate despatched on the same day.
Counsel also submitted that the postal certificate is not a proof
regarding the nature of the contents. It was very suspicious that in
these days when people use courier services or registered posts,
petitioners have preferred to send by certificate of posting and that too
from a far away post office. Learned Senior Counsel would fortify his
submissions on the authority of a Division Bench judgment of this Court
in Thiruvananthapuram District Co-operative Bank v. State of
Kerala [1992 (1) KLT 381] and also the judgment of a learned Single
Judge of this Court in Giji Mathew v. KeralaState Election
WPC Nos.35487 & 35500 of 2007
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Commission [2006(3) KLT 141].
7. Sri.Murali Purushothaman, learned Standing Counsel for the
Election Commission and Sri.P.V.Kunhijkrishnan would endorse the
submissions of Mr.M.K.Damodaran. Mr.Murali Purushothaman would
supply to me photocopies of all the documents which were before the
Election Commission.
8. Having anxiously considered the rival submissions addressed
at the Bar in the light of the pleadings raised by the parties, the
documents on record before the Election Commission (copies of which
were supplied to me), the statutory provisions and the judicial
precedents cited before me by Sri.M.K.Damodaran, Senior Counsel, I
am of the view that there is no warrant for exercising the extraordinary
powers of judicial review on the impugned orders. It is difficult to accept
the argument of Sri.K.Ramkumar that under Section 36(2) the Election
Commission had power only to restrain the petitioners absolutely from
exercising powers and privileges as members or not to restrain them at
all. It is certainly true that the Election Commission is not a full fledged
court and is governed by the Civil Procedure Code for matters
specifically enumerated in Section 139 only. But, at the same time, the
legal position is trite that every authority including an administrative
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authority which has certain powers should be conceded, ancillary
powers for effectively exercising the powers statutorily vested on the
authority. In fact the Division Bench of this Court in
Thiruvananthapuram District Co-operative Bank’s (supra) case
refers to a number of judicial precedents and also the basic principles of
construction of statute law and also the views expressed by celebrated
authors; Craies and Souther Land in their works on statute, law and
statutory construction respectively. The argument of Mr.Ramkumar that
burden of proof has been wrongly cast by the Election Commission on
his clients who are the respondents, has only superficial attractiveness.
A careful reading of the impugned orders will show that the Election
Commission preferred the information furnished to the party
respondents under the Right to Information Act to the postal certificates
produced by the writ petitioners and held that a strong prima facie case
is made out for granting interim orders. As rightly pointed out by
Sri.M.K.Damodaran, the Election Commission could have allowed IAs in
full and restrained the petitioners absolutely from exercising their rights
and privileges as members. But mindful of the situation that the
Commission was dealing with IAs and was passing interim orders the
Commission thought it fit not to grant an absolute restraining order.
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Obviously, it was the interest of the constituencies, i.e., the electorate of
the wards represented by the petitioners that was taking into account by
the Election Commission while deciding not to pass a completely
restraining order.
9. I do find some merit in the submission of Mr.Ramkumar that the
Election Commission appears to have found finally that the writ
petitioners did not submit their asset-liability statement within the
stipulated time. But, those finding shall be understood by everybody
concerned as provisional observations only for the purpose of the IAs.
In other words those “findings” will not qualify as findings in a strict
judicial sense. Even as I decline to set aside the impugned orders, I
direct the 1st respondent Election Commission to finalise the
adjudication and dispose of the original petitions in both these writ
petitions at the earliest and at any rate within three months of receiving
copy of this judgment. Election Commission shall afford sufficient
opportunity to the writ petitioners for substantiating their claim that they
had sent the asset-liability statements to the competent authority by
adducing whatever evidence they have at their command. The Election
Commission will not be influenced in any manner by the impugned
orders or by the confirmation of the impugned orders by this Court while
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deciding the original petitions finally.
The parties will appear before the Election Commission on
17.12.07.
PIUS C. KURIAKOSE, JUDGE
btt
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