IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 29144 of 2006(T)
1. RASIYA IBRAHIM, W/O. IBRAHIM,
... Petitioner
Vs
1. THE SECRETARY,
... Respondent
2. THE KERALA STATE ELECTION COMMISSION,
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :22/11/2006
O R D E R
PIUS C.KURIAKOSE, J.
----------------------------------
W.P.(C)NO. 29144 & 30881 of 2006
----------------------------------
Dated this 22nd day of November, 2006
JUDGMENT
W.P.(C) No.30881/2006 is filed by a voter in Ward
No.20 of Koduvally Grama Panchayat and Division No.10
(Nellamkandi) in Koduvally Block Panchayat. He is also a
member of the Koduvally Block Panchayat committee
representing Ward No.19, North Koduvally. He submits that one
Smt.Rasiya Ibrahim was elected from Nellamkandi, in Division
No. 10 of Koduvally Block Panchayat in the election held during
September 2005. The 3rd respondent Koduvally Block Panchayat
represented by its Secretary issued notice to Smt.Rasiya
intimating her that she is disqualified under Section 35(k) of the
Kerala Panchayat Raj Act 1994 on the ground that she has failed
to attend the meeting of the Block Panchayat Committee
scheduled on 23.3.2006, 24.4.2006, 22.4.2006 and 17.5.2006.
It is submitted that on verification of the records it is revealed
that Smt.Rasia Ibrahim attended the meetings convened with
WPC No.29144/2006 & another 2
notice to her within the period from 28.2.2006 to 24.5.2006. The
petitioner alleges that the aforesaid action of the 3rd respondent
is only the result of the political vengeance and the grounds
stated for disqualification in the notice are totally incorrect and
without bona fides. The petitioner points out the strength of the
Panchayat committee is 16 and due to the demise of the then
President the existing strength is 15. If Smt.Rasiya Ibrahim is
not permitted to vote for the elections scheduled as per Ext.P1 it
would adversely affect the voters in Ward No.10 including the
petitioner. The petitioner filed a petition before the 2nd
respondent -State Election Commission under Section 36(1) read
with Section 37 (2) of the Panchayat Raj Act to adjudicate and
decide for the validity of Ext.P2 notice. Ext.P3 is a copy of that
petition . If the election scheduled as per Ext.P1 is not stayed
pending consideration of Ext.P3, the petitioner will be put to
irreparable loss. on the above grounds, the petitioner prays for
following reliefs:
a). Issue a writ of mandamus or any other appropriate writ,
order or direction, directing 2nd respondent to permit smt.Rasiya
Ibrahim to continue in office till a decision is taken on Ext.P3.
WPC No.29144/2006 & another 3
b). Issue a writ of mandamus or any other appropriate
writ, order or direction, directing respondents to postpone
elections scheduled as per Ext.P1 till a decision is taken on
Ext.P3.
2. The first respondent is the State of Kerala and the 4th
respondent is the Returning Officer. Notices were taken on
behalf of the Government by the Government Pleader and on
behalf of the 2nd respondent State Election Commission by
Sri.Murali Purushotaman, the learned Standing Counsel.
3. W.P.(C) No.29144/2006 has been filed by Smt.Rasiya
Ibrahim herself and the respondents respectively are the
Secretary of the Koduvally Grama Panchayat and the Kerala
State Election Commission. The petitioner states that she is the
returned candidate from Nellamkandi, Ward No.X of Koduvally
Block Panchayat as an official candidate of Muslim League in
the U.D.F. Thereafter she was elected as a member of the
Welfare Standing Committee also. She was never given notice by
the Secretary of the Block Panchayat Committee for the meetings
WPC No.29144/2006 & another 4
held on 23.3.2006 24.3.2006, 22.4.2006 and 17.5.2006.
Therefore, she did not participate in the meetings held on those
dates. Even during that period, in the meeting of the standing
Committee she had attended. Ext.P1 notice produced by her, she
contends, is proof positive of the fact that even during the
alleged period of her not attending the committee meetings she
had attended meetings for which she had received notice. Thus
Ext.P1, according to her, will fortify the fact that if she had been
issued notice of the meetings, she would have certainly
attended the same. Even on 17.5.2006, the alleged date of non
attendance she had participated in the Standing Committee
meeting. According to her what really happened is that on
21.6.2006 the President of the Block Panchayat, talked to her
over telephone and stated that no proper register for service of
notice of meetings were kept in the office and the officer
concerned will be facing disciplinary action, if such a register is
not maintained and therefore a fresh register now made in which
she may acknowledge the receipt of the notices by putting her
signature for meetings which she had not received notice.
Accordingly, she went over to the office and put her signatures in
WPC No.29144/2006 & another 5
the register and before she could write the dates on which she
had received the notice, the register was snatched away from
her. It appears to her that it was thereafter that receipt of the
notices for the meetings held on 23.3.2006, 24.3.2006,
22.4.2006 and 17.5.2006 were put in the register. She points out
even in the meeting held on 22.6.2006 , she was allowed to
participate and thus even after 17.5.2006 she was functioning as
a member and the member of Welfare Standing Committee.
She submits that immediately thereafter i.e. on 24.6.2006, she
along with another lady member by name Thankamani went to
the office of the President and requested him to allow her to put
dates on which she had received notice. However, the President
and another member by name N.C.Mohammed misbehaved and
the petitioner had submitted a complaint against the President
and the member before the Koduvally Police and the matter is
being investigated. On the same day, the petitioner had made a
request to the Secretary to allow her to put her dates of receipt
of notices of meetings against her signatures. But she was
shocked to receive a letter from the first respondent intimating
her that by not attending the meeting held on 23.3.2006,
WPC No.29144/2006 & another 6
24.3.2006, 22.4.2006 and 17.5.2006 she will forfeit her
membership under Section 35 (k) of the Kerala Panchayat Raj
Act. The petitioner had submitted her explanation to the effect
that she had attended all the meetings which she had been
actually given notice and that notice issued by the Secretary is
politically motivated and issued as a design to keep her off the
next meetings. Ext.P1 is a copy of the minutes of the Welfare
Standing Committee dated 17.3.2006. Ext.P2 is a copy of the
request made by the petitioner to the Secretary to allow her to
put dates of receipt of notices of the meetings against her
signature. Ext.P3 is a copy of the letter of intimation sent by the
first respondent to the petitioner. Ext.P4 is a copy of the
explanation submitted by the petitioner to Ext.P3. Ext.P5 is a
copy of O.P.No.45/2006 which the petitioner has submitted
before the f Election Commission. Ext.P6 is a copy of I.A.
No.32/2006 submitted by the petitioner before the Election
Commission for permission to the petitioner for continuing as a
member. Ext.P7 is a copy of the counter affidavit submitted by
the first respondent to Ext.P6. It is noted that in Ext.P7 the
statement of the petitioner that she had attended meetings of
WPC No.29144/2006 & another 7
standing committee held on 10.4.2006 and 17.5.2006 is not
denied. Ext.P8 is a copy of the minutes of the meeting of the
Standing committee held on 8.5.2006. Ext.P9 is a copy of the
order of the Election Commissioner dismissing Ext.P6 I.A. It is
challenging Ext.P9 order on various grounds that the petitioner
has filed this writ petition seeking the following reliefs:
i). To call for the records leading to Ext.P9 order passed by
the second respondent and to quash the same by issuing a writ of
certiorari or any other appropriate writ order or direction.
ii). To declare that the petitioner is not disqualified to be a
member by virtue of Section 35 (k) of Panchayat Raj Act.
iii). To allow I.A. No. 32 of 2006 in O.P.No.45 of 2006
before the second respondent.
iv). To direct the respondents to allow the petitioner to
continue as a member of Koduvally Block Panchayath and to keep
in abeyance all proceedings relating to declaration of election in
the Panchayat pending disposal of the Ext.P5 Original Petition
before the second respondent by issuing a writ of mandamus or
any other appropriate writ direction or order.
4. On behalf of the State Election Commission a
WPC No.29144/2006 & another 8
statements have been filed by the Standing Counsel in both these
cases. In W.P.(C) No.29144/2006 a reply affidavit has been
filed. Along with the reply affidavit, the petitioner has produced
Ext.P10, a copy of the order in I.A. No. 14/2006 in O.P.
No.4/2006 passed by the State Election Commissioner. It is
stated that in Ext.P10 that the Election Commission had, on
considerations of balance of convenience, permitted the
petitioner therein to continue in the office. It is without
considering Ext.P10, which has been approved by this court vide
Judgment in Giji Mathew v. Kerala State Election
Commission (2006 (3) KLT 141) that Ext.P9 ( in W.P.(C)
No.29144/2006) has been passed.
5. I have heard the submissions of Sri.T.G.Rajendran, the
learned counsel for the petitioner in W.P.(C) No.30881/2006,
Sri.Mohamed Rovuf K.K., the learned counsel for the petitioner in
W.P.(C) No. 29144/2006, Sri.Mathew G.Vadakkal, the learned
Government Pleader and also those of Sri.Murali Purushothaman,
the learned Standing Counsel for the Election Commission. My
attention was drawn by the Sri.Mohamed Rovuf to the judgment
WPC No.29144/2006 & another 9
of this court in Gigi Mathew’s case(supra).
6. I have considered the rival submissions in the light of
the pleadings and the ratio which emerges from the judgment of
this court in Gigi Mathew’s case (supra). It is true that this court
in Giji Mathew’s case(supra) has held that the State Election
Commission has power to pass an order to put back a person,
who by the happenings of the event provided for by Section 35
(k) followed by intimation given to him under Section 37 (2) has
ceased to hold office. But however, on account of the reasons
stated in the statements filed on behalf of the State Election
Commission, which were urged before me by Sri.Murali
Purushothaman and supported by the documents produced by
the Election Commissioner and also the reasons stated in the
judgment of this court in Shaila v. Kerala State Election
Commission (2002 (3) KlT 857), I am not inclined to grant
relief to the petitioners in either of the petitions. But as far as
W.P.(C) NO.29144/2006 is concerned, I record the assurance
given by Sri.Murali Purushothaman that till final orders are
passed in the O.P. Which is pending before the State Election
WPC No.29144/2006 & another 10
Commission, the Election Commission will not take any steps for
conducting Election in Ward No. X of Kuduvally Block Panchayat.
Both the writ petitions are dismissed without granting
reliefs. But the undertaking given by the Standing Counsel for
Election Commission in W.P.(C) No. 29144/2006 shall be
honoured by the Election Commissioner.
PIUS C.KURIAKOSE
Judge
dpk