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Kerala High Court
V.Gopalakrishnan vs The State Election Commission on 8 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 11637 of 2008(I)


1. V.GOPALAKRISHNAN, VICE PRESIDENT (MEMBER
                      ...  Petitioner

                        Vs



1. THE STATE ELECTION COMMISSION,
                       ...       Respondent

2. V.B.ANILKUMAR, (MEMBER), WARD NO.4,

3. KANJIRAMKULAM GRAMA PANCHAYAT,

                For Petitioner  :SRI.N.NANDAKUMARA MENON (SR.)

                For Respondent  :SRI.ASP.KURUP

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :08/03/2010

 O R D E R
                        ANTONY DOMINIC, J.
                   -------------------------
               W.P.(C.) Nos.11637 & 11860 of 2008
             ---------------------------------
              Dated, this the 8th day of March, 2010

                           J U D G M E N T

In WP(C) No.11637/2008, the order under challenge is Ext.P7,

and in WP(C) No.11860/2008, the order under challenge is Ext.P5.

Both these orders are rendered by the 1st respondent, the State

Election Commission, holding that the petitioners who were the Vice

President and President respectively of the Kanjiramkulam Grama

Panchayat are disqualified under Section 35(o) of the Kerala

Panchayat Raj Act.

2. Briefly stated, the facts of the case are that, the 2nd

respondent in WP(C) No.11637/2008, filed O.P.No.4/2007 under

Section 6 of the Kerala Panchayat Raj Act alleging that the

petitioner, the Vice President of the Panchayat, is liable to be

disqualified under Section 35(o) of the Act on the ground of being

liable for the loss caused to the Panchayat. This allegation was

raised on the basis that on 13/02/2006 & 15/03/2006, the

petitioner received sitting fee for having attended the meeting of the

Panchayat and also travelling allowance on the ground that he had

WP(C) Nos.11637 & 11860/2008
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undertaken travel in his official capacity.

3. Similarly in WP(C) No.11860/2008 the allegation was

that on 30/05/2006 & 12/06/2006, the petitioner therein, the

President of the Panchayat, received sitting fee for having attended

the meeting of the Panchayat and also received travelling allowance

on the basis that he had undertaken travel in his official capacity. It

is further alleged that he had received sitting fee for having

attended the Panchayat Committee Meeting on 25/06/2006, while

there was no such meeting it being a Sunday.

4. Evidence was adduced before the State Election

Commission, and the State Election Commission by Ext.P7 order in

WP(C) No.11637/2008 and Ext.P5 order in WP(C) No.11860/2008

held that the petitioners herein are liable for the loss caused to the

Panchayat and were therefore, ordered to be disqualified under

Section 35(o) of the Kerala Panchayat Raj Act.

5. The main contention raised by the learned senior counsel

appearing for the petitioners is relying on Section 35 (o) of the

Kerala Panchayat Raj Act itself, which provides that subject to the

provisions of Section 36 or Section 102, a member shall cease to

hold Office as such, if he is liable for the loss, waste or misuse

WP(C) Nos.11637 & 11860/2008
-3-

caused to the Panchayat. According to the learned senior counsel,

the question of a member becoming liable for the loss arises only

after audit under Section 215 is conducted. It is stated that in terms

of Section 215(5), the auditors shall specify in the report under sub

Section (4) all cases of loss caused to the Panchayat by negligence

or misconduct of the authorities of the Panchayat. It is stated that

only after an audit is conducted and the liability is fixed and

proceedings are finalised, can alone a petition urging ground under

Section 35(o) be filed. It is stated that in these cases, audit has not

been conducted and therefore the finding of liability under Section

35(o) has been entered into by the State Election Commission

without jurisdiction.

6. Although I have given my thoughtful consideration to the

contention of the learned senior counsel appearing for the

petitioners, I am unable to agree with him. A reading of Section 35

(o) shows that a member shall cease to hold office, if he is liable for

the loss caused to the Panchayat. The power to declare a member

disqualified under this section is conferred on the State Election

Commission. Section 35(o) is one of the grounds available and

therefore it is perfectly within the jurisdiction of the Commission to

WP(C) Nos.11637 & 11860/2008
-4-

decide as to whether the ground urged has been made out.

7. Further the applicability of Section 215 of the Kerala

Panchayat Raj Act in a proceedings of this nature, has been urged

before this Court in WP(C) No.2976/2010, and this contention has

been dealt with and rejected by this Court in all manner, in the

judgment dated 30/01/2010. Relevant part of the judgment reads

as under:-

“The last contention was with reference to Section 215 of
the Kerala Panchayat Raj Act. Section 215 provides for accounts
and audit. Sub Section 11 provides that an aggrieved person,
may make an application to the District Court. Sub Section 13
provides that appeal against the order of the District Court will
lie to the High Court. Learned counsel contended that unless in
an audit as contemplated in Section 215 is held and that the
audit report has attained finality, no proceedings under Section
35(o) will lie against a member. On a reading of Section 35, I
am not able to infer such a conclusion. Section 35(o) only
provides for subject to the provisions of Section 36, a member
shall cease to hold office if he is liable for the loss caused to the
Panchayat. Therefore, on an application made under Section 36,
if the petitioner is able to substantiate his case that a member
has caused loss to the Panchayat, the Election Commission is
perfectly within its rights to entertain a plea under Section 35(o)
of the Act. I also notice that under Section 34 providing for
disqualification of candidates, sub Section (p) requires that a
person should have been found liable for loss to suffer
disqualification as provided there in. Therefore, the

WP(C) Nos.11637 & 11860/2008
-5-

terminologies in Section 34 and 35 being different, and in view
of the only requirement of loss caused to the Panchayat as
provided under Section 35(o), I am not in a position to accept
this plea either.”

8. I am also not impressed on the contention of the learned

senior counsel appearing for the petitioners that realisation of loss

and fixation of liability are the functions of the Ombudsman for

Local Self Government Institutions, and therefore, unless in a

proceedings before the Ombudsman, the liability is fixed,

proceedings cannot be initiated under Section 36 of the Act. In my

view, the reason which I assigned for rejecting the contention

relying on Section 215 is an answer to this contention also.

In the result, I do not find any merit in the contentions raised

against the impugned orders. Therefore, these writ petitions are

only to be dismissed and I do so.

(ANTONY DOMINIC, JUDGE)

jg


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