{"id":269966,"date":"2007-12-10T00:00:00","date_gmt":"2007-12-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pookkottil-sadanandan-vs-the-kerala-state-election-on-10-december-2007-2"},"modified":"2014-04-07T14:33:43","modified_gmt":"2014-04-07T09:03:43","slug":"pookkottil-sadanandan-vs-the-kerala-state-election-on-10-december-2007-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pookkottil-sadanandan-vs-the-kerala-state-election-on-10-december-2007-2","title":{"rendered":"Pookkottil Sadanandan vs The Kerala State Election … on 10 December, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Pookkottil Sadanandan vs The Kerala State Election … on 10 December, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C) No. 35487 of 2007(Y)\n\n\n1. POOKKOTTIL SADANANDAN,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE KERALA STATE ELECTION COMMISSION,\n                       ...       Respondent\n\n2. SRI.MUHAMMED, DEW DALE,\n\n                For Petitioner  :SRI.K.RAMAKUMAR (SR.)\n\n                For Respondent  :SRI.P.V.KUNHIKRISHNAN\n\nThe Hon'ble MR. Justice PIUS C.KURIAKOSE\n\n Dated :10\/12\/2007\n\n O R D E R\n                        PIUS C. KURIAKOSE, J.\n                          -------------------------------\n                 W.P.(C) No. 35487 and 35500 OF 2007\n                        -----------------------------------\n                Dated this the 10th day of December, 2007\n\n                                 JUDGMENT\n<\/pre>\n
      These Writ Petitions filed by the two elected members of<\/p>\n
Koduvally Grama Panchayat in Kozhikode District (elected in bye<\/p>\n
elections) representing ward Nos.2 and 14 respectively raise common<\/p>\n
questions and hence are being disposed of by this common judgment.<\/p>\n
      2. The Kerala State Election Commission is the 1st respondent in<\/p>\n
both the cases. Under challenge in these cases are orders passed by<\/p>\n
the Election Commission on IAs filed in original petitions filed by the<\/p>\n
party respondents under Section 36(1) read with Section 35 (q) of the<\/p>\n
Panchayat Raj Act seeking declarations that the petitioners are<\/p>\n
disqualified to continue as members of the Grama Panchayat. Ext.P1 is<\/p>\n
copy of the original petition filed by the 2nd respondent in WP(C)<\/p>\n
No.35500 of 2007 and Ext.P1 in WP(C) No.35487 of 2007 is copy of the<\/p>\n
original petition which was filed by the 2nd respondent in that case.<\/p>\n
Ext.P2 in both these cases are copies of the IAs and Exts.P4 and P5<\/p>\n
respectively in WP(C) No.35487 and 35500 of 2007 are copies of orders<\/p>\n
passed by the 1st respondent Election Commission are under challenge<\/p>\n
in these writ petitions. Challenging the impugned orders it is urged in<\/p>\n
the writ petitions that the power conferred on the State Election<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                     2<\/span><\/p>\n
Commission under Section 36 of the Kerala Panchayat Raj Act to pass<\/p>\n
interim orders is confined to deciding whether the member who is<\/p>\n
sought to be disqualified should or not continue in office. Therefore<\/p>\n
while it is open to the Election Commission to decide that a member is<\/p>\n
not entitled to continue in office pending adjudication of the question<\/p>\n
whether he is liable to be disqualified as a member, the Commission<\/p>\n
does not have the power to decide that a person can continue as<\/p>\n
member but cannot exercise the rights attached to his office as a<\/p>\n
member including the right to vote in committee meetings. In the instant<\/p>\n
cases what has been done by the Election Commission is to permit the<\/p>\n
petitioners to continue in office participate in meeting, draw sitting fees<\/p>\n
etc., but without right to vote. The impugned orders to the extent they<\/p>\n
restrain the petitioners from exercising their voting rights in the Council<\/p>\n
is without jurisdiction and amounts to a fundamental error vitiating the<\/p>\n
decision making process warranting invocation of powers of judicial<\/p>\n
review by this Court. It is urged that the petitioners were elected in bye<\/p>\n
elections and with their elections the political equations in the Council<\/p>\n
has changed and the ruling left democratic front has lost its majority. By<\/p>\n
passing the impugned orders and restraining the petitioners from<\/p>\n
exercising their voting rights the Election Commission has frustrated the<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                     3<\/span><\/p>\n
will of the people who voted the petitioners in as members. It is urged<\/p>\n
that the findings in the impugned orders are to the effect that the<\/p>\n
petitioners have already entailed disqualification due to their non-<\/p>\n
submission of declaration of assets and liabilities within the time limit<\/p>\n
prescribed under Section 159 of the Panchayat Raj Act to the<\/p>\n
competent authority namely the Deputy Director of Panchayats. Such a<\/p>\n
finding should not have been entered in an interlocutory proceeding<\/p>\n
since the finding that an enquiry to be conducted in the original petitions<\/p>\n
will be meaningless. In both the writ petitions detailed counter affidavits<\/p>\n
have been filed by (the 2nd respondent) the persons who filed the<\/p>\n
original petitions before the Election Commission justifying the<\/p>\n
impugned orders.\n<\/p>\n
       3. I have heard the submissions of Sri.K.Ramkumar, Senior<\/p>\n
Counsel on behalf of the petitioners in both the cases and those of<\/p>\n
Sri.M.K.Damodaran, Senior Counsel for the 2nd respondent in WP(C)<\/p>\n
No.35487 of 2007 and Sri.P.V.Kunhikrishnan, learned counsel for the<\/p>\n
2nd   respondent   in   WP(C)    No.35500     of  2007    and   Sri.Murali<\/p>\n
Purushothaman, learned Standing Counsel for the State Election<\/p>\n
Commission.\n<\/p>\n
       4. Sri.K.Ramkumar Senior Counsel addressed me extensively on<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                    4<\/span><\/p>\n
the facts obtaining in both the cases and particularly WP(C) No.35500 of<\/p>\n
2007. My attention was drawn by the learned Senior Counsel to Section<\/p>\n
35(1) (q), 159 and 36(2) of the Panchayat Raj Act. Learned Counsel<\/p>\n
would submit that the power under Section 36(2) is the power to pass an<\/p>\n
interim order restraining the allegedly disqualified member from<\/p>\n
exercising his powers as member.        He pointed out that the interim<\/p>\n
orders sought for in the IAs which were filed by the party respondents<\/p>\n
were also in the same lines. The Election Commission is not a full<\/p>\n
fledged civil court vested with inherent powers, instead it was only a<\/p>\n
statutory authority conferred with certain enumerated procedural powers<\/p>\n
of the Civil Court by virtue of Section 139 of the Panchayat Raj Act.<\/p>\n
Therefore having decided to permit the petitioners to continue to act as<\/p>\n
members by attending the meetings, participating in the deliberations<\/p>\n
and by collecting sitting fees, the Election commission was not justified<\/p>\n
in placing fetters on the powers the petitioners enjoy as members. The<\/p>\n
Election Commission according to the learned Senior Counsel had no<\/p>\n
power to impose restrictions on the powers and privileges of the<\/p>\n
petitioners as members of the Panchayat having declined to restrain the<\/p>\n
petitioners from continuing as members. The learned Senior Counsel<\/p>\n
drew my attention to the defence of the petitioners to the allegations and<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                     5<\/span><\/p>\n
submitted that the petitioners definite case is that they had sent the<\/p>\n
asset and liability statements to the competent authority within the<\/p>\n
prescribed period under postal certificate.          The Senior Counsel<\/p>\n
submitted that when a letter or an article is sent by under postal<\/p>\n
certificate and when it is shown hat the letter or the article had been<\/p>\n
addressed properly, there is justification for presuming that the article or<\/p>\n
letter reached the addressee duly.        The burden to show that the<\/p>\n
petitioners have entailed disqualification is on the party respondents and<\/p>\n
that burden has not been discharged by them.                 The Election<\/p>\n
Commission has cast burden of proof wrongly and this has resulted in<\/p>\n
prejudice to the petitioners. Learned Senior Counsel concluded that in<\/p>\n
any event the findings presently entered will render the adjudication to<\/p>\n
be conducted by the 1st respondent meaningless.\n<\/p>\n
       5. Sri.M.K.Damodaran, Senior counsel could meet                  the<\/p>\n
submissions of Mr.K.Ramkumar. The learned Senior counsel submitted<\/p>\n
that there is no infirmity about the impugned interim orders warranting<\/p>\n
interference by this Court under its extraordinary constitutional<\/p>\n
jurisdiction. Senior counsel submitted that it was obligatory that the<\/p>\n
candidates submitted their asset and liability statements under Section<\/p>\n
159 in this case on or before 18.7.07. Ext.R2(a) application in WP(C)<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                     6<\/span><\/p>\n
No.35487 of 2007 was submitted by the 2nd respondent in that case<\/p>\n
before the competent authority for getting information regarding<\/p>\n
submission of asset and liability statement by the petitioner in that case.<\/p>\n
To Ext.R2(a), Ext.R2(b) reply dt.25.07.07 was received. According to<\/p>\n
Ext.R2(b) the writ petitioner had not filed any asset-liability statement till<\/p>\n
25.07.07. It was in the light of Ext.R2(b) that the original petition was<\/p>\n
filed by his client. According to learned Senior counsel it is his client<\/p>\n
who should be aggrieved by Ext.P4 since the proper order to be passed<\/p>\n
was an order restraining the petitioner from exercising any of his powers<\/p>\n
and privileges as member of the Panchayat. Senior counsel submitted<\/p>\n
that the impugned order is well within the powers of the Election<\/p>\n
Commission under Section 36(2). Any authority which has power to<\/p>\n
pass certain orders should be conceded ancillary power for the effectual<\/p>\n
exercise of the main power which is already vested in him. Learned<\/p>\n
Senior counsel submitted that the Deputy Director of Panchayat, the<\/p>\n
competent authority to receive the asset and liability statement under<\/p>\n
Section 159 ought to have been made a party to this Writ Petition and<\/p>\n
hence this Writ Petition is bad for non-joinder of necessary parties. As<\/p>\n
for the petitioner’s claim that he had sent the statement of assets and<\/p>\n
liabilities under certificate of posting the learned Senior counsel<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                     7<\/span><\/p>\n
submitted that it is quite surprising that the petitioner would post the<\/p>\n
articles from a far away post office bye passing 3 or 4 post offices which<\/p>\n
are nearer to his own place.\n<\/p>\n
       6. Referring to the post office guide containing rules and<\/p>\n
regulations relating to inland and foreign post published by the Director<\/p>\n
General of Posts and Telegraphs, Government of India, the learned<\/p>\n
Senior counsel submitted that a postal certificate only certifies that a<\/p>\n
letter or article has been posted and it will not mean that letters and<\/p>\n
articles in respect of which the certificate is issued have been affixed<\/p>\n
with postage stamp nor will it guarantee in any way that the despatch of<\/p>\n
the articles entered in the certificate despatched on the same day.<\/p>\n
Counsel also submitted that the postal certificate is not a proof<\/p>\n
regarding the nature of the contents. It was very suspicious that in<\/p>\n
these days when people use courier services or registered posts,<\/p>\n
petitioners have preferred to send by certificate of posting and that too<\/p>\n
from a far away post office. Learned Senior Counsel would fortify his<\/p>\n
submissions on the authority of a Division Bench judgment of this Court<\/p>\n
in Thiruvananthapuram District Co-operative Bank v. State of<\/p>\n
Kerala<\/a> [1992 (1) KLT 381] and also the judgment of a learned Single<\/p>\n
Judge of this Court in Giji Mathew v. KeralaState Election<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                       8<\/span><\/p>\n
Commission [2006(3) KLT 141].\n<\/p>\n
       7. Sri.Murali Purushothaman, learned Standing Counsel for the<\/p>\n
Election Commission and Sri.P.V.Kunhijkrishnan would endorse the<\/p>\n
submissions of Mr.M.K.Damodaran. Mr.Murali Purushothaman would<\/p>\n
supply to me photocopies of all the documents which were before the<\/p>\n
Election Commission.\n<\/p>\n
       8. Having anxiously considered the rival submissions addressed<\/p>\n
at the Bar in the light of the pleadings raised by the parties, the<\/p>\n
documents on record before the Election Commission (copies of which<\/p>\n
were supplied to me), the statutory provisions and the judicial<\/p>\n
precedents cited before me by Sri.M.K.Damodaran, Senior Counsel, I<\/p>\n
am of the view that there is no warrant for exercising the extraordinary<\/p>\n
powers of judicial review on the impugned orders. It is difficult to accept<\/p>\n
the argument of Sri.K.Ramkumar that under Section 36(2)<\/a> the Election<\/p>\n
Commission had power only to restrain the petitioners absolutely from<\/p>\n
exercising powers and privileges as members or not to restrain them at<\/p>\n
all. It is certainly true that the Election Commission is not a full fledged<\/p>\n
court and is governed by the Civil Procedure Code for matters<\/p>\n
specifically enumerated in Section 139<\/a> only. But, at the same time, the<\/p>\n
legal position is trite that every authority including an administrative<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                     9<\/span><\/p>\n
authority which has certain powers should be conceded, ancillary<\/p>\n
powers for effectively exercising the powers statutorily vested on the<\/p>\n
authority.      In  fact  the    Division  Bench     of  this   Court   in<\/p>\n
Thiruvananthapuram District Co-operative Bank’s (supra) case<\/p>\n
refers to a number of judicial precedents and also the basic principles of<\/p>\n
construction of statute law and also the views expressed by celebrated<\/p>\n
authors; Craies and Souther Land in their works on statute, law and<\/p>\n
statutory construction respectively. The argument of Mr.Ramkumar that<\/p>\n
burden of proof has been wrongly cast by the Election Commission on<\/p>\n
his clients who are the respondents, has only superficial attractiveness.<\/p>\n
A careful reading of the impugned orders will show that the Election<\/p>\n
Commission      preferred  the   information   furnished  to   the   party<\/p>\n
respondents under the Right to Information Act<\/a> to the postal certificates<\/p>\n
produced by the writ petitioners and held that a strong prima facie case<\/p>\n
is made out for granting interim orders.       As rightly pointed out by<\/p>\n
Sri.M.K.Damodaran, the Election Commission could have allowed IAs in<\/p>\n
full and restrained the petitioners absolutely from exercising their rights<\/p>\n
and privileges as members. But mindful of the situation that the<\/p>\n
Commission was dealing with IAs and was passing interim orders the<\/p>\n
Commission thought it fit not to grant an absolute restraining order.<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                     10<\/span><\/p>\n
Obviously, it was the interest of the constituencies, i.e., the electorate of<\/p>\n
the wards represented by the petitioners that was taking into account by<\/p>\n
the Election Commission while deciding not to pass a completely<\/p>\n
restraining order.\n<\/p>\n
       9. I do find some merit in the submission of Mr.Ramkumar that the<\/p>\n
Election Commission appears to have found finally that the writ<\/p>\n
petitioners did not submit their asset-liability statement within the<\/p>\n
stipulated time. But, those finding shall be understood by everybody<\/p>\n
concerned as provisional observations only for the purpose of the IAs.<\/p>\n
In other words those “findings” will not qualify as findings in a strict<\/p>\n
judicial sense. Even as I decline to set aside the impugned orders, I<\/p>\n
direct the 1st respondent Election Commission to finalise                the<\/p>\n
adjudication and dispose of the original petitions in both these writ<\/p>\n
petitions at the earliest and at any rate within three months of receiving<\/p>\n
copy of this judgment.      Election Commission shall afford sufficient<\/p>\n
opportunity to the writ petitioners for substantiating their claim that they<\/p>\n
had sent the asset-liability statements to the competent authority by<\/p>\n
adducing whatever evidence they have at their command. The Election<\/p>\n
Commission will not be influenced in any manner by the impugned<\/p>\n
orders or by the confirmation of the impugned orders by this Court while<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                                      11<\/span><\/p>\n
deciding the original petitions finally.\n<\/p>\n
      The parties will appear before the Election Commission on<\/p>\n
17.12.07.\n<\/p>\n
\n
                                        PIUS C. KURIAKOSE, JUDGE
\nbtt<\/p>\n
WPC Nos.35487 & 35500 of 2007
\n                               12<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Pookkottil Sadanandan vs The Kerala State Election … on 10 December, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-269966","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nPookkottil Sadanandan vs The Kerala State Election ... on 10 December, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pookkottil-sadanandan-vs-the-kerala-state-election-on-10-december-2007-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pookkottil Sadanandan vs The Kerala State Election ... on 10 December, 2007 - 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