{"id":31565,"date":"2010-07-02T00:00:00","date_gmt":"2010-07-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-krishna-kumar-vs-the-kerala-state-election-on-2-july-2010"},"modified":"2016-04-07T12:57:27","modified_gmt":"2016-04-07T07:27:27","slug":"c-krishna-kumar-vs-the-kerala-state-election-on-2-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-krishna-kumar-vs-the-kerala-state-election-on-2-july-2010","title":{"rendered":"C.Krishna Kumar vs The Kerala State Election … on 2 July, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
C.Krishna Kumar vs The Kerala State Election … on 2 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 8150 of 2010(P)\n\n\n1. C.KRISHNA KUMAR, MEMBER (UNDER\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE KERALA STATE ELECTION COMMISSION,\n                       ...       Respondent\n\n2. THE SPECIAL GRADE SECRETARY,\n\n                For Petitioner  :SRI.V.CHITAMBARESH (SR.)\n\n                For Respondent  :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM\n\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :02\/07\/2010\n\n O R D E R\n                      T.R. Ramachandran Nair, J.\n                   - - - - - - - - - - - - - - - - - - - - - - - -\n                      W.P.(C) No. 8150 of 2010-P\n                   - - - - -- - - - - - - - - - - - - - - - - - - - -\n                 Dated this the 2nd day of July, 2010.\n\n                                 JUDGMENT\n<\/pre>\n
       The petitioner is a member from Ward No.8 of Kadambanad Grama<\/p>\n
Panchayat.    Aggrieved by the intimation given by the Secretary of the<\/p>\n
Panchayat that he has ceased to be a member in the Panchayat, under<\/p>\n
Section 37(2) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to<\/p>\n
as ‘the Act’), he approached the State Election Commission by filing<\/p>\n
O.P.No.6\/2009. The Commission, by the impugned order Ext.P4, upheld<\/p>\n
the communication issued by the Secretary, which is under challenge in this<\/p>\n
writ petition.\n<\/p>\n
       2. The intimation issued by the Secretary has been produced as<\/p>\n
Ext.P1, wherein it is mentioned that since the petitioner had not attended the<\/p>\n
meetings of the Committee of the Panchayat held after 16.10.2008 for a<\/p>\n
period of three months (five ordinarily meetings and one urgent meeting) in<\/p>\n
spite of receipt of notice, he has ceased to be a member under Section 35<\/p>\n
(k) of the Act, from 16.1.2009.\n<\/p>\n
       3.   Heard learned Senior Counsel for the petitioner Shri V.<\/p>\n
Chitambaresh, Shri Murali Purushothaman, learned Standing Counsel for<\/p>\n
wpc 8150\/2010                          2<\/span><\/p>\n
the Election Commission and Shri K. Shaj, learned counsel for the second<\/p>\n
respondent.\n<\/p>\n
      4.   Learned Senior Counsel for the petitioner submitted that the<\/p>\n
intimation itself is not in tune with the provisions of Section 35(k) of the<\/p>\n
Act. The notice has not been properly served for the meetings concerned,<\/p>\n
by the Secretary of the Panchayat which amounts to infraction of the<\/p>\n
procedure laid down in Rule 3(1)(d) of the Kerala Panchayat Raj (Manner<\/p>\n
of Service of Notices) Rules, 1996 (for short ‘the Rules’). It is pointed out<\/p>\n
that certain notices have been served by affixture and the said method can<\/p>\n
be resorted to only if the the means of service of notice under Rule 3(1)(a),<\/p>\n
(b) and (c) are exhausted. The employee of the Panchayat who was deputed<\/p>\n
for serving notice, has clearly acted in violation of the provisions of these<\/p>\n
rules.\n<\/p>\n
      5. The first question raised is about the validity of the intimation<\/p>\n
given as Ext.P1. The relevant provision is Section 35(k) of the Act which<\/p>\n
along with the provisos, are reproduced below:\n<\/p>\n
             “35.     Disqualifications of members.– Subject to the<\/p>\n
      provisions of Section 36 or Section 102, a member shall cease to hold<\/p>\n
      office as such, if he–<\/p>\n
             xxxxxxxxx xxxxxxxx<\/p>\n
wpc 8150\/2010                          3<\/span><\/p>\n<\/blockquote>\n
             (k) absents himself without the permission of the Panchayat<\/p>\n
       concerned from        its meeting or the meeting of the Standing<\/p>\n
       Committee thereof for a period of three consecutive months reckoned<\/p>\n
       from the date of commencement of his term of office or of the last<\/p>\n
       meeting that he attended, or of the restoration to office as member<\/p>\n
       under sub-section (1) of Section 37, as the case may be, or if within<\/p>\n
       the said period, only in less than three meetings of the Panchayat or<\/p>\n
       of the Standing Committee as the case may be, have been held,<\/p>\n
       absents himself from three consecutive meetings held after the said<\/p>\n
       date:\n<\/p><\/blockquote>\n
             Provided that no meeting from which a member absented<\/p>\n
       himself shall be counted against him under this clause if.-<\/p>\n<\/blockquote>\n
                    (i) due notice of that meeting was not given to him; or’<\/p>\n<\/blockquote>\n
                    (ii) the meeting was held after giving shorter notice than<\/p>\n
       that prescribed for an ordinary meeting; or<\/p>\n<\/blockquote>\n
                    (iii) the meeting was held on a requisition of members;<\/p>\n
       or:\n<\/p><\/blockquote>\n
                    Provided further that no permission shall be granted by<\/p>\n
       the Panchayat to a member for absenting himself from meetings of<\/p>\n
       the Panchayat or of the Standing Committee for a continuous period<\/p>\n
       of more than six months.”\n<\/p><\/blockquote>\n
It is pointed out that going by the first limb of the section, the absence<\/p>\n
should be for the       meetings of the Panchayat for a period of three<\/p>\n
consecutive months reckoned from the date of commencement of his term of<\/p>\n
wpc 8150\/2010                          4<\/span><\/p>\n
office or of the last meeting that he attended. Herein, the last meeting he<\/p>\n
attended was on 16.10.2008. If three consecutive months are counted from<\/p>\n
October 2008, it will be over only by the end of January 2009. Herein, the<\/p>\n
notice Ext.P1 is dated 24.1.2009, prior to the expiry of the three months<\/p>\n
period. The date on which the last meeting was conducted is 12.1.2009.<\/p>\n
Therefore, it is submitted that the notice itself is illegal. Both parties relied<\/p>\n
upon various decisions of this Court in this context.       I shall now refer to<\/p>\n
the principles discussed in the decisions cited at the Bar.<\/p>\n
      6. In Surabhi v. Special Tahsildar (Land Acquisition) Kasaragod,<\/p>\n
(2010 (1) KHC 68), the method of reckoning the period “three months”<\/p>\n
under Section 28A(1) of the Land Acquisition Act, was considered. It was<\/p>\n
held that the word ‘month’ has to be reckoned according to the British<\/p>\n
calender. Para 3 of the judgment is reproduced below:<\/p>\n
        “Petitioner applied on 20th November, 2004 relying on an award<\/p>\n
        passed by the Court on 21st August, 2004. Section 28A(1) of the LA<\/p>\n
        Act provides that the written application under that provision shall<\/p>\n
        be made within three months from the date of the award of the<\/p>\n
        Court. The word ‘month’ is not defined in the LA Act. Therefore,<\/p>\n
        the definition of that term in Section 3(35) of the General Clauses<\/p>\n
        Act, 1897 applies. Hence, the month has to be reckoned according<\/p>\n
        to the British calendar. Therefore, the period of three months for<\/p>\n
wpc 8150\/2010                         5<\/span><\/p>\n
       the purpose of an application under Section 28A (1) has to be<\/p>\n
       reckoned according to the British calendar applying Section 3(35)<\/p>\n
       of the General Clauses Act. The award of Court relied on by the<\/p>\n
       petitioner was delivered on 21st August, 2004. By the proviso to<\/p>\n
       Section 28A (1) of the LA Act, the date of pronouncement of the<\/p>\n
       award by the Court shall be excluded in computing the period of<\/p>\n
       three months.      Therefore, the period of three months for the<\/p>\n
       petitioner to apply under Section 28A(1) on the basis of the award<\/p>\n
       relied on by her ends on 22nd November, 2004. The petitioner’s<\/p>\n
       application filed on 20th November, 2004 was, therefore, well within<\/p>\n
       time.”\n<\/p><\/blockquote>\n
This Court, thus relying upon Section 3(35) of the General Clauses Act,<\/p>\n
held that the period has to be reckoned according to the British calendar.<\/p>\n
But one    important thing to be noticed is the wording of the section.<\/p>\n
Therein, going by the provisions of Section 28A(1), a written application<\/p>\n
has to be made within three months “from the date of the award” of the<\/p>\n
Court.\n<\/p>\n
      7. Daryoth Singh v. Union of India and others (AIR 1973 Delhi<\/p>\n
58) is a case where an interpretation of a clause in a decree came up for<\/p>\n
consideration. The operative part of the decree is as under:<\/p>\n
      “It is ordered that decree of ejectment in respect of Garden and land<\/p>\n
      together with superstructure and two wells is passed against the<\/p>\n
wpc 8150\/2010                          6<\/span><\/p>\n
       defendant. It is further ordered that the decree shall not be executed<\/p>\n
       till 15.7.1960 and the plaintiff shall pay Rs.4500\/- to the defendant.<\/p>\n
       So long the plaintiff does not pay Rs.4500\/- to the defendant two<\/p>\n
       months prior to 15.7.1960 he shall not be entitled to possession.”<\/p>\n<\/blockquote>\n
Therein, the deposit was made on 16.5.1960. It was contended that the<\/p>\n
deposit had to be made on 15.5.1960. This aspect was considered in para<\/p>\n
15 of the judgment in the following words:\n<\/p>\n
         “The deposit of the amount of Rs.4500\/- was actually made on May<\/p>\n
         16, 1960. It has, therefore, to be seen whether the deposit was<\/p>\n
         made “two months prior to 15.7.1960”. In its ordinary accepted<\/p>\n
         sense the expression “month” means a “calendar month” and not a<\/p>\n
         “lunar month”. As to how a calendar month is to be counted from a<\/p>\n
         date which is not the first of the month has been described in<\/p>\n
         paragraph 143 of Halsbury’s Laws of England Volume 37 (Third<\/p>\n
         Edition) in the following words:\n<\/p><\/blockquote>\n
         “When the period prescribed is a calendar month running from any<\/p>\n
         arbitrary date the period expires with the day in the succeeding<\/p>\n
         month immediately preceding the day corresponding to the date<\/p>\n
         upon which the period starts; save that, if the period starts at the end<\/p>\n
         of a calendar month which contains more days than the next<\/p>\n
         succeeding month the period expires at the end of the latter month”.<\/p>\n
         Thus one month counted from July 15, 1960 would be on June 16<\/p>\n
         and the second month counted from June 16 would be on May 17,<\/p>\n
         1960. Evidently, therefore, the deposit made on May 16, 1960 was<\/p>\n
wpc 8150\/2010                          7<\/span><\/p>\n
         two months prior to July 15, 1960.”<\/p><\/blockquote>\n
       8. In fact, a similar question came up for consideration before the<\/p>\n
Apex Court in Bibi Salma Khatoon v. State of Bihar and others<\/a> {(2001)<\/p>\n
7 SCC 197}.The interpretation of Section 16(3) of the Bihar Land Reforms<\/p>\n
(Fixation of Ceiling Area and Acquisition of Surplus Land), Act 1961 arose<\/p>\n
for consideration. Therein, the crucial provision considered is Section 16<\/p>\n
(3)(i) which is reproduced below:\n<\/p>\n
         “16.(3)(i) When any transfer of land is made after the<\/p>\n
         commencement of this Act to any person other than a co-sharer or a<\/p>\n
         raiyat of adjoining land, any co-sharer of the transferor or any raiyat<\/p>\n
         holding land adjoining the land transferred, shall be entitled,<\/p>\n
         within three months of the date of registration of the documents<\/p>\n
         of transfer, to make an application before the Collector in the<\/p>\n
         prescribed manner for the transfer of the land to him on the terms<\/p>\n
         and conditions contained in the said deed:\n<\/p><\/blockquote>\n
                Provided that no such application shall be entertained by the<\/p>\n
         Collector unless the purchase money together with a sum equal to<\/p>\n
         ten per cent thereof is deposited in the prescribed manner within the<\/p>\n
         said period.”\n<\/p><\/blockquote>\n
The facts of the case show that the sale deed was registered on 30.1.1998<\/p>\n
and the application before the Collector to enforce the right of pre-emption<\/p>\n
was filed on 30.4.1998. The question arose, what is meant by the word<\/p>\n
wpc 8150\/2010                         8<\/span><\/p>\n
‘month’ and how the computation has to be made. “Their Lordships held<\/p>\n
thus in para 8:\n<\/p>\n
       “In Halsbury’s Laws of England, 4th Edn. para 211 method of<\/p>\n
       computation of month is given as follows:\n<\/p><\/blockquote>\n
            “211. Calendar month running from arbitrary date .– When<\/p>\n
            the period prescribed is a calendar month running from any<\/p>\n
            arbitrary date the period expires upon the day in the<\/p>\n
            succeeding month corresponding to the date upon which the<\/p>\n
            period starts, save that, if the period starts at the end of a<\/p>\n
            calendar month which contains more days than the next<\/p>\n
            succeeding month, the period expires at the end of that<\/p>\n
            succeeding month.\n<\/p><\/blockquote>\n
                   If a period of one calendar month includes the last day of<\/p>\n
            February there must be 29 or 28 days, according as the year is<\/p>\n
            or is not a leap year.”\n<\/p><\/blockquote>\n<\/blockquote>\n
       Thus computed, the application filed by the appellant on 30.4.1988<\/p>\n
       is within limitation — a period of three months of the date of the<\/p>\n
       registered sale deed dated 30.1.1988.”<\/p><\/blockquote>\n
      9. In Radhakrishnan v. Join Registrar<\/a> (2008 (2) KLT 385), this<\/p>\n
Court considered a similar issue, i.e. regarding the meaning of the words<\/p>\n
‘month’ and ‘consecutively’.     The question arose under the Kerala C-<\/p>\n
operative Societies Act, 1969 and under Section 33(1) thereof. The crucial<\/p>\n
provision under Section 33(1) reads thus: “where the committee fails to hold<\/p>\n
wpc 8150\/2010                          9<\/span><\/p>\n
its regular meeting consecutively for six months”. The last meeting of the<\/p>\n
committee was held on 7.4.2007. Action was taken under Section 33(1) of<\/p>\n
the Act on the ground that no meetings were held consecutively for six<\/p>\n
months. The order appointing the Administrator was passed on 24.10.2007<\/p>\n
and the contention was that it was passed before the expiry of six months. It<\/p>\n
was also contended by the petitioner that actually a meeting was held on<\/p>\n
31.10.2007. In para 10, this Court laid down thus:\n<\/p>\n
         “With or without the support of the decisions referred to on behalf<\/p>\n
         of the petitioner, it can be safely concluded that the term “month”<\/p>\n
         and the words “six months” in S.33(1) mean “month” or “six<\/p>\n
         months” as per the British calendar. The word “consecutively” is<\/p>\n
         different from the term “continuously”. “Consecution” is a train of<\/p>\n
         consequences; a series of things that follow one another,<\/p>\n
         succession of similar intervals in harmony. “Consecutive” is the<\/p>\n
         adjective form of consecution and it means, “following in regular<\/p>\n
         order or one after another, expressing consequence.     Therefore, a<\/p>\n
         regular period of a month understood as defined in the General<\/p>\n
         Clauses Act has to consecutively occur for six times to attain the<\/p>\n
         status “consecutively for six months” enjoined by S.33(1) of the<\/p>\n
         Act.   Hence, if a meeting is held in a month reckoned according to<\/p>\n
         the British Calendar, the meeting for the next consecutive month<\/p>\n
         can be held on any day in the next month reckoned as per the<\/p>\n
         British Calendar and in so calculating, if a meeting has been held in<\/p>\n
wpc 8150\/2010                         10<\/span><\/p>\n
         a particular month, the vice of S.33(1) of the Act would be<\/p>\n
         attracted only on failure to hold a meeting on any of the days of its<\/p>\n
         6th consecutive month. Hence, a meeting having been, indisputably<\/p>\n
         held on 7.4.2007, i.e. in April, 2007, S.33(1) can be invoked on the<\/p>\n
         case in hand only if no meeting was held till the end of October,<\/p>\n
         2007, i.e. 31.10.2007. Therefore, the issuance of the impugned<\/p>\n
         Ext.P7 order on 24.10.2007, i.e. before the expiry of six months, is<\/p>\n
         without jurisdiction and is, hence, void.”\n<\/p><\/blockquote>\n
It was held that the section can be invoked in the case in hand only if no<\/p>\n
meeting was held till the      end of October, 2007, i.e. 31.10.2007 and<\/p>\n
therefore issuance of the order Ext.P7 dated 24.10.2007 is before the expiry<\/p>\n
of six months which is without jurisdiction. The meaning of the term<\/p>\n
“consecutive” was also considered therein. It was also held that the word<\/p>\n
“month” and the words “six months” mean “month” or “six months” as per<\/p>\n
the British Calendar.\n<\/p>\n
      10. Herein, the question is whether the notice itself is valid or not.<\/p>\n
Shri Chitambaresh, learned Senior Counsel for the petitioner submitted that<\/p>\n
since “month” has to be reckoned as per the British Calendar, as the last<\/p>\n
meeting was held on 16.10.2008, the notice Ext.P1 which was issued prior<\/p>\n
to 31.1.2009, is invalid. Learned Standing Counsel appearing for the State<\/p>\n
Election Commission and the learned counsel for the second respondent<\/p>\n
wpc 8150\/2010                        11<\/span><\/p>\n
submitted that the provision herein, viz. Section 35(k) emphasises one<\/p>\n
more fact for reckoning the period. It has to be reckoned from the date of<\/p>\n
commencement of his term of office or of the last meeting that he attended.<\/p>\n
Since the last meeting which the petitioner had attended is on 16.10.2008,<\/p>\n
the period has to be reckoned from that date and if that be so, the notice<\/p>\n
dated 24.1.2009 is perfectly within jurisdiction, as the period of three<\/p>\n
months was over.\n<\/p>\n
      11. It is clear from the principles laid down in the above decisions<\/p>\n
that the word “month” has to be reckoned.        and the period has to be<\/p>\n
computed in the light of the language employed in the provision itself.<\/p>\n
When a particular date which is not the first of the month      has to be<\/p>\n
reckoned, the first month will have to be computed by reckoning the said<\/p>\n
factor. When the period has to be counted from a date which is not the first<\/p>\n
day of the month, the method of computation as described in Halsbury’s<\/p>\n
Laws of England has to be adopted which is the safest method.       This is<\/p>\n
clear from the decisions in Daryoth Sigh’s case (AIR 1973 Delhi 58), Bibi<\/p>\n
Salma Khatoon’s case {(2001) 7 SCC 197) and Surabhi’s case (2010 (1)<\/p>\n
KHC 68). In all these three cases the word “month” is qualified by the<\/p>\n
words “from the date” etc. Therefore, when the word “month” is followed<\/p>\n
wpc 8150\/2010                         12<\/span><\/p>\n
by such an expression indicting the date from which it has to be computed,<\/p>\n
the principles stated in the above three decisions will squarely apply and the<\/p>\n
period will expire upon the day in the succeeding month corresponding to<\/p>\n
the date upon which the period starts. Evidently, in Surabhi’s case (supra),<\/p>\n
this Court considered an identical situation like one herein, wherein under<\/p>\n
the Land Acquisition Act, viz. Section 28A(1), the application had to be<\/p>\n
made within “three months from the date of award of the court”. Therefore,<\/p>\n
the calendar month has to be reckoned from the date of the award. The<\/p>\n
Apex Court in Bibi Salma Khatoon’s case (supra), also has considered a<\/p>\n
similar issue. Therefore, the said dictum alone will apply to the facts of this<\/p>\n
case. The decision of this Court in Radhakrishnan’s case (2008 (2) KLT<\/p>\n
385), was one considering a case where the wording of Section 33(1) of<\/p>\n
the Kerala Co-operative Societies Act, 1969 was not the like one in Section<\/p>\n
35(k) of the Panchayat Raj Act. Therefore, it is in that context this Court<\/p>\n
said that when ‘month’ followed by the words, “consecutively six months”<\/p>\n
has to be reckoned based on British calendar, till the end of the six months<\/p>\n
period.\n<\/p>\n
      12. Herein, going by the facts of the case, the last meeting which the<\/p>\n
petitioner had attended, was on 16.10.2008. The notice Ext.P1 was issued<\/p>\n
wpc 8150\/2010                          13<\/span><\/p>\n
on 24.1.2009. Therefore, reckoned from the date 16.10.2008, on which he<\/p>\n
last attended the meeting and even excluding one day, the period of three<\/p>\n
months will expire before 24.1.2009, the date of Ext.P1 notice. It is not as<\/p>\n
if the Secretary should have waited till the end of January, i.e. 31.1.2009.<\/p>\n
Therefore, the contention raised by the petitioner that the notice itself is<\/p>\n
without jurisdiction, cannot be accepted.\n<\/p>\n
       13. The other issue that is raised is regarding the manner of service of<\/p>\n
notice. Herein, the crucial dates on which the meetings were held, are<\/p>\n
28.10.2008, 1.11.2008, 17.11.2008, 29.11.2008, 11.12.2008 and 12.1.2009,<\/p>\n
out of which the meeting dated 1.11.2008 was an urgent meeting.<\/p>\n
Therefore, that has to be excluded.        The petitioner did not attend the<\/p>\n
meetings held on all these dates.      The notices for the meetings held on<\/p>\n
28.10.2008 and 29.11.2008 were served by affixture.            As regards the<\/p>\n
meetings held on 17.11.2008, 11.12.2008 and 12.1.2009, he has admitted<\/p>\n
to have received notices also.\n<\/p>\n
       14.  It is the contention of the learned Senior Counsel for the<\/p>\n
petitioner that the notice for the meeting held on 28.10.2008 was affixed<\/p>\n
and such affixture is bad in the light of the fact that the manner of service of<\/p>\n
notice as provided under the relevant rules, were not exhausted.         Rule 3<\/p>\n
wpc 8150\/2010                           14<\/span><\/p>\n
(1)(d) of the Rules can be applied only if all the three methods of service<\/p>\n
under Rules 3(1)(a), (b) and (c) are exhausted.\n<\/p>\n
       15. Here, the Commission in its order, has taken the view that there is<\/p>\n
nothing wrong in the affixture done by the serving officer who was deputed<\/p>\n
for the same by the Secretary. The relevant evidence including oral and<\/p>\n
documentary, have been discussed by the Commission. It was held that<\/p>\n
there is nothing wrong in affixing the notice of the meeting at the residence<\/p>\n
of the petitioner when there was nobody to receive the notice. Accordingly,<\/p>\n
it is further held that the serving officer has followed the above rule.<\/p>\n
       16. Herein, some aspects which are relevant require consideration.<\/p>\n
Rules 3(1)(a) to 3(1)(d) are extracted below:\n<\/p>\n
        “3. Serving of notice.– (1) in case the Act or rules or bye-laws made<\/p>\n
        thereunder requires the Panchayat to serve any notice or document to<\/p>\n
        a person, such service or sending shall, unless otherwise provided in<\/p>\n
        the Act or rules or bye-laws made thereunder, be done.–<\/p>\n<\/blockquote>\n
              (a)   by service or sending of notice or document to such<\/p>\n
        person; or<\/p>\n<\/blockquote>\n
              (b) If such person cannot found out, by leaving such notice or<\/p>\n
        document at his last known place of abode or business or by<\/p>\n
        entrusting the same to some adult member or servant of his family<\/p>\n
        and in the case of employees working in firms, factories, plants and<\/p>\n
        workshops where admission to notice server is prohibited or where<\/p>\n
wpc 8150\/2010                         15<\/span><\/p>\n
       service of notice cannot be possible in the ordinary course, by<\/p>\n
       entrusting the same to the head of the institution or to any authorised<\/p>\n
       person, or<\/p>\n<\/blockquote>\n
             (c) if such     person’s address elsewhere is known to the<\/p>\n
       Secretary, by sending the same to that address by registered post; or<\/p>\n<\/blockquote>\n
             (d) if none of the aforesaid means are available, by affixing the<\/p>\n
       notice in some conspicuous part of his abode or work place.”<\/p>\n<\/blockquote>\n
Sub-rule (1)(a) provides for service of notice to the person concerned and<\/p>\n
sending of it also. The method under sub-rule (1)(b) is required when such a<\/p>\n
person cannot be found in the residence. The method under sub-rule 1(c)<\/p>\n
could be invoked if the person has got an address elsewhere. Sub-rule (1)<\/p>\n
(d) enables the service of notice by affixture if none of the above means are<\/p>\n
available. Herein, the serving officer went to the house of the petitioner and<\/p>\n
after recording that no member of the family was present, affixed the notice<\/p>\n
in the presence of two witnesses.\n<\/p>\n
       17. Learned Standing Counsel for the Commission submitted that<\/p>\n
actually the Rules, viz. Kerala Panchayat Raj (Manner of Service of<\/p>\n
Notices) Rules, 1996 may not apply here, as the said rules have been framed<\/p>\n
under clause (xv) of sub-section (2) of Section 254 of the Panchayat Raj Act<\/p>\n
and the only Rule applicable as regards the meetings of Panchayats, is “The<\/p>\n
Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995.”<\/p>\n
wpc 8150\/2010                         16<\/span><\/p>\n
The said rules have been framed under Sections 157, 158 and 161 of the<\/p>\n
Kerala Panchayat Raj Act, 1994.          Shri Chitambaresh, learned Senior<\/p>\n
Counsel for the petitioner points out that actually the Commission has<\/p>\n
considered the matter under the former rules, and hence the           present<\/p>\n
contention is not available<\/p>\n
      18. The conduct of the meetings of Panchayats are governed by the<\/p>\n
provisions of 161 of the Act. It is provided under Section 161(1) of the<\/p>\n
Act that the meetings of a Panchayat at any level shall be held at such<\/p>\n
intervals, as may be prescribed. The Kerala Panchayat Raj (Procedure for<\/p>\n
Panchayat Meeting) Rules, 1995 is framed in exercise of the powers<\/p>\n
conferred by Sections 157, 158 and 161 of the Act read with Section 254<\/p>\n
thereof. Rule 4 (1) of the above rules reads as follows:<\/p>\n
        “The notice regarding the place, date and time of the meeting and<\/p>\n
        subject to be discussed in the meeting shall be given to the members<\/p>\n
        at least three clear days prior to the date fixed for beginning of the<\/p>\n
        meeting:\n<\/p><\/blockquote>\n
              Provided that, in the above said clear days, declared holidays<\/p>\n
        shall be included but the date of receipt of notice and the date of<\/p>\n
        meeting shall not be included.”<\/p><\/blockquote>\n
      19. In Ext.P1, the plea raised by the petitioner in para 4 is by relying<\/p>\n
upon the above rules which require at least three clear days notice for the<\/p>\n
wpc 8150\/2010                         17<\/span><\/p>\n
meeting. The specific plea in Ext.P1 is that the respondent has violated the<\/p>\n
said provision. This is evident from para 3 of the petition also, wherein it is<\/p>\n
mentioned that there was no sufficient notice to the petitioner as<\/p>\n
contemplated under law, to attend the meeting.\n<\/p>\n
      20. I may now refer to the stand taken in the written statement of the<\/p>\n
Secretary. The method for service of notice has been clearly explained in<\/p>\n
paragraphs 8 and 9, wherein it is mentioned that “the notice of the<\/p>\n
committee meetings are generally and ordinarily issued by direct service to<\/p>\n
all the members including the petitioner. This is the general mode of<\/p>\n
service followed by the Panchayat from the beginning till date.            The<\/p>\n
petitioner herein has received notices of three out of the six issued to him<\/p>\n
during the period.” In para 9 it is further mentioned that the service of the<\/p>\n
Peon is utilised for the direct service in all the cases and reliance is placed<\/p>\n
on the notice delivery book also.\n<\/p>\n
      21. Therefore, as pointed out by the learned Standing Counsel for<\/p>\n
the Commission, the question posed by the petitioner was only with regard<\/p>\n
to the above aspect and no contentions are seen raised with regard to the<\/p>\n
violation of the Kerala Panchayat Raj (Manner of Service of Notices) Rules,<\/p>\n
1996.   This Court, in like circumstances, considered the applicability of<\/p>\n
wpc 8150\/2010                         18<\/span><\/p>\n
Rule 3(a) of the above Rules in respect of convening of Grama Sabhas, in<\/p>\n
the decision in Mavoor Grama Panchayat v. Ombudsman, Local Self<\/p>\n
Government Institutions<\/a> (2007 (4) KLT 886). It was held that the above<\/p>\n
rule applies only in cases where the Panchayat Raj Act or Rules by Bye-<\/p>\n
laws made thereunder requires the Panchayat to serve notices to a person.<\/p>\n
After considering various rules, it was held in para 7 as follows:<\/p>\n
       “It is true that as per R.3(a) of the Kerala Panchayat Raj (Manner of<\/p>\n
       Service of Notices) Rules, 1996, service of individual notice to the<\/p>\n
       person who is intended to be served with notice has been<\/p>\n
       contemplated. But R.3 of the Kerala Panchayat Raj (Manner of<\/p>\n
       Service of Notices) Rules, 1996 applies only in cases where the<\/p>\n
       Panchayat Raj Act or Rules or Bye-laws made thereunder requires<\/p>\n
       the Panchayat to serve notices to a person. The Panchayat Raj Act<\/p>\n
       does not insist on service of notice of Grama Sabha meetings to the<\/p>\n
       persons who constitute the Grama Sabha as per S.3(2) or to the head<\/p>\n
       of the families within the area of the Grama Sabha. The relevant<\/p>\n
       Rule is R.4 of the Kerala Panchayat Raj (Procedure for convening<\/p>\n
       the Grama Sabha) Rules, 1995.          Thus under the Rule what is<\/p>\n
       required is only that there shall be publicity regarding the proposed<\/p>\n
       meeting of the Grama Sabha and that the Convener concerned shall<\/p>\n
       try to inform the members of the Grama Sabha, the place, date and<\/p>\n
       time of the meeting and cause them to attend the meeting. What is<\/p>\n
       contemplated is publication of the date, place and time, by affixing<\/p>\n
       notice in public places, Government Offices, Schools in the area of<\/p>\n
wpc 8150\/2010                         19<\/span><\/p>\n
        the Grama Sabha and in the office of the Panchayat. The mandate<\/p>\n
        to the Convener is only that he shall try to inform the members of<\/p>\n
        the venue and time of the meeting and also cause them to attend the<\/p>\n
        meeting.”\n<\/p><\/blockquote>\n
It was found that separate rules are there for the convening of the meetings<\/p>\n
of the Grama Sabhas.\n<\/p>\n
      22.   Section 161 of the Panchayat Raj Act is concerned with the<\/p>\n
meetings of the Panchayats. Sub-section (1) states that “the meetings of a<\/p>\n
Panchayat at any level shall be held at such intervals, as may be prescribed.”<\/p>\n
Sub-section (4) of the said section provides that “Save as provided in this<\/p>\n
Act, the time and place of a meeting of a Panchayat, the quorum of such<\/p>\n
meeting, the procedure for calling such meeting and the procedure at such<\/p>\n
meeting shall be such as may be prescribed.” The rules framed, viz. The<\/p>\n
Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995, is<\/p>\n
the rules applicable as all these aspects are covered by the said rules. As<\/p>\n
already noticed, there should be at least three clear days prior to the date<\/p>\n
fixed for the meeting, after giving notice to the members.        Nothing is<\/p>\n
mentioned therein regarding      manner of service of notice.      Therefore,<\/p>\n
plainly the matter depends upon the way by which and the practice by<\/p>\n
which the Panchayat usually serve notice of such meeting, which has clearly<\/p>\n
wpc 8150\/2010                         20<\/span><\/p>\n
been mentioned in the written statement of the Secretary that personal<\/p>\n
service is always resorted to by the Panchayat. Therefore, as is proved in<\/p>\n
the   evidence,   personal service was resorted to on all days and        on<\/p>\n
28.10.2008 the notice was served by affixture. The said method is plainly<\/p>\n
legal and valid and the argument, therefore, that for want of proper notice<\/p>\n
the said meeting has to be eschewed for considering the question of<\/p>\n
disqualification, cannot be accepted. The same is the situation in respect<\/p>\n
of the affixture effected for the meeting held on 29.11.2008. There were<\/p>\n
three clear days of notice in respect of the five meetings which are crucial<\/p>\n
for the consideration of disqualification. Therefore, the only plea raised by<\/p>\n
the petitioner in Ext.P2 petition that there was no three clear days for the<\/p>\n
service of notice, having been found against by the Commission, it does not<\/p>\n
require any interference, in these proceedings under Article 226 of the<\/p>\n
Constitution of India.\n<\/p>\n
      23. It is true that the Commission has considered the matter in the<\/p>\n
light of the Kerala Panchayat Raj (Manner of Service of Notices) Rules,<\/p>\n
1996 also. The view taken is that they have resorted to Rule 3(1)(d) for<\/p>\n
affixture, which cannot be said to be wrong. Even though learned Senior<\/p>\n
Counsel for the petitioner Shri V. Chitambaresh submitted that the said<\/p>\n
wpc 8150\/2010                          21<\/span><\/p>\n
mode can be resorted to only after exhausting all the three other modes, it<\/p>\n
is evident that as the petitioner or any other member was not there at the<\/p>\n
time when the peon went to his house, and the evidence shows that the<\/p>\n
house was remaining closed and hence the only method by which the notice<\/p>\n
was served, cannot be said to be wrong.            For the meeting held on<\/p>\n
29.11.2008, affixture was effected as he had refused to receive the notice.<\/p>\n
Obviously, Rule 3(1)(a) was resorted to by sending            the notice to the<\/p>\n
petitioner through the peon which was a practice in vogue in the Panchayat.<\/p>\n
The method under Rule 3(1)(b) could not have been resorted to, in the<\/p>\n
absence of any adult member or servant in the family available at that point<\/p>\n
of time. Sub-rule(c) does not apply herein as it provides for sending the<\/p>\n
notice by registered post if the person is having an address elsewhere.<\/p>\n
Rule 3(1)(d) clearly provides that if none of the aforesaid means are<\/p>\n
available, notice can be affixed in some conspicuous part of his abode or<\/p>\n
work place. Considered in that manner also, I am of the view that even if<\/p>\n
the said rules are applied herein, there is no illegality as far as the service of<\/p>\n
notice is concerned.\n<\/p>\n
      24. Learned Senior Counsel appearing for the petitioner relied upon<\/p>\n
the principles stated in Kuppuswamy v. Viswam Chits (1986 KLT 98),<\/p>\n
wpc 8150\/2010                         22<\/span><\/p>\n
which considered the interpretation of Order V Rule 17 of the Code of<\/p>\n
Civil Procedure, wherein it was held that service by affixture can be made if<\/p>\n
all the other modes are exhausted. The rules provide for specific conditions<\/p>\n
for service by affixture, which are absent in the rule in question, viz. Rule 3<\/p>\n
(1)(d) of the Kerala Panchayat Raj (Manner of Service of Notices) Rules,<\/p>\n
1996.    Therefore, the principles laid down therein may not help the<\/p>\n
petitioner in this case.\n<\/p>\n
       For all these reasons, I find that no interference is called for on the<\/p>\n
order passed by the Commission and the writ petition is dismissed. No<\/p>\n
costs.\n<\/p>\n<\/p>\n
                                     (T.R. Ramachandran Nair, Judge.)<\/p>\n
kav\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court C.Krishna Kumar vs The Kerala State Election … on 2 July, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 8150 of 2010(P) 1. C.KRISHNA KUMAR, MEMBER (UNDER … Petitioner Vs 1. THE KERALA STATE ELECTION COMMISSION, … Respondent 2. THE SPECIAL GRADE SECRETARY, For Petitioner :SRI.V.CHITAMBARESH (SR.) For Respondent :SRI.MURALI […]<\/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-31565","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nC.Krishna Kumar vs The Kerala State Election ... on 2 July, 2010 - 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\/c-krishna-kumar-vs-the-kerala-state-election-on-2-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C.Krishna Kumar vs The Kerala State Election ... on 2 July, 2010 - 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