C.K. Ummu Salma v State Election Commission, Kerala and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944 ``` ## **`WP(C) NO. 19105 OF 2022`** ## **`PETITIONER`** ``` ADV. C.K.UMMU SALMA AGED 45 YEARS ``` ``` D/O. HAMSA HAJI, CHAKKALAKKUNNAN HOUSE, KODAKKAD P.O, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583. ``` ``` BY ADVS. ``` ``` B.PREMNATH (E) MANI GOVINDA MARAR SARATH M.S. NARMADA N. ``` ## **`RESPONDENTS:`** - **`1 STATE ELECTION COMMISSION, KERALA VIKAS BHAVAN, ''JANAHITHAM", NEAR LEGISLATIVE ASSEMBLY, THIRUVANANTHAPURAM, PIN 695 033, REPRESENTED BY THE STATE ELECTION COMMISSIONER.`** - **`2 THE SECRETARY, DISTRICT PANCHAYAT, PALAKKAD , PIN 678 001, (EMPOWERED OFFICER UNDER SECTION 157 OF THE KERALA PANCHAYAT RAJ ACT, 1994)`** - **`3 THE MANNARKKAD BLOCK PANCHAYAT, NH 966, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 582, REPRESENTED BY ITS SECRETARY.`** - **`4 THE SECRETARY, THE MANNARKKAD BLOCK PANCHAYAT, NH 966, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 582.`** - **`5 MUSTHAFA VARODAN, S/O. LATE ASSAINAR, AGED 48, VARODAN HOUSE, PAYYAMADAM P.O, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.`** - **`6 BASHEER THEKKAN, S/O. MOHAMMED HAJI, AGED 49, KATTUKULAM, ALANALLUR P.O, PALAKKAD DISTRICT, PIN 678 601.`** - **`7 MOHAMMED CHERUTHY, AGED 50 YEARS`** - **`S/O. LATE HAMZA, MANJALINGAL HOUSE, THRIKKALLOOR P.O, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.`** - **`8 SHANAVAS P, AGED 45 YEARS S/O. MOHAMMED, PADUVANPADAN HOUSE, EDATHANATTUKARA P.O, MANNARKKAD, PALAKKAD , PIN 678 583.`** ``` WP(C) NO.19105 OF 2022 ``` ## **`2`** - **`9 BUSHRA K.P, W/O. KUNHI MOHAMMED, AGED 48, THACHANATTUKARA P.O, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.`** - **`10 THANKAM MANGADIKKAL, W/O. KRISHNANKUTTY, AGED 52, KUNDURKUNNU P.O, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.`** - **`11 MANIKANDAN V, AGED 48 YEARS S/O. KOPPAN, VADASSERY HOUSE, THIRUVAZHAMKUNNU P.O, MANNARKKAD, PALAKKAD , PIN 678 583.`** - **`12 KUNHIMUHAMMED P, AGED 45 YEARS`** - **`S/O. ABOOBACKER, PADUVIL HOUSE, AYIROOR P.O, KOTTOPPADAM, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.`** - **`13 BIJI TOMY, AGED 39 YEARS W/O. TOMY SEBASTIAN , PERUMPUZHAYIL HOUSE, IRUMBAKACHOLA P.O, KANJIRAPUZHA, PALAKKAD DISTRICT, PIN 678 591.`** - **`14 PREETHA V, W/O. SETHU MADHAVAN C.M, KOOOTPPADAM P.O, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.`** - **`15 KURIAN P.V, AGED 55 YEARS PARAKKUDIYIL HOUSE, PALAKKAYAM P.O, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.`** - **`16 DISTRICT POLICE CHIEF, YAKKARA ROAD, NEAR KSRTC BUS STAND, PALAKKAD , PIN 678 014.`** - **`17 STATION HOUSE OFFICER, MANNARKKAD POLICE STATION, NH 213, KOZHIKODEPALAKKAD HWY, MANNARKKAD, PIN 678 582.`** - **`SRI. DEEPU LAL MOHAN- R1 SMT. SURYA BINOY- SR. GP SRI. BABU S. NAIR R5 TO R15`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO.19105 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 14[th] day of June, 2022 The petitioner, who is an elected member of Block Panchayat, Mannarkkad, is before this Court seeking to declare that Exts.P14 and P15 are invalid and illegal and to direct the 1[st] respondent to consider and pass orders on Ext.P16 petition in accordance with law and till then the proceedings pursuant to Exts.P14 and P15 may be kept in abeyance. 2. The petitioner states that she was elected as member of the Block Panchayat and was thereafter elected as President of the Block Panchayat in Mannarkkad. Respondents 5 to 15 issued notice for moving No Confidence Motion against the petitioner on 05.11.2021. On 20.11.2021, the 2[nd] respondent intimated to the 1[st] respondent that the meeting of No Confidence Motion could not take place due to want of quorum. ``` WP(C) NO.19105 OF 2022 ``` ``` 4 ``` 3. On 23.05.2022, respondents 5 to 15 gave a notice of intention to move No Confidence Motion against the petitioner. The petitioner would submit that the notice is not in the prescribed format as provided under Section 157(3) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as ‘the Act, 1994’) and Rule 15 of the Kerala Panchayat Raj (Procedure for Meetings) Rules, 1995 (hereinafter referred to as ‘the Rules, 1995’). The said notice was declared invalid and illegal in the judgment of this Court in W.P.(C) No.17605 of 2022. 4. The petitioner states that respondents 5 to 15 again gave a third notice to move No Confidence Motion against the petitioner as per Ext.P14. The petitioner submits that Ext.P14 is not in the proper form and it cannot be treated as a valid notice. The learned counsel for the petitioner urged that Ext.P14 notice is not in accordance with the format prescribed ``` WP(C) NO.19105 OF 2022 ``` ``` 5 ``` as per Section 157(3) of the Act, 1994 and Rule 15(2) of the Rules, 1995 and it is therefore illegal and unsustainable. 5. One of the members, who is signatory to Ext.P14, has signed a receipt at the bottom of Ext.P14 notice. The provisions of Section 157 do not permit to endorse the date and time by the member presenting the motion. There cannot be an endorsement like “received”, “receipt” in Ext.P14. The learned counsel submits that the provisions of Section 157 of the Act, 1994 have to be construed strictly and there cannot be any relaxation or addition or words, signature, etc., in the prescribed format of the notice. Ext.P14 is therefore unsustainable and cannot be acted upon. 6. The learned counsel relied on the judgment of this Court in **Anitha v. Kanjirappilly Block Panchayat [ 2004 (3) KLT 211]** , wherein this Court held that Section 157 of the Act, 1994, with its heading ‘Motion of No Confidence’ is a comprehensive code of procedure. A motion expressing want ``` WP(C) NO.19105 OF 2022 ``` ``` 6 ``` of confidence is to be moved in accordance with the procedure laid down there alone. The mandatory requirements under Section 157(2) are a written notice signed by required number of members and a copy of the motion to be moved. It has to be delivered by any of the signatories, to the authorised officer, and in person. No relaxation of any of the procedure is permissible, as everyone of them are mandatory requirements. 7. Relying on the judgment of the Apex Court in **Sreeram Redddy and another v. Returning Officer and others [(2009) 8 SCC 736]** , the learned counsel for the petitioner urged that while interpreting a special statute, which is a self contained code, the Court must consider the intention of the legislature. 8. The learned counsel for the petitioner further urged that once the intended notice of No Confidence Motion is presented, it has to be in the custody of the 2[nd] respondent ``` WP(C) NO.19105 OF 2022 ``` ``` 7 ``` and no other person is entitled to make any endorsement in the said notice. It is to maintain the sanctity of the motion of no confidence. The endorsement of the 8[th] respondent would also mean that there could be manipulation after the submission of Ext.P14 notice to the 2[nd] respondent. Ext.P14 notice is therefore liable to be declared as invalid and illegal. 9. The Standing Counsel entered appearance for the 1[st] respondent and defended the writ petition. The Standing Counsel pointed out that as per the requirement prescribed in Section 157(2):- “(i) There shall be a “Notice” of intention of move a motion of No-Confidence’ in the President or Vice President. (ii) The Notice of intention to move the motion shall be in writing. (iii) The Notice of intention to move the motion shall be in the prescribed form. (iv) The notice of intention to move the motion shall be signed by at least one-third of the sanctioned strength of that Panchayat. (v) Only elected members can be signatories to the Notice of intention to move the motion. (vi) The Notice of intention to move the motion shall be accompanied by a copy of the proposed motion. (vii) Any of the signatories to the Notice of intention to move the motion shall deliver the notice of intention to move the motion in person to the officer authorised by the State Election ``` WP(C) NO.19105 OF 2022 ``` ``` 8 ``` Commission. (viii) The notice of intention to move the motion shall be delivered to the officer authorised by the State Election Commission alone.” 10. All afore requirements are complete in Ext.P14. In the instant case, the member who delivered Ext.P14 notice wanted the Authorised Officer a receipt in respect of Ext.P14. The Authoirsed Officer issued a separate receipt to the member. The member acknowledged the receival of the receipt in Ext.P14. That by itself will not invalidate Ext.P14. 11. The counsel representing respondents 5 to 15 also opposed the writ petition. The counsel for respondents 5 to 15 submitted that the attempt of the petitioner is to circumvent the democratic process. The petitioner has lost the confidence of the Panchayat. The writ petition is without any bonafide and it is liable to be dismissed. 12. Heard the learned counsel for the petitioner, the learned Standing Counsel representing the 1[st] respondent, the learned Government Pleader representing respondents 2, 16 ``` WP(C) NO.19105 OF 2022 ``` ``` 9 ``` and 17 and the learned counsel representing respondents 5 to 15. 13. Ext.P14 form submitted by the members of the Block Panchayat would show that it has been signed by eleven members. The notice of intention to move the motion is in writing. It is also in the prescribed form. The notice has been signed by more than 1/3[rd] of the sanctioned strength of the Panchayat. It is not disputed that the notice of intention was accompanied by a copy of the proposed motion. The notice of intention was delivered to the officer authorised by the State Election Commission. Therefore, it is evident that all the procedural requirements are complied with. 14. The argument of the petitioner is that one of the members, who is a signatory to Ext.P14, has endorsed receipt at the bottom portion of Ext.P14 form. This Court is of the considered opinion that when Ext.P14 notice is otherwise complete in all respects, an endorsement of receipt by one of ``` WP(C) NO.19105 OF 2022 ``` ``` 10 ``` the members, who delivered Ext.P14 to the Authorised Officer, cannot invalidate the notice. 15. This Court considered an identical issue in the judgment in **Sherly George and another v. State of Kerala and others [2019 (3) KHC 743]** . This Court held that the question is whether minor defects in the form and content of the notice would render the entire exercise of consideration of the No Confidence Motion otiose, if the requirements of the Sections are otherwise substantially complied with. This Court held that the answer would depend on the facts as to whether the notice of intention was correctly understood and acted upon by the officer authorised by the Election Commission. 16. This Court also finds that the object of giving written notice of the intention to move a No Confidence Motion is to enable the Authorised Officer to ascertain as to whether the motion has been signed by atleast 1/3[rd] of the sanctioned strength of the Panchayat. ``` WP(C) NO.19105 OF 2022 ``` ``` 11 ``` 17. In the case of the petitioner, Ext.P14 is in proper form. Ext.P14 is in writing and it is in the prescribed form. Ext.P14 notice of intention to move the motion is signed by more than 1/3[rd] of the sanctioned strength of the Panchayat. The notice, admittedly, has been delivered in person to the officer authoirsed by the State Election Commission. Since all the procedural requirements mandated by Rule 157 are complied with, an endorsement of the receipt in Ext.P14 by one of the members, who submitted the notice, by itself will not invalidate Ext.P14. For the afore reasons, this Court finds no merit in the writ petition. The writ petition is therefore dismissed. **sd/N.NAGARESH JUDGE** hmh ``` WP(C) NO.19105 OF 2022 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 19105/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE NOTICE FOR MOVING THE NO CONFIDENCE MOTION BY RESPONDENTS 5 TO 15 BEFORE THE 2ND RESPONDENT, ALONG WITH THE RESOLUTION, DATED 05.11.2021. Exhibit P2TRUE COPY OF THE INTIMATION BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT REGARDING THE LACK OF QUORUM AND THE DISBURSAL OF MEETING , DATED 20.11.2021. Exhibit P3TRUE COPY OF THE NOTARY ATTESTED AFFIDAVIT AND THE NOTICE SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, DATED 11.12.2021. Exhibit P4TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DATED 24.12.2021. Exhibit P5TRUE COPY OF THE ORDER NO. B2/45/2021- SEC OF THE 1ST RESPONDENT, DATED 10.01.2022. Exhibit P6TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN W.P.C NO. 3056 OF 2022 DATED 10.03.2022. Exhibit P7TRUE COPY OF THE DOCUMENT EXAMINATION REPORT/OPINION OF THE ASSISTANT DIRECTOR (DOCUMENTS) OF THE REGIONAL FORENSIC SCIENCE LABORATORY, DATED 01.04.2022. Exhibit P8TRUE COPY OF THE COMPLAINT OF THE PETITIONER BEFORE THE CIRCLE INSPECTOR, MANNARKKAD, DATED 31.12.2021. Exhibit P9TRUE COPY OF THE F.I.R IN CRIME NO. 38/2022 OF THE MANNARKKAD POLICE STATION, DATED 12.01.2022. Exhibit P10TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, ``` ``` WP(C) NO.19105 OF 2022 ``` ``` 13 ``` ``` THIRUVANANTHAPURAM, PIN 695 010, DATED 30.04.2022. ``` ``` Exhibit P11TRUE COPY OF THE NOTICE OF NO CONFIDENCE MOTION SUBMITTED BY RESPONDENTS 5 TO 15 ALONG WITH THE RESOLUTION ATTACHED, DATED 23.05.2022. Exhibit P12TRUE COPY OF THE NOTICE NO. E1-1293 OF 2022 ISSUED BY THE 2ND RESPONDENT, DATED 25.05.2022. ``` ``` Exhibit P13TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.C NO. 17605 OF 2022, DATED 02.06.2022. ``` ``` Exhibit P14TRUE COPY OF THE NOTICE AND THE RESOLUTION FOR NO CONFIDENCE MOTION SUBMITTED BY RESPONDENTS 5 TO 15 TO THE 2ND RESPONDENT, DATED 03.06.2022. Exhibit P15TRUE COPY OF THE NOTICE NO. E1- 1409/2022 OF THE 2ND RESPONDENT TO THE PETITIONER, DATED 04.06.2022. ``` ``` Exhibit P16TRUE COPY OF THE PETITION SENT TO THE 1ST RESPONDENT AGAINST THE 2ND RESPONDENT AND THE COVERING LETTER SENT THROUGH THE E-MAIL ID OF THE PETITIONER, DATED 10.06.2022. ```