E.A. Omana v. State of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934** ## **WP(C).No. 20311 of 2012 (L) ---------------------------** **PETITIONER(S): ------------------------------** ## **E.A. OMANA, D/O.MR.AUGUSTHY, PURANCHIRA, PULIKKANI, VARANTHARAPPILLI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY SRI.N.NANDAKUMARA MENON,SENIOR ADVOCATE ADV.SRI.K.H.ASIF** **RESPONDENT(S):** **------------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. KERALA STATE ELECTION COMMISSION,** **THIRUVANANTHAPURAM - 695 001 REPRESENTED BY IT'S SECRETARY.** **3. CHANDRAN, S/O.KUTTAPPAN, CHITTAYAN, KORANODI, VARANTHARAPPILLI VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.PIN-680 303** **R1 BY ADVOCATE GENERAL SRI.K.P.DANDAPANI R2 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMISSION R3 BY SRI.RENJITH THAMPAN,SENIOR ADVOCATE ADV. SRI.V.M.KRISHNAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-11-2012,ALONG WITH WP(C)NO.19880/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C)NO.20311/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P-1 A PHOTOCOPY OF THE PETITION FILED BY THE 3RD RESPONDENT WHICH IS NUMBERED AS OP NO.56/2011 BEFORE THE 2ND RESPONDENT.** **EXT.P-2 A PHOTOCOPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P.NO.56/2011** - **EXT.P-3 A PHOTOCOPY OF THE COMMON ORDER PASSED BY 2ND RESPONDENT ALONGWITH O.P.NO.56/2011 DATED 18/08/2012** - **EXT.P-4 A PHOTOCOPY OF THE NOTICE ISSUED BY THE 1ST RESPONDENT DATED 06/09/2012** - **EXT.P-5 A PHOTOCOPY OF THE COVER IN WHICH EXT.P-4 WAS SENT BY THE 1ST RESPONDENT** - **EXT.P-6 A PHOTOCOPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 27/09/2012** - **EXT.P-7 A PHOTOCOPY OF THE NOTIFICATION DATED 14/08/2012 ISSUED BY THE SECRETARIAT OF THE KERALA LEGISLATION** - **EXT.P-8 A PHOTOCOPY OF THE ORDINANCE NO.54 OF 2012 DATED 26/09/2012 ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENTS' EXHIBITS :** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** “C.R.” ## **K.SURENDRA MOHAN,J.** **---------------------------------------------** **WP(C).No.20311, 19880, 19882, 19898, 19899, 19900, 19901, 19911, 19924, 20006, 20035, 20041, 20044, 20285, 20296, 20302, 20303, 20304, 20307, 20316, 20317, 20318, 20319, 20667,21758, 21874, 21875, 21876, 21877, 21878 of 2012 ---------------------------------------------Dated this the 21[st] day of November, 2012** ## **J U D G M E N T** The petitioners in these writ petitions are all members of two different Grama Panchayats. They have been disqualified by the State Election Commission by Ext.P3 order in all these writ petitions. Since the question that arises for consideration is common in all these cases, they have been heard together and are disposed of by this common judgment. W.P.(C)No.20311 of 2012 is treated as the leading case and the respondents as well as the documents produced are referred to in the manner in which they are described in the said writ petition. W.P.(C)No.20311 of 2012 & Conn.cases : 2 : 2. The question that arises for consideration is whether the petitioners are liable to be disqualified for their omission, in not having convened meetings of 'Grama Sabhas' as required by Section 35(p) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act' for short). According to the petitioners, a number of similar petitions are still pending consideration of the State Election Commission, the second respondent herein. 3. The petitioners were elected as members of the Grama Panchayat that was constituted on 01.11.2010. Thereafter, a meeting of the 'Grama Sabha' was convened in December, 2010. However, no meeting of the 'Grama Sabha' was conducted during the period 01.01.2011 to 31.06.2011. Thereafter, the 'Grama Sabha' was convened only during July-August, 2011. 4. Since Section 35(p) of the Act stipulates that an omission to conduct two consecutive meetings of the 'Grama Sabha' would disqualify a member, they have W.P.(C)No.20311 of 2012 & Conn.cases : 3 : been disqualified. 5. The order of disqualification is Ext.P3. The said order was passed on 18.08.2012. Even before the said order was passed, a Bill had been moved in the State Legislature seeking amendment of the said provision. The Bill is numbered as Bill No. 124 dated 14.08.2012 and has been produced as Ext.P7. The statement of objects and reasons of the Bill makes it clear that the same was introduced for the purpose of amending the Kerala Panchayat Raj Act, 1994, 'in order to remove the disqualification that may so arise' by virtue of Sub Section 'p' of Section 35(1) of the Act. Thereafter, Ext.P8 ordinance was issued amending the said provision to provide that the disqualification under Section 35(1)(p) of the Act would arise only where there is an omission to convene the 'Grama Sabha' for three consecutive times. The petitioners seek the benefit of the said ordinance. It is contended that the impugned order Ext.P3 is unsustainable in the light of the amended provision, W.P.(C)No.20311 of 2012 & Conn.cases : 4 : Section 35(1)(p). 6. Senior Counsel Sri.N.Nandakumara Menon points out that action for disqualification of members was sought to be initiated in nearly 115 cases and that only in the present cases, the second respondent had passed the impugned orders without waiting for the amendment to be brought into force. This is despite the fact that the introduction of the Bill for amending the statutory provision had been brought to the attention of the second respondent. Therefore, it is contended that Ext.P3 is liable to be set aside. 7. The learned Advocate General also advances contentions on the very same lines. According to the Advocate General, the ordinance Ext.P8 though issued on 26.09.2012 has been given retrospective effect from 01.11.2010. Consequently, the very basis on which Ext.P3 has been issued, has disappeared. For the said reason, it is contended that Ext.P3 is liable to be aside. As the statutory provision now stands, the petitioners do W.P.(C)No.20311 of 2012 & Conn.cases : 5 : not suffer from any disqualification. 8. Senior Counsel Sri. Renjith Thampan opposes the contentions of the petitioners. It is contended by the learned Senior Counsel that the order of the second respondent has not been made amenable to correction by a statutory appeal. Therefore, the legislative intent is to make the said order final. In view of the above, the said order has already become final and the petitioners have entailed the disqualification in accordance with the statutory provision as it existed, as on the date of passing of the impugned order, Ext.P3. The petitioners thus having already become disqualified, are not entitled to claim the benefits of the subsequent amendment of the statutory provision contending that their disqualifications no longer exist. The senior counsel also points out that Ext.P8 ordinance has only sought to amend the statutory provision but has not sought to validate the action taken in accordance with the statutory provision as it stood prior to the amendment. In the absence of such a W.P.(C)No.20311 of 2012 & Conn.cases : 6 : validating provision, it is contended that the petitioners having already become disqualified cannot now wish away the disqualification. The counsel also submits that if a by-election had been conducted pursuant to the order of disqualification, the new members so elected would certainly have been clothed with rights which could not have been set at naught on the basis of the amendment introduced by the ordinance Ext.P8. Reliance is also placed by the Senior counsel on a number of decisions both of this Court as well as of the Apex Court. Advocate Babu Joseph Kuruvathazha supports the contentions of Senior Counsel Sri.Renjith Thamban and points out that the consequences that have taken effect pursuant to Ext.P3 order of the second respondent cannot now be altered placing reliance on the ordinance, Ext.P8. Therefore, it is contended that these writ petitions are only to be dismissed. 9. I have heard learned Senior Counsel Sri.N.Nandakumara Menon, Advocate K.H.Asif and W.P.(C)No.20311 of 2012 & Conn.cases : 7 : Advocate P.V.Kunhikrishnan. I have also heard the learned Advocate General, who appears for the first respondent, Advocate Murali Purushothaman who appears for the second respondent and the learned Senior Counsel Sri. Renjith Thampan. 10. The second respondent has in Ext.P3 order answered the main issue that has come up for consideration before it in Paragraph 24 thereof, in the following words:- From the discussion held above, I hold that the respondents have failed in convening twice consecutively, the Grama Sabha due once in three months in their respective wards and so they have ceased to function as members of the Panchayat. The issues are answered accordingly. 11. The above finding makes it clear that the disqualification of the petitioners have been found on the basis that they have failed in convening, twice consecutively the 'Grama Sabha' that had to be convened once in three months in their respective wards. The Panchayats of which the petitioners are members was W.P.(C)No.20311 of 2012 & Conn.cases : 8 : constituted on 01.11.2010. The ordinance Ext.P8 provides in Section (1) thereof as follows:- 1. Short title and commencement - (1) This Ordinance may be called the Kerala Panchayat Raj (Second Amendment) Ordinance, 2012. (2) It shall be deemed to have come into force on the 1[st] day of November, 2010. 12. Therefore, the ordinance has come into force with effect from 01.11.2010. It is clear from the above that the ordinance has been made applicable to the members of Grama Panchayats from the initial date on which the Grama Panchayts were constituted, namely 01.11.2010. The conduct or the omission of the members of the Grama Panchayts in not convening the 'Grama Sabhas' in their respective wards has taken place only after the 'Grama Panchayats' were constituted. Therefore, the conduct with respect to which their disqualification has to be considered is relatable to the period after 01.11.2010. The relevant statutory provision having been amended with effect from the date of W.P.(C)No.20311 of 2012 & Conn.cases : 9 : inception of their term of Office, the legislative intent is clear that the conduct of the petitioners are to be considered in the light of the amended statutory provision, in this case Section 35(1)(p) of the Act. Therefore, the petitioners who have omitted to convene meetings of 'Grama Sabhas' within their wards during the period from 01.01.2011 to 30.06.2011 are entitled to successfully contend that they cannot be held to have entailed the disqualification unless the requirements of the amended statutory provision are satisfied. The consequence therefore is that, by the act of promulgating Ext.P8 ordinance and by giving retrospective effect to the same, the substratum of the decision of the second respondent contained in Ext.P3 has disappeared. Or in other words as held by the Apex Court, when the question is asked as to whether the second respondent could have passed the impugned order Ext.P3 under the amended statutory provision, the only answer possible is 'No'. It is settled law that amendments that have the effect of W.P.(C)No.20311 of 2012 & Conn.cases : 10 : removing the substratum of a decision is permissible, especially where the amendment is one having general application. It is also worth noticing that the ordinance Ext.P8 is not the subject matter of challenge in these writ petitions. Therefore, it is held that the ordinance Ext.P8 has removed the substratum of the decision in Ext.P3. 13. The contention of the learned Senior Counsel Sri.Renjith Thampan is that in the absence of an additional provision validating the acts done under the earlier provision, the petitioners cannot claim any relief. The counsel has placed reliance on a decision reported in **Gopalan v. Chief Secretary [2003(3) KLT 544]** . In the said decision, a Division Bench of this Court has considered the effect of Section 85 of the Kerala Municipality Act, 1994. Section 85 provides the manner in which a member of the Municipality has to subscribe to an oath of office. Infirmities in the manner in which the said provision was complied with had resulted in a number of members being disqualified. An amendment W.P.(C)No.20311 of 2012 & Conn.cases : 11 : was brought into force rectifying the said defects. A similar contention has been considered in paragraphs 29 and 30 of the said judgment, wherein **Jawahar Lal Gupta,C.J** . has held as follows:- 29. Lastly, the counsel has contended that the provision does not save respondent Nos. 3 to 23 as it only validates the election of those persons who were continuing in offices on March 29,2003 when the ordinance had been issued. 30. Admittedly, S.2 has been amended with effect from March 24,1999. Thus, the disqualification has been obliterated from a date even prior to the election. Resultantly, it has to be assumed that even on the date of filing of the nomination papers, respondents 3 to 23 fulfilled the disqualification. Once the disqualification has been removed, the validating provision entitles them to continue as Councillors. It does not say that only such persons as are actually in office will continue. On the contrary, it categorically provides that even those persons who had omitted certain words from the oath “shall not be deemed to be disqualified for being” Councillors and that they “shall continue” to be the Councillors. 14. It is contended that there is no similar validating Act in the present case. 15. The counsel has relied on a decision of the Apex W.P.(C)No.20311 of 2012 & Conn.cases : 12 : court in **Sharif Ahmad v. RTA Meerut** [AIR 1978 SC 209] as well as **Niranjan Singh v. Custodian, Evacuee Property (Pb)** [AIR 1961 SC 1425]. In the decision reported in **Sharif Ahmad v. RTA Meerut** [AIR 1978 SC 209], retrospective effect had been given to a provision in the Motor Vehicles Act, 1958. It was contended that an order passed by the State Transport Appellate Tribunal under the amended provision was illegal. It was held that the order that was passed by the Tribunal was legal in accordance with the provisions of law as it stood at that time and therefore, a law that was amended retrospectively could not be used to reopen valid judgments that were rendered, in accordance with the provision as it stood, before the amendment. In the decision reported in **Niranjan Singh v. Custodian, Evacuee Property (Pb)** [AIR 1961 SC 1425], it has been held that retrospective amendments could not be used to affect a vested right that has accrued to a person pursuant to a final determination. On the basis of the W.P.(C)No.20311 of 2012 & Conn.cases : 13 : above decision, it is contended that a vested right has accrued to the third respondent herein who was the petitioner before the second respondent. Advocate P.V.Kunhikrishnan who appears for one of the petitioners has placed reliance on the decision reported in **Bakhtawar Trust V. M.D.Narayanan [** (2003) 5 SCC 298] where a Bench of three Judges of the Apex Court had to consider a similar question. In the said case, an earlier provision permitted construction of buildings up to a height of 55 feet only. However, the Zonal Regulations that restricted the height of buildings were subsequently amended to permit construction of buildings up to a height of 155 feet. The said amendment was made applicable retrospectively. Repelling the contention that the said amendment was bad for the reason that it sought to nullify an earlier judgment, it has been held in Paragraph 30 of the said judgment as follows:- 30. A perusal of the impugned Act further reveals that the stipulated maximum height up to which a building may be constructed under the Zonal W.P.(C)No.20311 of 2012 & Conn.cases : 14 : Regulations, 1972, has been retrospectively modified, thereby allowing a maximum height of any building above 165 feet, as opposed to the earlier permissible maximum height of 55 feet. The legislature has, therefore, not merely negated the effect of any prior judgment, but it has removed the actual basis upon which the judgment was based and thereafter validated the actions . It would no more be possible for a court to conclude that the buildings concerned violated the terms of the Zonal Regulations, since the legal basis has now been altered through an enhancement of the maximum permissible height retrospectively. We are, therefore, of the view that the impugned Act is constitutionally valid.” 16. I notice that in the present case, the third respondent is only one of the voters of the Grama Panchayat. Therefore, his complaint in initiating proceedings before the second respondent was only in pblic interest. It cannot be said that any benefit or advantage has accrued to the 3[rd] respondent pursuant to Ext.P3 order. Therefore, there is no question in these cases, of an advantage or a benefit accruing to any other person by virtue of the impugned order. As held by the Division Bench in the decision reported in **Gopalan v.** W.P.(C)No.20311 of 2012 & Conn.cases : 15 : **Chief Secretary [2003(3) KLT 544]** , the amendment has been given effect to from the initial date on which the Grama Panchayat itself was constituted, thereby, every act that was done by the petitioners can only be said to have been done under the amended provision. The omission complained of against the petitioners can also be tested only under the provisions of the amended Section 35(1)(p) of the Act. In the present case, no action has been taken by the petitioners that requires to be validated pursuant to the amendment that has been brought into force. The only action that has been taken on the basis of the unamended provision is Ext.P3 order. Since no act is required to be validated by passing a validating Act, I am not able to accept the contention that the amendment should have been accompanied by a provision validating the acts done under the unamended provision. For the above reasons, the petitioners are entitled to succeed. Since I have already found that Ext.P3 is unsustainable, I refrain from considering the W.P.(C)No.20311 of 2012 & Conn.cases : 16 : other contentions that are raised. In the result, these writ petitions are allowed. Ext.P3 in all these writ petitions are set aside. Sd/- **K.SURENDRA MOHAN, JUDGE** kkj