JANCY JOHNSON & THAMPAN N.K. v. CHERUPUZHA GRAMA PANCHAYATH and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 04TH DAY OF APRIL 2019 / 14TH CHAITHRA, 1941** ## **WP(C).No. 10696 of 2019** ## **PETITIONERS:** - **1 JANCY JOHNSON,AGED 65 YEARS D/O.LOUIS, MADATHIL PARAMBIL HOUSE, P.O.CHUNDA, PULINGOME, VIA.CHERUPUZHA, KANNUR DISTRICT.** - **2 THAMPAN N.K.,AGED 56 YEARS S/O.KANNAN, NELLIYANKUNNATH HOUSE, P.O.CHUNDA, VIA.CHERUPUZHA, KANNUR DISTRICT.** - **BY ADV. SRI.M.V.AMARESAN** ## **RESPONDENTS:** - **1 CHERUPUZHA GRAMA PANCHAYATH, REPRESENTED BY ITS PRESIDENT JAMEELA KOLETH, P.O.CHERUPUZHA, KANNUR DISTRICT, PIN-670511.** - **2 JAMEELA KOLETH,PRESIDENT OF CHERUPUZHA GRAMA PANCHAYATH, P.O.CHERUPUZHA, KANNUR DISTRICT, PIN670511.** - **3 SECRETARY,CHERUPUZHA GRAMA PANCHAYATH, P.O.CHERUPUZHA, KANNUR DISTRICT, PIN – 670 511.** - **4 STATE ELECTION COMMISSION,REPRESENTED BY SECRETARY, LMS JUNCTION, THIRUVANANTHAPURAM, PIN-695035.** - **5 SISILY GEORGE,AGED 46 YEARS,W/O.GEORGE, KOLLAMKUNNEL, CHUNDA P.O., WARD NO.6, CHERUPUZHA, P.O.CHERUPUZHA, KANNUR DISTRICT, PIN-670511.** **BY SRI ABHILASH K.N, STANDING COUNSEL FOR PANCHAYATH ; BY SRI MURALI PURUSHOTHAMAN - STANDING COUNSEL FOR ELECTION COMMISSION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.04.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 10696 of 2019** **2** ## **JUDGMENT** The 1[st] petitioner, who is an elected member of the 1[st] respondent Grama Panchayath in the election held in the year 2015, and the 2[nd] petitioner, who is a voter in Ward No.5 of the 1[st] respondent Grama Panchayat, have filed this writ petition under Article 226 of the Constitution of India, seeking the following reliefs; - _“(i) to declare that the 2[nd] respondent had violated Oath taken at the time of assuming office as President of 1[st] respondent Panchayath by violating the mandate of Section 162(1) and 162(10) and the other provisions of Kerala Panchayath Raj Act, 1994 and the provisions of Constitution of India whereby she is liable to be disqualified from continuing as President of 1[st] respondent Panchayath;_ - _(ii) to disqualify 2[nd] respondent from, continuing as President of 1[st] respondent Panchayath and also to disqualifying the Managing Committee headed by 2[nd] respondent forthwith;_ - _(iii) to quash, by way of writ of certiorari, the election conducted on 16-3-2019 to Welfare Standing Committee;_ **WP(C).No. 10696 of 2019** **3** - _(iv) to issue a writ of mandamus or any other writ or orders directing the 2[nd] and 4[th] respondent to restore status quo as it existed on 31-1-2019 and to hold fresh election to Welfare Committee and to elect the 1[st] petitioner who is the only member then without membership in any of the standing committee to that committee forthwith;_ - _(v) to issue a writ of mandamus directing 4[th] respondent to consider Ext.P1 and take decision thereon within a short specified time. “_ 2. Heard the learned counsel for the petitioners, the learned Standing Counsel for respondents 1 to 3 and also the learned Standing Counsel for the 4[th] respondent State Election Commission. 3. The only document which is placed on record along with this writ petition is Ext.P1 representation dated 02.04.2019 made by the 1[st] petitioner before the 4[th] respondent State Election Commission seeking an order to cancel the election held on 16.03.2019 to the Welfare Standing Committee and to stay the election proposed to be held on 04.04.2019 to the Finance Standing Committee of the 1[st] respondent Grama Panchayat. In the said **WP(C).No. 10696 of 2019** **4** representation, the 1[st] petitioner has also sought for an order to disqualify the 2[nd] respondent, who is the President of the Grama Panchayat, and other members of the Panchayat Committee. 4. Section 35 of the Kerala Panchayath Raj Act, 1994 deals with disqualification of members and Section 36 deals with determination of such disqualification by the State Election Commission based on a petition filed under sub-section (1) of Section 36 of the Act. Section 139 of the Act deals with the powers of the State Election Commission in deciding any question of disqualification of candidates under sub-section (2) of Section 34 of the Act or subsequent disqualification of a member under Section 36 of the Act. For the purpose of an inquiry under sub-section (1) of Section 139 of the Act, the Commission shall have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 in respect of the matters enumerated in clauses (a) to (e) of sub-section (1). If the 2[nd] respondent, who is the President of the 1[st] respondent **WP(C).No. 10696 of 2019** **5** Grama Panchayat or any other members of the Panchayat Committee had incurred any disqualification as provided under sub-section (1) of Section 35 of the Act, any member of the 1[st] respondent Grama Panchayat has to file a proper original petition before the 4[th] respondent State Election Commission for determination of that issue, with the 2[nd] respondent and others in the party array. 5. In _**Santosh Kumar v. Central Warehousing Corporation [(1986) 2 SCC 343]**_ , the Apex Court held that what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India. Article 226 is not meant to avoid or circumvent the process of the law and the provisions of the Statute. 6. In view of the law laid down in the decision of the Apex Court referred to supra, the petitioners cannot seek a writ of mandamus commanding the 4[th] respondent State Election Commission to consider Ext.P1 representation **WP(C).No. 10696 of 2019** **6** dated 02.04.2019 and to take a decision on the alleged disqualification of the 2[nd] respondent and other members of the Panchayat Committee. 7. In **Bharat Singh v. State of Haryana [(1988) 4 SCC 534]** the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908 and a writ petition or a counter-affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in **WP(C).No. 10696 of 2019** **7** proof of such facts have to be pleaded and annexed to it. 8. Though the petitioners have sought for various reliefs in respect of the election held on 16.03.2019 to the Welfare Standing Committee and also the election proposed to be held on 04.04.2019 to the Finance Standing Committee, the materials in support of such facts are not placed on record along with this writ petition. In the absence of proper pleadings with supporting materials, the petitioners are not entitled for any of the reliefs sought for in this writ petition. In the result, this writ petition fails for the aforesaid reasons and the same is accordingly dismissed. **Sd/-** ## **ANIL K.NARENDRAN, JUDGE** AV/5/4 **WP(C).No. 10696 of 2019** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT DATED 2.4.2019.**