# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941**
## **WP(C).No.25948 OF 2019(P)**
## **PETITIONER:**
**MALAYALAPPUZHA GRAMA PANCHAYATH COMMITTEE, REPREENTED BY ITS PRESIDENT JAYALAL,AGED 53 YEARS, S/O. KAMALASANAN, MALAYALAPPUZHA P.O., PATHANAMTHITTA DISTRICT, PIN - 689 666**
**BY ADVS. SRI.V.SETHUNATH SRI.V.R.MANORANJAN**
## **RESPONDENTS:**
- **1 THE DISTRICT COLLECTOR/DISTRICT ELECTION OFFICER, CIVIL STATION, PATHANAMTHITTA, PIN - 689 645**
- **2 THE KERALA STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM, PIN - 695 032**
- **3 ADDL.R3 THE CHIEF ELECTORAL OFFICER, ELECTION DEPARTMENT, KERALA LEGISLATIVE COMPLEX, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM, PIN-695 033**
**IS IMPLEADED AS ADDITIONAL R3 AS PER THE ORDER DATED 01.10.2019 IN I.A NO.1/2019 IN W.P.(C).NO.2594/2019.**
**R3 BY SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **J U D G M E N T**
The petitioner is a Grama Panchayath constituted under the Kerala Panchayat Raj Act, 1994 (the Panchayat Raj Act). The first respondent, on whom the functions of the State Government under Section 160 of the Representation of the People Act, 1951 (the Act) have been delegated, has requisitioned a vehicle owned by the petitioner for use in connection with the by-election scheduled on 21.10.2019 to the State Legislative Assembly from the Konni constituency. Ext.P4 is the order issued by the first respondent in this connection. The case set out by the petitioner in the writ petition is that the petitioner being a constitutional body, its assets cannot be requisitioned under Section 160 of the Act. According to the petitioner, if the assets like the vehicles of the petitioner are requisitioned for the elections taking place in the State one after another, it may not be in a position to discharge its constitutional obligations. The petitioner, therefore, challenges Ext.P4 order on that basis, in this writ petition.
2. A statement has been filed in the matter on behalf of the additional third respondent, the Chief Electoral
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Officer of the State. The stand taken by the third respondent in the statement is that, as the Election Commission responsible for conduct of elections to the State Legislative Assemblies does not have independent machinery for its functions, it is the obligation of the State Government to make available necessary infrastructure to the Election Commission for the smooth conduct of elections. According to the third respondent, it is to enable the State Government to discharge the said obligation that powers have been conferred on it under Section 160 of the Act to requisition premises, vehicles and other infrastructure for the conduct of elections. It is mentioned in the statement that vehicles belonging to other panchayats have also been requisitioned for the by-election referred to in Ext.P4.
3. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the additional third respondent.
4. The learned counsel for the petitioner reiterated the stand taken in the writ petition that the petitioner being a constitutional body, its assets cannot be requisitioned under Section 160 of the Act. Per contra, the learned Standing Counsel for the third respondent contended
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that in a democratic set up like ours, it is the obligation of every constitutional body to act in aid for the conduct of elections, and a litigation of this nature is not expected from a constitutional body like the petitioner.
5. Whether the Grama Panchayats constituted under the Panchayat Raj Act amenable to the power of the State Government under Section 160 the Act is the question arises for consideration in this matter. There is no cavil over the fact that the Election Commission responsible for the conduct of elections to the State Legislative Assembly under article 324 of the Constitution has no independent infrastructure/machinery for discharging its functions. It is, therefore, clear that the constitutional scheme is that the State Governments have to provide the required infrastructure for discharging the functions of the Election Commission. Section 160 of the Act was intended and enacted for the said purpose. Section 160 of the Act reads thus:
## **160. Requisitioning of premises, vehicles, etc.,**
**for election purposes** .—(1) If it appears to the State Government that in connection with an election held within the State—
(a) any premises are needed or are likely to be needed for the purpose of being used as a polling station or for the storage of ballot boxes after a poll has been taken, or
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(b) any vehicle, vessel or animal is needed or is likely to be needed for the purpose of transport of ballot boxes to or from any polling station, or transport of members of the police force for maintaining order during the conduct of such election, or transport of any officer or other person for performance of any duties in connection with such election,
the Government may by order in writing requisition such premises, or such vehicle, vessel or animal, as the case may be, and may make such further orders as may appear to it to be necessary or expedient in connection with the requisitioning:
Provided that no vehicle, vessel or animal which is being lawfully used by a candidate or his agent for any purpose connected with the election of such candidate shall be requisitioned under this sub-section until the completion of the poll at such election.
(2) The requisition shall be effected by an order in writing addressed to the person deemed by the State Government to be the owner or person in possession of the property, and such order shall be served in the prescribed manner on the person to whom it is addressed.
(3) Whenever any property is requisitioned under subsection (1), the period of such requisition shall not extend beyond the period for which such property is required for any of the purposes mentioned in that sub-section.
(4) In this section—
(a) "premises" means any land, building or part of a building and includes a hut, shed or other structure or any part thereof;
(b) "vehicle" means any vehicle used or capable of being used for the purpose of road transport, whether propelled by mechanical power or otherwise.
As evident from the provision, the State Government is authorised and empowered in terms of the provision to
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requisition any premises or vehicle required for the conduct of election and if a requisition is made under that provision, the owner or the person in possession, as the case may be, of the premises or vehicle requisitioned, shall comply with the requisition. Non-compliance of the requisition was made an offence in terms of Section 167 of the Act. No exception whatsoever, is carved out in the provision in favour of any person or authority including a constitutional body like the petitioner in the instant case. There is, therefore, no scope for any doubt to the fact that Grama Panchayats under the Panchayat Raj Act would fall within the scope of Section 160 of the Act.
6. Now let us examine the question as to whether the Constitution (Seventy-third) Amendment Act, 1992, in terms of which part IX of the Constitution was introduced interdicts the State Government from exercising its powers under Section 160 of the Act over the assets of Grama Panchayats constituted in terms of the same. Though Panchayat Raj Institutions were in existence for quite a long time, it was noticed that these institutions were not able to acquire the status and dignity of viable and responsive people's bodies due to various reasons. It was in
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the said circumstances, in the light of Article 40 of the Constitution which lays down that the State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government, the Constitution (Seventy-third) Amendment Act, 1992 was introduced with a view to enshrine in the Constitution certain basic and essential features of Panchayat Raj Institutions to impart certainty, continuity and strength to them and to enable and empower them to function as institutions of Self Governments. The said constitutional amendment confers certain powers on Local Self Government Institutions. It promises a term of 5 years for Local Self Government Institutions. It promises free and fair election as also representation of Scheduled Castes and Scheduled Tribes in the administration of institutions of Local Self Government, and protection from interference by other organs of the State including judiciary in certain matters. Part IX of the Constitution does not, however, confer on panchayats the status of a body independent or autonomous as a province in a federation. Part IX makes no change in the essential features of the panchayat organisation. What was sought to
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be done by the Constitution (Seventy-third) Amendment Act, 1992 was to grant a constitutional status for the panchayats. The effect of the aforesaid constitutional provisions is that State legislatures cannot thereafter do away with these democratic bodies at the local level [See **Gujarat Pradesh Panchayat Parishad and Others v. State of Gujarat and Others** (2007)7 SCC 718]. The Constitution (Seventy-third) Amendment Act, 1992 cannot, therefore, be relied on to contend that the power of the State Government under Section 160 of the Act does not extend over Grama Panchayats constituted under the Panchayat Raj Act.
The writ petition, in the circumstances, is wholly misconceived and the same is, accordingly, dismissed.
**Sd/P.B.SURESH KUMAR, JUDGE.**
mpm
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
**EXHIBIT P1 TRUE COPY OF THE R.C. PARTICULARS OF JEEP HAVING REGN.NO.KL-3 AC-4194**
**EXHIBIT P2 TRUE COPY OF THE ORDER DATED 15-32019 CONFISCATING THE JEEP HAVING REGN NO. KL-3 AC 4194**
**EXHIBIT P3 TRUE COPY OF THE ORDER DATED 30-82019 CONFISCATING THE JEEP HAVING REGN NO.KL-3 AC 4194**
**EXHIBIT P4 THE TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 24-9-2019 TO PRODUCE THE JEEP HAVING REGN NO. KL-3 AC 4194**
// TRUE COPY // P.A TO JUDGE
