N. Venugopal and Minimol (W/o J. Joy) v The State of Kerala and Others

W.P.(C).No.36901/22 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 8[TH] DAY OF AUGUST 2023 / 17TH SRAVANA, 1945** ## **WP(C) NO. 36901 OF 2022** ## **PETITIONERS:** 1 N.VENUGOPAL AGED 71 YEARS S/O NEELAKANDA PILLA, SREELAKAM, PANDARACHIRA, 1ST CROSS ROAD, KADAVANTHRA SOUTH. PIN.682 2020. 2 MINIMOL, W/O J.JOY, AGED 43 YEARS, ACHU ANU, VATTATHIPADAM ROAD, PALARIVATTOM P.O, KOCHI-682 025. BY ADVS. T.K.AJITHKUMAR (VALATH) N.N.SUGUNAPALAN (SR.) NAVANEETH D.PAI ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT (URBAN & RURAL), ROOM NO.505, 5TH FLOOR, ANNEX 1, SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001. 2 SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT (URBAN), ROOM NO.377, MAIN BLOCK, SECRETARIAT, THIRUVANANTHAPURAM.PIN 695 001. 3 THE STATE ELECTION COMMISSION, KERALA REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTAPURAM-695 033. W.P.(C).No.36901/22 2 4 THE MAYOR, CORPORATION OF KOCHI, OFFICE OF THE KOCHI CORPORATION, ERNAKULAM, PIN.682 011. 5 THE CORPORATION OF KOCHI REPRESENTED BY ITS SECRETARY, OFFICE OF THE KOCHI CORPORATION, ERNAKULAM, PIN.682 011. 6 THE SECRETARY, THE CORPORATION OF KOCHI , OFFICE OF THE KOCHI CORPORATION, ERNAKULAM, PIN.682 011. 7 MRS. PADMAKUMARI, AGED 46 YEARS S/O. NOT KNOWN TO THE PETITIONER, QUARTERS NO.E346. RNAS AREA, WILLINGTON ISLAND, PIN-682 003 BY ADVS. ADVOCATE GENERAL OFFICE KERALA DEEPU LAL MOHAN SHRI.K.JANARDHANA SHENOY, SC, KOCHI MUNICIPAL CORPORATION Saju K.T P.VIJAYAKUMAR(K/91/1982) ## **OTHER PRESENT:** SMT.K.R.DEEPA-SPL.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2023, THE COURT ON 08.08.2023 DELIVERED THE FOLLOWING:- W.P.(C).No.36901/22 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.36901 of 2022 = = = = = = = = = = = = = = = = Dated this the 8[th] day of August, 2023** ## **JUDGMENT** 1.Petitioners challenge Exhibit P8 order passed by the Government and seek a declaration that the action of the 4[th] respondent in permitting the 7[th] respondent to take oath of office on 11.8.2022 was illegal as also a direction to issue notification in the official Gazette declaring that the 7[th] respondent voluntarily vacated the seat of Councillor of Division No.29 of the 5[th] respondent. A writ of quo warranto to direct the 7[th] respondent to vacate the Councillorship is also sought for. - 2.It is contended that the general election to the 5[th] respondent Corporation was conducted on 10.12.2020. The 1[st] petitioner W.P.(C).No.36901/22 4 was a candidate in Division No.29 of Kochi Corporation and the 2[nd] petitioner is the Councillor of Division No.40 of the Corporation of Kochi. Results of the election were declared on 16.12.2020 and the 7[th] respondent was declared as the returned candidate by majority of one vote against the 1[st] petitioner. It is contended that there was a difference of one vote in the polled votes and the votes recorded in the electronic voting machine. Since the number of votes polled by the 7[th] respondent and the 1[st] petitioner were equal the Presiding Officer had conducted a draw of lots and the 7[th] respondent was declared as elected. - 3.The 1[st] petitioner filed OP (Election) No.1/2021 before the Munsiff's Court. The Munsiff's Court had also drawn lots to decide the result of the election and the OP was ordered as follows:- - “ In the result the petition is partly allowed as follows:- - A)In exercise of the powers conferred under section 176(b) of the Kerala Municipality Act, 1994, the election of the 1[st] respondent, the returned candidate to Division 29, Willington Island North of Municipal Corporation, Kochi in the election held on 10.12.2020 is void. W.P.(C).No.36901/22 5 B) The prayer for a declaration under section 179 of the Kerala Municipality Act to declare the petitioner as the duly elected candidate is disallowed. C) In exercise of the power conferred under section 180(b) of the Kerala Municipality Act, it is decided between the petitioner and the 1[st] respondent by lot that the 1[st] respondent on whom the lot fell has received an additional vote and thereby the 1[st] respondent is declared as the returned candidate to Division No.29, Willington Island North of Municipal Corporation, Kochi. D) The parties shall suffer their respective costs. E) As stipulated under Section 181 of the Kerala Municipality Act, the office shall immediately intimate the substance of the order to the State Election Commission and to the Chairman of the Municipal Corporation, Kochi and thereafter shall send an authenticated copy of the judgment to the State Election Commission.” 4. The 7[th] respondent was, therefore, declared elected on 22.6.2022. It is contended that Section 143(1)(IA) of the Kerala Municipality Act, 1994 provides that Councillors shall assume charge of their office by making and subscribing an oath or affirmation, in the form set out for this purpose in the Third Schedule. As per section 143(1)(1B) of the Act, Councillor, who is not able to make an oath or affirmation under sub-section (1A) or a Councillor elected in the byeelection may make such oath or affirmation before the W.P.(C).No.36901/22 6 Chairperson. Sub section (3) of the section 143 provides that no Councillor who has not taken an oath or affirmation under sub-section (1A) or under sub-section (1B) shall vote or take part in the proceedings of any meeting of the Municipality, nor shall be included as a member of any of the Committee constituted by the Municipality. Subsection (4) of section 143 further says that ‘the Government may, by notification in the Gazette, declare the office of Councillor as vacated in his own motion, where such a Councillor has not assumed charge of his office by making an oath or affirmation without sufficient cause within a maximum period of thirty days from the date by which he was elected as a Councillor. It is, therefore, contended that since the 7[th] respondent stood elected on 22.6.2022, she should have made the oath or affirmation within one month from the said date, failing which she should be declared to have vacated her office on her own motion. 5. The 2[nd] petitioner submitted Exhibit P2 representation dated 8.8.2022 before the 1[st] respondent to issue a notification to declare the office of the councillor as vacated. Thereafter, the - 4[th] respondent issued a notice dated 10.8.2022 to the W.P.(C).No.36901/22 7 councillors of the Kochi Corporation, including the 2[nd] respondent stating that an oath taking ceremony of the 7[th] respondent is to be conducted on 11.8.2022. The said notice is produced as Exhibit P3. The 1[st] petitioner again submitted a complaint to the 4[th] respondent pointing out that the oath taking ceremony of the 7[th] respondent fixed on 11.8.2022 is illegal since it was beyond the period of thirty days from 22.6.2022. However, in spite of the objections, the oath taking ceremony was carried out. 6. The petitioner approached this Court and by Exhibit P5 judgment dated 28.8.2022, this Court directed the Government to take a decision on Exhibit P2 representation. A report was submitted by the 6[th] respondent to the Government and the 7[th] respondent had submitted Exhibit P7 objection. By Exhibit P8, the 1[st] respondent heard the parties and rejected Exhibit P2 representation. The said order is under challenge in this writ petition. 7. It is contended by the learned Senior Counsel appearing for the petitioner that since a period of thirty days is specifically W.P.(C).No.36901/22 8 provided after which the provisions of Section 143(4) would bring into operation, the action of the 4[th] respondent in having permitted the 7[th] respondent to affirm and make an oath of affirmation after the said thirty day period and after the 1[st] petitioner had approached the Government with a request to issue a declaration under Section 143(4) would not make any difference to the situation. It is contended that the Government ought to have seen that the 7[th] respondent stood elected on 22.6.2022 and that she had shown no reason before the Government as to why she could not take the oath of office within the thirty days time as provided in the statute. It is therefore contended that the only assumption that the 1[st] respondent could arrive at is that she had lost the right to represent the Division she was elected from and therefore would have to be declared as having vacated her seat. Reliance is placed on the decision of the Apex Court in **Ram Pal Singh v. State of U.P. And others** [AIR 2018 (SC) 2773] in support of his contention that subscribing to the oath is of singular significance and that the consequence for not taking the oath of the office within the specified time are inescapable. W.P.(C).No.36901/22 9 8. The learned counsel for the 7[th] respondent, on the other hand, submits that Section 143(4) is only an enabling provision and it is only if the Government is satisfied that the candidate had not made the oath or affirmation without any sufficient cause that a declaration as provided in the said sub-section can be made by the Government. It is further contended that after the candidate makes the oath or affirmation, the Government would be powerless to issue a declaration as provided in Section 143(4). It is further contended that the 7[th] respondent had, immediately, after Exhibit P1 was passed declaring her as the elected candidate, approached the 4[th] respondent seeking that she may be permitted to subscribe to the oath and that it was only due to the delay on the part of respondents 4 and 5 that the matter was delayed. It is, therefore, contended that the findings in the Government Order is perfectly legal and valid. 9. The learned Government Pleader, the learned counsel for the Corporation as well as the learned counsel appearing for the Election Commission would support the contentions of the 7[th] respondent. W.P.(C).No.36901/22 10 10.Respondents 4 to 8 have placed a counter affidavit on record contending that they were not parties to the suit before the Principal Munsiff Court, Ernakulam and that they came to know about the order of the Munsiff Court only on 01.07.2022, when the 7[th] respondent issued a notice directing to initiate further steps with regard to affirmation or oath as per law. It is submitted that thereafter, legal opinion on the same was obtained on 02.07.2022 and the same was forwarded to District Collector who was the District Election Officer. It is submitted that on 05.08.2022, the State Election Commission, vide Exhibit P10 letter directed the Corporation to take necessary action as envisaged under Section 182 of the Kerala Municipality Act and also to publish the copy of the order in OP(Election) 1/2021 of Munsiff Court, Ernakulam in the notice Board of the Corporation. It is submitted that immediately on the receipt of Ext.P10 letter, the oath taking ceremony was conducted and the 7[th] respondent took oath as Councillor on 11.08.2022 and hence there is no delay on the part of these respondents in allowing the 7[th] respondent to take oath as Councillor. W.P.(C).No.36901/22 11 11.The learned standing counsel appearing for the Election Commission places reliance on the decisions of a Division Bench of this Court in **Balasubramanian v. Chandradas** [2006 (2) KLT 467] and contends that the provisions of Section 12(8A) of the Municipality Act, 1994 which provide for taking of the oath by the Chairperson or Deputy Chairperson and is couched in identical terms as Section 143(4) are only directory and it is not obligatory on the part of the Election Commission which is empowered in the said section to issue a declaration unless the authority is fully satisfied that the non-subscription of the vote within the thirty days by the returned candidate is without reasonable cause. - 12.Having considered the contentions advanced on all sides, I notice that Section 143(4) is an enabling provision which reads as follows:- - “(4) The Government may by notification in the Gazette, declare the office of Councillor as vacated in his own motion where such a Councillor has not assumed charge of his office by making an oath or affirmation without sufficient cause within a maximum period of thirty days from the date by which he was elected as a Councillor.” W.P.(C).No.36901/22 12 13.The only meaning that can be given to the provision is that where the Government is satisfied that it was without any reasonable cause that the returned candidate did not affirm to the oath of office within the time provided, the Government can pass the order making the declaration as provided in the section. In the instant case, the Government has considered the contentions of the petitioner as well as the explanation offered by the 7[th] respondent. It was found that the 7[th] respondent had approached the 4[th] respondent as early as on 1.7.2022. - 14.The learned Government Pleader as well as the learned counsel for the 5[th] respondent would contend that it was only on 5.8.2022 that the State Election Commission had forwarded Exhibit P1 to the Corporation and immediately thereafter steps had been taken for the taking of the oath of office by the 7[th] respondent. - 15.Section 182 of the Kerala Municipality Act reads as follows:- W.P.(C).No.36901/22 13 “Transmission of order to the appropriate authority, etc., and its publication.— As soon as may be after the receipt of any order made by the court under section 176 or section 177, the State Election Commission shall forward copies of the order to the Chairperson of the Municipality concerned and, shall cause the order to be published in such manner as the State Election Commission may deem fit. “ 16.The Government has considered the representation submitted by the petitioners and has come to a definite conclusion that the delay in subscribing the oath by the 7[th] respondent was not without sufficient cause. The 7[th] respondent had also approached the Corporation and the Mayor seeking clarification as to the oath or affirmation to be taken by her well within the thirty days. On receipt of due intimation by the State Election Commission, appropriate steps had also been taken and the 7[th] respondent had taken the oath or affirmation on 11.8.2022. The provisions did not admit an interpretation that in every case where the oath or affirmation is not taken within thirty days from the date of declaration of results, the office of Councillor is to be considered as vacated voluntarily by the returned candidate. The decision relied on by the petitioner itself is authority on the point that the member, who has not subscribed to the oath within the time provided will W.P.(C).No.36901/22 14 not cease to be a member. However, he cannot participate in the proceedings of the Panchayat (or the Corporation in the instant case). However, the provision relied on being only enabling in character, the contention that the 7[th] respondent is liable to be considered to have vacated the office cannot be accepted. In the result, the prayers as sought for in the writ petition cannot be allowed. The writ petition fails and the same is accordingly dismissed. **==> picture [24 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.36901/22 15 ## **APPENDIX OF WP(C) 36901/2022** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE JUDGMENT IN OP(ELECTION) NO.1/2021 OF MUNSIFF'S COURT DATED 22-6-2022 Exhibit P2 TRUE COPY OF REPRESENTATION DATED 8-82022 ISSUED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT. Exhibit P3 THE PHOTO COPY OF THE NOTICE DATED 10-82022 ISSUED BY THE 4TH RESPONDENT Exhibit P4 THE TRUE COPY OF THE LETTER DATED 11-82022 ISSUED BY THE 1ST PETITIONER Exhibit P5 THE TRUE COPY OF THE JUDGMENT IN WP(C) NO.26520/2022 DATED 25-8-2022 Exhibit P6 THE TRUE COPY OF THE REPORT OF THE 6TH RESPONDENT DATED 20-9-2022 Exhibit P7 THE TRUE COPY OF THE OBJECTION DATED 1510-2022 SUBMITTED BY THE 7TH RESPONDENT Exhibit P8 THE TRUE COPY OF THE ORDER DATED 10-112022 ISSUED BY THE 1ST RESPONDENT Exhibit P9 THE TRUE COPY OF THE LETTER DATED 1-72022 ISSUED BY THE 7TH RESPONDENT TO THE 6TH RESPONDENT Exhibit P10 THE TRUE COPY OF THE COMMUNICATION DATED 5-8-2022 ISSUED BY THE SECRETARY OF THE STATE ELECTION COMMISSION W.P.(C).No.36901/22 16 RESPONDENT EXHIBITS EXHIBIT R7(a) true copy of the representation dated 01.07.2022 submitted by respondent no 7 EXHIBIT R7(b) True copy of the communication dated 09.08.2022. EXHIBIT R7(c) True copy of the petition in I.A No. 1/2022 filed in AS (Election) 79/ 2022 before District Court, Ernakulam. True copy PS to Judge