O.E. Abbas and Wilson Mathai v. Director of Panchayaths and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940 WP(C).No. 29729 of 2018** ## **PETITIONER/S:** |**1**|**O.E. ABBAS,**| |---|---| ||**AGED 46 YEARS,**| ||**S/O EBRAHIM, OLICKAL HOUSE,**| ||**PALLARIMANGALAM P.O.,**| ||**KOTHAMANGALAM, PIN-686671**| |**2**|**WILSON MATHAI,**| ||**AGED 48 YEARS,**| ||**S/O. MATHAI, ELLICKAL HOUSE,**| ||**POTHANIKKAD P.O.,**| ||**KOTHAMANGALAM - 686671.**| ||**BY ADV. SRI.C.DILIP**| ## **RESPONDENT/S:** |**1**|**DIRECTOR OF PANCHAYATHS**| |---|---| ||**PUBLIC OFFICE BUILDING, MUSEUM.P.O,**| ||**THIRUVANANTHAPURAM, PIN-695033.**| |**2**|**STATE ELECTION COMMISSION,**| ||**KERALA, CORPORATION OFFICE COMPLEX,**| ||**LMS JUNCTION, PALAYAM,**| ||**THIRUVANANTHAPURAM - PIN -695033,**| ||**REPRESENTED BY ITS SECRETARY.**| |**3**|**KOTHAMANGALAM BLOCK PANCHAYATH,**| ||**KOTHAMANGALAM - PIN-686691,**| ||**REPRESENTED BY ITS SECRETARY.**| |**4**|**S. UNNIKRISHNAN,**| ||**DIVISIONAL FOREST OFFICER,**| ||**KOTHAMANGALAM - PIN-686691.**| ||**(RETURNING OFFICER,**| ||**KOTHAMANGALAM BLOCK PANCHAYATH,**| ||**KOTHAMANGALAM)**| |W.P.(C) No.29729|of|2018<br>2| |---|---|---| |**5**||**ABY ABRAHAM,**| |||**AMABAZHACHALIL HOUSE,**| |||**VARAPPETTY P.O.,**| |||**KOTHAMANGALAM,**| |||**ERNAKULAM DISTRICT - PIN-686691.**| |**6**||**SHEELA KRISHNANKUTTY,**| |||**PLACHIKKATTU HOUSE,**| |||**NJAYAPPILLY P.O.,**| |||**KUTTAMPUZHA,**| |||**KOTHAMANGALAM - PIN-686691.**| |||**R1 BY SRI. MANURAJ K.J., GOVERNMENT PLEADER**| |||**R2 BY SRI. MURALI PURUSHOTHAMAN, SC**| |||**R3 BY ADV. SRI. P.M. JOSHI**| |||**SMT.SIJI K.PAUL**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.29729 of 2018 3 ## **JUDGMENT** This writ petition is filed by the petitioners seeking the following reliefs: _“a) Call for the records of the case leading up to Ext.P3 and quash the same by issuing a writ of certiorari or any other writ, order or direction; and_ _b) Issue any other appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioners may pray from time to time”._ 2. Facts discernible from the writ petition are as follows: 3. Petitioners and respondents 5 and 6 are elected members of B-72-Kothamangalam Block Panchayat. The 4[th] respondent is the returning officer appointed for conducting elections for the Standing Committees of the Block Panchayat. Due to the resignation of members, vacancies arose in the Welfare and Finance Standing Committees of the Block Panchayat. In the Finance Standing Committee, the post of Chairman (General) became vacant and in the Welfare Standing Committee, two vacancies arose by resignation of Chairman (General) and a lady member. Out of the three seats, in the Welfare Standing Committee, one seat is reserved for lady member of the Block Panchayat. The remaining member in the W.P.(C) No.29729 of 2018 4 Welfare Committee is of a female. 4. The 4[th] respondent issued notice to conduct election on 02.08.2018. The member to the Finance Standing Committee was elected un-contested. Though respondents 5 and 6 have submitted nomination to the Welfare Standing Committee, their nominations were rejected by the 4[th] respondent, for the reason that, at the time of election notification, they were members of another Standing Committee. _Vide_ Ext.P1, petitioners were elected in the vacant seats in the Welfare Standing Committee. Respondents 5 and 6 challenged the election by filing a complaint before the 2[nd] respondent. However, without issuing notice to the petitioners and also without considering the legal issues, 2[nd] respondent passed Ext.P3 order, declaring fresh election. It is thus challenging Ext.P3, this writ petition is filed. 5. A statement is filed for and on behalf of the 2[nd] respondent, the State Election Commission. Among other contentions, it is stated that, the number of members to be included in each Standing Committee has been statutorily determined. The strength of the Kothamangalam Block Panchayat is 14. In terms of the Kerala Panchayat Raj Act (Standing Committee) Rules, 2000, and the 1[st] schedule thereto, the number of members W.P.(C) No.29729 of 2018 5 to be included in the Standing Committee for Finance is 4 and 3 members each in the other Standing Committees, viz., Standing Committee for Development, Standing Committee for Welfare and Standing Committee for Health and Education. 6. As per Sec.162(2) of the Kerala Panchayat Raj Act, 1994 (for brevity, 'the Act, 1994'), one of the seats of members to be elected in every Standing Committee shall be reserved for women. It further provides that, all elected members of the Panchayat except the President and Vice President shall be elected as members of any of the Standing Committees. Section 162(4) provides that, in every Standing Committee, there shall be members elected by the elected members of the Panchayat from among themselves under the system of proportional representation by single transferable vote and a member shall not be a member of more than one Standing Committee at a time. Further, Sec.162(4a) of the Act, 1994 provides that, the members to be elected to each Standing Committee shall be elected under the guidance, supervision and control of the State Election Commission and the Commission shall designate or nominate a Returning Officer for the conduct of such election. 7. In Kothamangalam Block Panchayat, the number of W.P.(C) No.29729 of 2018 6 members to be included in the Standing Committee for Welfare is 3 including the Chairman. In the Standing Committee election held in 2015 after the constitution of the Block Panchayat, one Rajesh A.V. was elected as the Chairman of the Welfare Standing Committee and Smt. Santhamma Pious and Smt. Rachel Baby were elected as the members of the Welfare Standing Committee. Smt. Santhamma Pious was elected against the seat reserved for women in the Welfare Standing Committee, however, Smt. Rachel Baby contested against the general seat/unreserved category. Due to the resignation of Sri.Rajesh A.V., and Smt. Santhamma Pious from the membership of Welfare Standing Committee, there arose two casual vacancies in the Standing Committee for Welfare. The seat vacated by Smt. Santhamma Pious is a seat reserved for women in the Welfare Standing Committee. The Returning Officer took steps to fill up the two casual vacancies of the members of the Standing Committee for Welfare and one vacancy in the Standing Committee for Finance, and the election was slated on 02.08.2018. 8. In the meantime, Sri. Aby Abraham, the 5[th] respondent herein, who was a member of the Development Standing Committee, resigned from the membership of the Standing Committee for Development on 31.07.2018 and the W.P.(C) No.29729 of 2018 7 resignation was duly accepted by the Secretary of the Block Panchayat. Smt. Sheela Krishnankutty, the 6[th] respondent herein, who was a member of the Finance Standing Committee also resigned from membership of the said Committee, by tendering resignation to the Secretary of the Block Panchayat at 10.15 a.m. on 02.08.2018. The said resignation was also duly accepted by the Secretary of the Block Panchayat. In the election to fill up the one vacancy in the Standing Committee for Finance held at 11 a.m. on 02.08.2018, Sri. Rajesh A.V. alone submitted nomination and was declared as elected. 9. The election to fill up the two casual vacancies of the members of Standing Committee for Welfare was also conducted at 11 a.m. on 02.08.2018. In the said election to the Standing Committee for Welfare, Sri. Aby Abraham, the 5[th] respondent, Smt.Sheela Krishnankutty, the 6[th] respondent and the writ petitioners Sri.O.E.Abbas and Sri.Wilson Mathai submitted nominations. However, the Returning Officer without taking notice of the resignation of respondents 5 and 6 from the Standing Committees of Development and Finance respectively, rejected their nominations on the ground that they are already members of other Standing Committees. Accordingly, as could be seen from Ext.P1, nominations of W.P.(C) No.29729 of 2018 8 the writ petitioners were accepted and they were declared elected to the two casual vacancies in the Standing Committee for Welfare. It is pertinent to note that, one of the two vacancies in the Standing Committee for Welfare is reserved for women and the two candidates, i.e., the writ petitioners elected to those vacancies are men which is contrary to the mandates prescribed by the statutes. 10. While so, the 5[th] respondent submitted a complaint before the Commission, pointing out that the nominations of respondents 5 and 6 were wrongly rejected by the Returning Officer and the vacancy reserved for woman in the Standing Committee for Welfare has been filled by men, and therefore, to declare the election to the Standing Committee for Welfare held on 02.08.2018 as void, evident from Annexure-R2(a). Annexure-R2(a) was received in the office of the State Election Commission on 03.08.2018, and the Commission called for an urgent report from the Returning Officer on Annexure-R2(a) complaint. 11. The Returning Officer submitted a report stating that the resignation of respondent No.5 on 31.07.2018 and respondent No.6 on 02.08.2018 from the Standing Committees of Development and Finance respectively, came W.P.(C) No.29729 of 2018 9 to his notice only at the time of filing nominations and hence their nominations for election to Welfare Standing Committee was rejected and that there is already a woman member, Smt.Rachel Baby, in the Welfare Standing Committee, the seat reserved for woman in the said Committee was filled from unreserved category, evident from Annexure-R2(b). 12. The Commission considered Annexure-R2(b) report of the Returning Officer and passed Ext.P3 order. In Ext.P3 order, the Commission found that the election to the seat reserved for women in the Welfare Standing Committee has been wrongly filled by male member and the nominations of respondents 5 and 6 has been rejected without taking note of the fact that they were not members of other Standing Committees at the time of election. According to the Election Commission, the manner in which the election was conducted by the Returning Officer has led to miscarriage of justice. Therefore, the Commission has directed the Returning Officer to rectify the mistake in the conduct of election to the Standing Committee for Welfare and accordingly, the Returning Officer has issued Ext.P4 notice, notifying the election to the two casual vacancies in the Standing Committee for Welfare, as the Returning Officer did not W.P.(C) No.29729 of 2018 10 conduct the election in accordance with the directions and guidelines issued by the Commission in that behalf and also the Rules. So also, it is contended that the election was conducted by the Returning Officer in absolute violation of Sec.162(4a) of the Kerala Panchayat Raj Act, 1994. These are the background facts projected by the respective parties. 13. Having heard respective counsel across the Bar, I am of the considered opinion that, the question centres around Ext.P3 order passed by the 2[nd] respondent. It is an admitted fact that Ext.P3 order is passed by the 2[nd] respondent without hearing the petitioners, who were interested parties in the complaint filed by the 5[th] respondent before the 2[nd] respondent. It may be true that the election was conducted by the 4[th] respondent without following the mandate prescribed under Sec.162 of Act, 1994. It is also evident that, the nominations of respondents 5 and 6 were rejected by the 4[th] respondent without taking into account the resignations submitted by them and accepted by the Secretary of the Block Panchayat before the elections were held. The Returning Officer conducting the election in accordance with the directions of the 2[nd] respondent ought to have been more cautious in the matter of processing the nominations submitted by the W.P.(C) No.29729 of 2018 11 respective parties. Anyhow, since Ext.P3 order is passed by the 2[nd] respondent without hearing the petitioners, I am of the considered opinion that, the action of the 2[nd] respondent is violative of the principles of natural justice, transforming Ext.P3 order into an arbitrary and illegal one, liable to be interfered with by this Court. 14. I have come across a judgment of this Court in ' _**John John @ Onachan v. State Election Commission and Another**_ ' [2015 (3) KHC 642], wherein it was held that the State Election Commission and its officers should realise and understand that they are discharging very important functions prescribed under the Constitution of India and the Statutes in question, in a time bound manner after the declaration of election and any negligent act on their part can interfere with valuable rights of a citizen and cause irreparable injury to him. It was further held that, they are bound to discharge the duties with great caution and circumspection, by adverting to the relevant provisions of law and thereby avoid reckless and negligent decisions from their part. 15. It is also true that there was negligence on the part of the 4[th] respondent in processing and conducting the election. However, I am of the considered opinion that, since the petitioners were aggrieved, notice should W.P.(C) No.29729 of 2018 12 have been issued to them by the Election Commission, before taking any decision adverse to them. Looking at any angle, Ext.P3 order cannot stand the test of law. Therefore, I quash Ext.P3 and direct the 2[nd] respondent to re-consider the issue after issuing notice of hearing to all concerned, and attain finality, at the earliest and at any rate, within a month from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/05.10.2018 W.P.(C) No.29729 of 2018 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTO COPY OF LETTER DATED 02/08/2018 OF THE THIRD RESPONDENT ADDRESSED TO THE SECOND RESPONDENT. EXHIBIT P2 TRUE PHOTO COPY OF LETTER DATED 03/08/2018 ISSUED BY THE 3RD RESPONDENT TO THE SECOND RESPONDENT.** **EXHIBIT P3 TRUE PHOTOCOPY OF ORDER DATED 21/08/2018 PASSED BY THE SECOND RESPONDENT.** - **EXHIBIT P4 TRUE PHOTOCOPY OF NOTICE DATED 01/09/2018 ISSUED BY THE 4TH RESPONDENT TO THE FIRST PETITIONER.** **RESPONDENTS' ANNEXURES :** **ANNEXURE-R2(A) THE PHOTOCOPY OF THE COMPLAINT SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 2ND RESPONDENT. ANNEXURE-R2(B) THE PHOTOCOPY OF THE REPORT NO.A2-5523/2015 DATED 14.08.2018 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT.** //TRUE COPY// P.S. TO JUDGE St/-