Roopavani Bhat v. Kerala State Election Commission, The Secretary, Manjeshwar Block Panchayat Office, Enmakaje Grama Panchayat (Represented by its Secretary) and The Returning Officer/Agricultural Officer, Enmakaje Grama Panchayat, Kasaragod District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY ,THE 24TH DAY OF SEPTEMBER 2018 / 2ND ASWINA, 1940** ## **WP(C).No. 30048 of 2018** ## **PETITIONER/S:** **1 ROOPAVANI BHAT, AGED 43 YEARS, W/O RAMANANDA GOLWALKAR Y, MEMBER, ENMAKAJE GRAMA PANCHAYAT, PERLA, KASARAGOD DISTRICT.** **BY ADVS. SRI.PEEYUS A.KOTTAM SRI.K.A.MOHAMMED ALI JAWHAR** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, PIN-695 033.** - **2 THE SECRETARY, MANJESWARAM BLOCK PANCHAYAT OFFICE, KASARAGOD DISTRICT, PIN - 671 323.** - **3 ENMAKAJE GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PERLA, KASARAGOD DISTRICT, PIN - 671 552.** - **3 THE RETURNING OFFICER/AGRICULTURAL OFFICER KRISHI BHAVAN, ENMAKAJE GRAMA PANCHAYAT, KASARAGOD DISTRICT, PIN - 671 552.** **R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.30048 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner, who is the elected member of Ward No.8 of 3[rd] respondent Panchayat, seeking to quash Ext.P4 order passed by the 1[st] respondent, Kerala State Election Commission, dated 06.09.2018, wherein, it was held that the notice issued to discuss the no confidence motion against the President and Vice-President is in accordance with law and as provided under Sec.157(3) and (4) of the Kerala Panchayat Raj Act, 1994 (for short, 'the Act, 1994'). Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner is the elected member of Ward No.8 of the 3[rd] respondent Panchayat. A no-confidence motion was moved against the President and Vice-President. The 1[st] respondent authorized the 2[nd] respondent to convene the meeting of no-confidence motion against the President and Vice-President of the 3[rd] respondent Panchayat. The 2[nd] respondent issued notice to the members informing that the meeting is scheduled to 08.08.2018 and 09.08.2018 respectively, to consider the no-confidence motion. According to the petitioner, the notice is served on the petitioner and the other members just before the W.P.(C) No.30048 of 2018 3 scheduled date of the meeting. Therefore, the contention advanced by the petitioner is that, 2[nd] respondent has not complied with the mandatory requirements as per Section 157(3) and (4) of Act, 1994. It is also pointed out that, to a few of the members, notice was served on 06.08.2018. Even though the petitioner objected the convening of the meeting due to non-compliance of the mandatory procedural requirements, 2[nd] respondent proceeded with the meeting, ignoring the objections. 3. Having been aggrieved by the action of the 2[nd] respondent, petitioner has challenged the action before the 1[st] respondent, and even though, initially, an interim order was granted, later, the 1[st] respondent through e-mail, informed that the petition is rejected. According to the petitioner, the rejection of the application without even providing an opportunity of hearing and without appreciating the provisions mentioned above of the Act, 1994, Ext.P4 order of the 1[st] respondent is arbitrary and illegal, liable to be interfered with by this Court under Article 226 of the Constitution of India. W.P.(C) No.30048 of 2018 4 4. I have heard Sri. Peeyus A. Kottam, learned counsel for the petitioner and Sri. Murali Purushothaman, learned Standing Counsel for the 1[st] respondent, and perused the pleadings and the documents on record. 5. The discussion made above would make it clear that, the sole question to be considered by this Court is, whether the notice issued scheduling the no confidence motion against the President and VicePresident of the 3[rd] respondent Panchayat is legally valid or not. The issue is guided by Sec.157 of the Kerala Panchayat Raj Act, 1994. Section 157(1) deals with motion of no-confidence. Sub-section (2) thereunder deals with written notice, which stipulates that “written notice in such form as may be prescribed of the intention to move any motion referred to in sub-section (1) signed by such number of elected members of the Panchayat concerned as shall constitute not less than one-third of the sanctioned strength of elected members of the Panchayat, together with a copy of the motion which is proposed to be moved shall be delivered in person by any of the elected members of the Panchayat signing the notice, to the officer as may be authorized by the State Election Commission in this behalf”. Sub-section (3) W.P.(C) No.30048 of 2018 5 thereunder stipulates that, “the officer referred to in sub-section (2) shall convene a meeting of the elected members of the Panchayat for the consideration of the motion, to be held at the office of the Panchayat at a time appointed by him which shall not be later than fifteen working days from the date on which the notice under sub-section (2) is delivered to him.” Sub-section (4) states that, “the officer referred to in sub-section (2) shall send by registered post to the elected members of the Panchayat concerned notice of not less than seven clear days of any meeting held under this section and the time appointed therefor. Notice regarding this shall be affixed in the office of the Panchayat. 6. The contention advanced by learned counsel for the petitioner is that, as is contemplated under subsection (4) of Sec.157, petitioner and others are not served with notices of seven clear days. However, in my considered opinion, sub-section (4) only contemplates sending of the notice by registered post to the elected members of the Panchayat concerned within seven clear days of any meeting. Therefore, the essence of the said provision is sending of the said notice of not less than seven clear days of the meeting scheduled. There is no W.P.(C) No.30048 of 2018 6 case for the petitioner that notice was not sent either to the petitioner or others with not less than seven clear days of the meeting scheduled. The said question was considered by this Court in ' _**Joseph Varghese v. B.D.O., Ranni**_ ' [2003 KHC 46], and held that such a contention is against the provisions of sub-section (4) and further held that, what is contemplated under subsection (4) is only sending of notice with seven clear days of meeting. I am in respectful agreement with the proposition of law laid down by the learned Single Judge of this Court in ' _**Joseph Varghese**_ ' ( _supra_ ). 7. Yet another contention advanced by learned counsel for the petitioner is that, 1[st] respondent has not provided an opportunity of hearing to the petitioner before passing Ext.P4 order. At the first instance one may find it as a valid contention advanced by the petitioner. However, fact remains, the petition filed by the petitioner before the 1[st] respondent is not a statutory appeal or application. That apart, the case of the petitioner revolves around the interpretation of the provisions of Sec.157(4), and there is no point also in sending back the matter, since it will become a futile exercise and the theory of 'useless formality' clearly W.P.(C) No.30048 of 2018 7 applies in the facts and circumstances of the case. That being the situation, I do not find any force in the contention so advanced by the petitioner. In the result, writ petition fails, accordingly it is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/25.09.2018 W.P.(C) No.30048 of 2018 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT TO THE MEMBERS.** **EXHIBIT P2 TRUE COPY OF THE NOTICE SERVED ON 03.08.2018 TO THE 7TH WARD MEMBER SMT. SASIKALA.** **EXHIBIT P2(A) TRUE COPY OF THE NOTICE SERVED ON 06.08.2018 OT THE 3RD WARD MEMBER SMT.MAMATHA RAI.** **EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE ORDER OF CHIEF ELECTION COMMISSION DATED 06.09.2018.** **EXHIBIT P5 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT WITH REGARD TO CONDUCT OF ELECTION OF THE PRESIDENT AND VICE-PRESIDENT OF 3RD RESPONDENT PANCHAYAT.** RESPONDENTS' EXHIBITS : NIL //TRUE COPY// P.S. TO JUDGE St/-