Saithali Neelangadan v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** **WP(C).No.10216 OF 2020(B)** ## **PETITIONER/S:** **SAITHALI NEELANGADAN, AGED 59 YEARS S/O.MUHAMMED NEELANGADAN HOUSE, VELLAYOOR.P.O, PIN-679327, MALAPPUAM DISTRICT.** **BY ADVS. SRI.M.RAJENDRAN NAIR SRI.ABRAHAM P.GEORGE SMT.M.SANTHY** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001** - **2 KALIKKAVU GRAMA PANCHAYAT, KALIKKAVU, PIN-676525, MALAPPUAM DISTRICT, REPRESENTED BY ITS SECRETARY.** - **3 SECRETARY, BLOCK PANCHAYAT, KALIKKAVU.P.O, PIN-676525, MALAPPURAM DISTRICT.** - **4 NAJEEB, KARUVATHIL HOUSE, KALIKKAVU.P.O, PIN-676525, MALAPPUAM DISTRICT.** - **5 MANSOOR, ERIYATTUKUZHIYIL HOUSE, VELLAYOOR.P.O, PIN-679327, MALAPPUFAM DISTRICT.** - **6 SUFAIRA, MANOORKKARA, PARASSERY, ADAKKAKUNDU.P.O, PIN-676525, MALAPPURAM DISTRICT.** -2- W.P.(C). No. 10216 of 2020 - **7 ASMABI, CHEERANTHODIKA HOUSE, KARTHENI, ANCHACHAVADI.P.O, PIN-672525** - **8 MUHAMMED HARIS, POTTENGAL HOUSE, PALLISSERY, ANCHACHAVADI.P.O, PIN-67252** - **9 AYISHA, KARTHARTHODIKA HOUSE, AMBALAKKADAVU, AMBALAKKADAVU.P.O, PIN-676525** - **10 ABDUL NAZAR, VILAPOYIL HOUSE, ELIKKOTTIL, KALIKKAVU.P.O, PIN-676525** - **11 SOUMYA, CHERIKKAMMAL HOUSE, ENATHI, ARIMANNAL.P.O, PIN-676525** - **12 IMBICHI BEEVI, VADAKKENGARA, PALLIKUNNU, KALIKKAVU.P.O, PIN-676525** - **13 ASMABIU, VATTIPARAMBATH HOUSE, AYLASSERY, VELLAYOOR.P.O, PIN-679327** - **14 PREETHI, MONTHAYIL HOUSE, AYLASSERY, VELLAYOOR.P.O, PIN-679327.** - **15 ADDL R15, THE STATE ELECTION COMMISSSION KERALA, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS SECRETARY.** - **IS SUO MOTU IMPLEADED AS PER ORDER DATED 0506-2020.** **R3 and Addl. R15 BY ADV. SRI.MURALI PURUSHOTHAMAN** - **R4-14 BY ADV. SRI.P.J.MATHEW** - **R4-14 BY ADV. SRI.EBIN MATHEW** ## **SRI JESTIN MATHEW-GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -3- W.P.(C). No. 10216 of 2020 ## **JUDGMENT** The petitioner, who is the President of the 2[nd] respondent Kalikavu Grama Panchayat has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P2 notice dated 19.05.2020 issued by the 3[rd] respondent, under sub-section (3) of Section 157 of the Kerala Panchayat Raj Act, 1994, convening a meeting of the elected members of the Panchayat for the consideration of the motion of no confidence proposed in Ext.P1 notice of intention dated 18.05.2020, against the petitioner, delivered by respondents 4 to 14 to the 3[rd] respondent, who is the officer authorised by the State Election Commission, Kerala in that behalf. The petitioner has also sought for an order directing the 3[rd] respondent not to proceed with Exts.P1 and P2 during the period of lock down in connection with COVID19. 2. On 25.05.2020, when this writ petition came up for admission, this Court admitted the matter on file. The learned Senior Government Pleader took notice for the 1[st] respondent and the learned Standing Counsel for the State Election -4- W.P.(C). No. 10216 of 2020 Commission, Kerala took notice for the 3[rd] respondent, who is the officer authorised by the Commission to convene the meeting of the elected members of the 2[nd] respondent Panchayat to consider the motion of no confidence. This Court issued notice to respondents 2, 3 and respondents 5 to 14 by speed post. 3. On 25.05.2020, this Court granted an interim order staying all further proceedings pursuant to Ext.P2 notice issued by the 3[rd] respondent, for a period of one month. The learned Standing Counsel for the State Election Commission was directed to ascertain and get instructions as to whether or not Ext.P2 notice has been sent by registered post or has been served in any other mode, etc. and whether general election to the Panchayat will have to be conducted by October, 2020. Such a direction was issued by this Court, taking note of the submission made by the learned counsel for the petitioner that Ext.P2 notice convening the meeting of the elected members of the Panchayath for the consideration of the motion of no confidence proposed in Ext.P1 notice, was served in person and not by registered post, as mandated by -5- ## W.P.(C). No. 10216 of 2020 sub-section (4) of Section 157 of the Kerala Panchayat Raj Act, and as such, the procedure adopted by the 3[rd] respondent is contrary to the law laid down by this Court in **Anitha v. Kanjirappilly Block Panchayat [2004 (3) KLT 211]** . 4. A counter affidavit has been filed by respondents 4 to 14, on 28.05.2020, opposing the reliefs sought for in this writ petition. Along with the counter affidavit, the said respondents have also filed I.A.No.1 of 2020, seeking an order to vacate the interim order granted on 25.05.2020. 5. A statement has been filed on behalf of the 3[rd] respondent, on 29.05.2020, opposing the reliefs sought for in this writ petition. 6. The petitioner has filed a reply affidavit, on 01.06.2020, which was re-presented after curing the defects on 05.06.2020. 7. On 05.06.2020 when this writ petition was heard at length, it was noticed that the State Election Commission, Kerala is not made a party to this proceedings, though the officer authorised by the State Election Commission to convene a meeting for the consideration of the motion of no -6- W.P.(C). No. 10216 of 2020 confidence is arrayed as the 3[rd] respondent. In such circumstances, this Court _suo-motu_ impleaded the State Election Commission, Kerala, represented by its Secretary, as the additional 15[th] respondent and the learned Standing Counsel took notice for the said respondent. 8. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the 1[st] respondent State; the learned Standing Counsel for the State Election Commission, Kerala, representing the 3[rd] respondent and the additional 15[th] respondent; and also the learned counsel for respondents 4 to 14. 9. The petitioner is an elected member from Ward No.17 Vellayoor of the 2[nd] respondent Panchayat. There are 19 Wards in the Panchayat. In the election conducted in the year 2015, the Communist Party of India (Marxist) secured 8 seats; the Indian National Congress secured 6 seats; Indian Union Muslim League secured 5 seats. The petitioner, who won election as a candidate sponsered by Communist Party of India (Marxist), was elected as the President of the Panchayat. After eight months, a no confidence motion was -7- W.P.(C). No. 10216 of 2020 moved against the petitioner and he was ousted from the post of the President. Subsequently, the 10[th] respondent, a member of Indian Union Muslim League, was elected as the President. After one year, the 10[th] respondent resigned and the 4[th] respondent was elected in his place, who continued in that post for the next two years. After his resignation, election was conducted on 16.11.2019, in which the petitioner was again elected as the President of the Panchayat. Alleging violation of whip, O.P.Nos.58, 59 and 60 of 2019 are moved before the State Election Commission, in order to disqualify respondents 4, 5 and 6, and those petitions are now pending consideration before that Commission. 10. Respondents 4 to 14 issued Ext.P1 notice of intention dated 18.05.2020, of their intention to move a no confidence motion against the petitioner. Based on Ext.P1 notice, the 3[rd] respondent issued Ext.P2 notice dated 19.05.2020, in exercise of his powers under sub-section (3) of Section 157 of the Kerala Panchayat Raj Act, convening a meeting of the elected members of the Panchayat, after complying with the safety protocol in connection with COVID- -8- W.P.(C). No. 10216 of 2020 19, for the consideration of the no confidence motion, scheduling the meeting on 01.06.2020, at 10.30 AM, at the Meeting Hall of the Panchayat. 11. In the writ petition, the petitioner would contend that service of Ext.P2 notice by hand is contrary to the provisions under sub-section (4) of Section 157 of the Kerala Panchayat Raj Act, which contemplates notice by registered post to the elected members of the Panchayat, not less than seven clear days of any meeting. The petitioner would also contend that, since the Panchayat has a key role in implementing COVID-19 related activities, the removal of the President at this stage will badly affect those activities. In order to substantiate the said contention the petitioner would place reliance of Ext.P3 Government Order dated 06.05.2020. 12. In the counter affidavit filed by respondents 4 to 14, it is pointed out that Ext.P2 notice issued by the 3[rd] respondent for convening the meeting of the elected members of the Panchayat for consideration of Ext.P1 notice of intention to move no confidence motion was sent by registered post to the elected members, as per the mandate of sub-section (4) -9- ## W.P.(C). No. 10216 of 2020 of Section 157 of the Kerala Panchayat Raj Act. The petitioner suppressed the said fact in the writ petition. The document placed on record as Ext.R4(a), along with the counter affidavit filed by respondents 4 to 14, is the envelop in which the 4[th] respondent received Ext.P2 notice, which was sent through registered post on 20.05.2020. In the counter affidavit, it is also pointed out that the meetings of the Panchayat Committee are being conducted in the usual manner. On 27.05.2020, one such meeting was convened, as evident from Ext.R4(b) notice dated 22.05.2020. Respondents 4 to 14 would allege that there was a threat from the side of the petitioner and his supporters that they will not permit them to enter into the Panchayat premises, on 01.06.2020, in the proposed meeting for consideration of Ext.P1 notice of intention to move no confidence motion. Therefore, they submitted Ext.R4(c) representation dated 21.05.2020 before the Circle Inspector of Police, Kalikavu Police Station. In the counter affidavit, respondents 4 to 14 would point out that since Ext.P2 notice was issued by registered post, as evident from Ext.R4(a), there is absolutely no legal bar in convening -10- W.P.(C). No. 10216 of 2020 the meeting on 01.06.2020 to consider the no confidence motion and that, there is absolutely no statutory bar in moving no confidence motion, when the term of the committee will expire within six months. 13. A statement on behalf of the 3[rd] respondent is also placed on record, wherein it is stated that Ext.P2 notice for consideration of the motion of no confidence was sent by registered post to all elected members of the Panchayat, by the 3[rd] respondent, as provided under sub-section (4) of Section 157 of the Kerala Panchayat Raj Act and therefore, there is no violation of the dictum laid down by this Court in **Anitha's case (supra)** . Relying on the judgment of this Court in **Joseph Varghese v. Block Development Officer [2003(1) KLT 321]** , the 3[rd] respondent would contend that seven clear days contemplated in sub-section (4) of Section 157 of the Kerala Panchayat Raj Act, has to be counted from the date of despatch of notice and not from the date of receipt of notice. As per the postal endorsement, Ext.P2 notice was sent by registered post from Kalikavu Post Office to the house of the 4[th] respondent, on 20.05.2020. Along with the -11- W.P.(C). No. 10216 of 2020 statement, Ext.R3(a) order dated 24.04.2020 of this Court in W.P.(C)No.9371 of 2020, in respect of another Grama Panchayat, is placed on record, in which a learned Judge of this Court deferred the meeting scheduled to be held on 27.05.2020 to consider the no confidence motion against the President and Vice President of that Grama Panchayat, and opined that in a situation arising out of lock down due to COVID-19 and in view of sub-section (6) of Section 157 of the Kerala Panchayat Raj Act, it may not be advisable to held meeting to consider no confidence motion during lock down period. 14. Section 157 of the Kerala Panchayat Raj Act deals with motion of no-confidence. As per sub-section (1) of Section 157, subject to the provisions of this section, a motion expressing want of confidence in the President or the VicePresident of a Panchayat may be moved in accordance with the procedure laid down in Section 157. As per sub-section (2) of Section 157, 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 numbers of elected members -12- W.P.(C). No. 10216 of 2020 of the Panchayat concerned as shall constitute not less than one-third of the sanctioned strength of elected members of that 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 authorised by the State Election Commission in this behalf. As per sub-section (3) of Section 157, 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. As per sub-section (4) of Section 157, 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 therefore. Notice regarding this shall be affixed in the office of the Panchayat. 15. A plain reading of sub-sections (3) and (4) of -13- W.P.(C). No. 10216 of 2020 Section 157 of the Kerala Panchayat Raj Act, makes it explicitly clear that, on receipt of a written notice in the prescribed form of intention to move any no confidence motion, which is signed by such elected members of the Panchayat, as specified in sub-section (2), the authorised officer shall convene a meeting of the elected members of the Panchayat for consideration of no confidence motion, not later that fifteen working days from the date on which the notice under sub-section (2) is delivered to him. As per sub-section (4) of Section 157, the authorised officer referred to in subsection (2) shall sent the notice to the elected members of the Panchayat concerned by registered post, not less that 7 clear days of any such meeting and the notice shall also be affixed in the office of the Panchayat. 16. In **Joseph Varghese's case (supra)** , the contentions raised before this Court was that there was only 5 clear days between the date of receipt of notice of no confidence motion and the date of meeting and therefore, the meeting was convened in violation of the statutory mandate of sub-section (4) of Section 157 of the Kerala Panchayat Raj -14- W.P.(C). No. 10216 of 2020 Act. Repelling the aforesaid contention taken by the petitioner therein, this Court held that, sub-section (3) says that the authorised officer shall convene a meeting of the Panchayath Committee to consider the no confidence motion on a date which is not later than fifteen working days from the date on which the notice under sub-section (2) is delivered to him. So, the Legislature has fixed an outer limit for convening the meeting. The case of the petitioner is that the seven clear days contemplated under sub-section (4) should be between the date of receipt of the notice and the date of convening of the meeting. If such an interpretation is accepted, the members can dodge the receipt of the notice for a few days and effectively prevent any meeting scheduled to be held to consider the no confidence motion. Having regard to the time limit of fifteen days fixed in sub-section (3), if the interpretation advanced by the petitioner to sub-section (4) is accepted, it will defeat the operation of the provisions regarding the no confidence motion. It is a settled principle of interpretation of Statutes that an interpretation which will result in making the provision unworkable should not be -15- W.P.(C). No. 10216 of 2020 adopted by the Court. Therefore, this Court did not accept the contention urged by the petitioner regarding the interpretation of sub-section (4). 17. In **Anitha's case (supra)** , this Court held that, as per the mandate of sub-section (4) of Section 157 of the Kerala Panchayat Raj Act, the authorised officer is required to send, by registered post, the notice of his intention to convene the meeting to consider the no confidence motion, giving seven clear days from the date of despatch of notice. In the said decision, this Court held further that the provisions under the Panchayat Raj (Manner of Service of Notices) Rules, 1996 has no application in the procedure contemplated under Section 157 of the said Act. 18. The fact that the 3[rd] respondent authorised officer issued Ext.P2 notice by registered post, on 20.05.2020, is not in dispute. The argument of the learned counsel for the petitioner is that, since sub-section (4) of Section 157 of the Kerala Panchayat Raj Act contemplates only a single notice, the second notice issued by the 4[th] respondent, after service of Ext.P2 notice in person, is legally impermissible and as -16- W.P.(C). No. 10216 of 2020 such, no meeting can be convened for the consideration of the motion of no confidence proposed in Ext.P1. 19. The petitioner has absolutely no case that there is any difference in the contents of Ext.P2 notice served in person, of the meeting convened for the consideration of the motion of no confidence proposed in Ext.P1, and Ext.P2 notice served through registered post. When the notice sent through registered post satisfies the mandatory requirement of subsection (4) of Section 157 of the Act, the petitioner cannot raise any legal and tenable objections against the convening of meeting based on that notice. 20. The learned counsel for the petitioner would contend that the consideration of Ext.P1 motion of no confidence has to be deferred for the time being, in view of the safety protocol in connection with COVID-19. 21. The fact that the meetings of the Panchayat Committee are being conducted during lock down period, after complying with the safety protocol in connection with COVID19 is not in dispute. The said fact is evident from Ext.R4(b) notice dated 22.05.2020. During the course of arguments, it -17- W.P.(C). No. 10216 of 2020 was pointed out by the learned Standing Counsel for the State Election Commission that this Court has already disposed of W.P.(C)No.9371 of 2020 in which Annexure-R3 order dated 22.04.2020 was passed, by permitting the meeting to be convened within fifteen working days from the date of judgment, after complying with the safety protocol in connection with COVID-19. 22. In such circumstances, this Court finds no reason to restrain the 3[rd] respondent from proceeding further with the consideration of the motion of no confidence proposed in Ext.P1 notice of intention dated 18.05.2020, against the petitioner. Since the date of meeting mentioned in Ext.P2 notice is already over, the 3[rd] respondent shall convene another meeting to consider Ext.P1 notice of intention to move no confidence motion, within fifteen working days from this date, after giving notice to the petitioner and other elected members of the Panchayat, as per the statutory mandate of sub-section (4) of Section 157 of the Kerala Panchayat Raj Act. 23. The learned Standing Counsel for the State Election -18- W.P.(C). No. 10216 of 2020 Commission, shall inform the outcome of this writ petition to the 3[rd] respondent, forthwith, so as to enable him to take necessary steps. The writ petition is disposed of as above. Sd/- **ANIL K.NARENDRAN JUDGE** das -19- W.P.(C). No. 10216 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 THE TRUE PHOTOCOPY OF THE NOTICE OF MOTION OF NO CONFIDENCE AND COPY OF RESOLUTION** - **EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT UNDER SECTION 157(3) OF KERALA PANCHAYAT RAJ ACT** - **EXHIBIT P3 THE TRUE COPY OF THE ORDER NO.831/2020LSGD DATED 06.05.2020** - **EXHIBIT P4 TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE POST MASTER, VELLAYOOR POST OFFICE DATED 27.05.2020** - **EXHIBIT P5 TRUE PHOTOCOPY OF DELIVERY MANIFEST/CERTIFICATE ISSUED FROM THE POST OFFICE, VELLAYOOR ALONG WITH THE COPY OF ACKNOWLEDGEMENT CARD** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R4(a):** - **TRUE COPY OF THE NOTICE BEARING NO.A884/20 DATED 19/05/2020 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT ALONG WITH THE POSTAL ENVELOPE.** - **EXHIBIT R4(b): THE TRUE COPY OF THE MEETING NOTICE ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT DATED 22/05/2020.** **EXHIBIT R4(c): TRUE COPY OF THE REPRESENTATION TO THE CIRCLE INSPECTOR OF POLICE KALIKAVU DATED 21/05/2020 ALONG WITH THE ACKNOWLEDGEMENT RECEIPT.**