Sujithlal B.S. v. Kerala State Election Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944** ## **WP(C) NO. 29386 OF 2022** ## **PETITIONER:** **SUJITHLAL.B.S AGED 50 YEARS S/O BHARGAVAN, CHAITHANYA, MUTHUKULAM SOUTH MURI, MUTHUKULAM VILLAGE, ALAPPUZHA DISTRICT, PIN- 690 506.** **BY ADVS. M.V.THAMBAN R.REJI THARA THAMBAN B.BIPIN ARUN BOSE SUNEESH KUMAR R.** ## **RESPONDENTS:** - **1 THE KERALA STATE ELECTION COMMISSION T.C NO. 27/6(2), VIKAS BHAVAN (PO) THIRUVANANTHAPURAM, THIRUVANANTHAPURAM DISTRICT - 695033, REPRESENTED BY ITS SECRETARY.** - **2 THE DIRECTOR OF PANCHAYAT, DIRECTORATE OF PANCHAYAT, THIRUVANANTHAPURAM - 695 033.** - **3 THE DEPUTY DIRECTOR OF PANCHAYAT, OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYAT, ALAPPUZHA, ALAPPUZHA DISTRICT - 689645.** - **4 MUTHUKULAM GRAMA PANCHAYAT, GRAMA PANCHAYAT OFFICE, MUTHUKULAM, MUTHUKULAM (PO), ALAPPUZHA DISTRICT - 690506, REPRESENTED BY ITS SECRETARY.** - **5 THE SECRETARY, MUTHUKULAM GRAMA PANCHAYAT, GRAMA PANCHAYAT OFFICE, MUTHUKULAM, MUTHUKULAM (PO), ALAPPUZHA DISTRICT - 690506.** - **6 JYOTHI PRABHA K.V. UTHRADAM, MUTHUKULAM SOUTH (P.O), ALAPPUZHA DISTRICT - 690506.** **WP(C) NO.29386 OF 2022** **2** **BY ADVS. SRI.DEEPU LAL MOHAN, STANDING COUNSEL, STATE ELECTION COMMISSION, KERALA SRI.S.K.ADHITHYAN SRI.JOMY GEORGE SRI.R.PADMARAJ SRI.M.J.BENNY SRI.DEEPAK MOHAN SRI.R.AJITH KUMAR [V.K.EDOM] SMT.CHITRA N. DAS SRI.RISHAB S. SMT.FATHIMA AFEEDA P. SRI.SATHEESH MOHANAN SRI.ARAVIND V MATHEW, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO.29386 OF 2022** **3** ## **J U D G M E N T** ## _**Dated this the 10[th] day of November, 2022**_ The petitioner is a local resident of Ward No.7 of Muthukulam Grama Panchayat and was the former President of the Panchayat. The 6[th] respondent is the present President of the Panchayat. 2. The petitioner states that after electing as President of the Panchayat, the 6[th] respondent submitted Ext.P1 resignation letter to the Secretary to the Grama Panchayat. The Secretary to the Grama Panchayat received the said letter also. The petitioner approached the State Election Commission contending that once the resignation letter is reached the Secretary, its operation is automatic. The 6[th] respondent, however, continued to act as President. 3. It is discernible from the pleadings in the writ petition that the 6[th] respondent on 12.07.2022 submitted Ext.P2 letter to **WP(C) NO.29386 OF 2022** **4** the Secretary to the Panchayat requesting not to accept her resignation letter. The Kerala State Election Commission, by Ext.P3, directed the Secretary to take a decision as per Rules 3 and 4 of the Kerala Panchayat Raj (Resignation of President, Vice-President or Members) Rules, 2000. Pursuant to Ext.P3, the Secretary has taken a decision and communicated the same to the State Election Commission as per Ext.P4. By Ext.P4, the Secretary communicated his decision not to accept the resignation letter submitted by the 6[th] respondent. 4. The counsel for the petitioner argued that in view of Rule 3 of the Kerala Panchayat Raj (Resignation of President, Vice- President or Members) Rules, 2000, if the President or Vice President or a Member of a Panchayat intends to resign his office under Section 155 of the Act, he may tender his resignation in the form appended to the Rules, to the Secretary. As per Rule 3 sub-rule 5, the resignation shall take effect from the date on which the resignation letter is received by the Secretary and the person **WP(C) NO.29386 OF 2022** **5** resigned shall handover the charge of his official functions, records and properties of the Pachayat to the President or the Vice-President or the person holding charge. 5. The counsel for the petitioner pointed out that as per Rule 4, the information regarding the receipt of resignation of the President or Vice-President or the Member of the Panchayat and the information as to its coming into force shall be reported to the State Election Commission also by the Secretary on the same date itself. The scheme of the rules would indicate that once a resignation letter is received by the Secretary, the Secretary has no option in the matter, but to accept the resignation. The counsel for the petitioner strongly relied on the judgment of this Court in _**Unni T.K. v. Secretary, Perinjanam Grama Panchayat and another** [2009 (3) KLT 150]_ wherein this Court held as follows: Sub-section 3 of S.155 provides that if any dispute regarding any resignation arises, it shall be referred to the State Election Commission for decision and its decision thereon shall be final. R.5 of the Kerala Panchayat Raj (Resignation of President, Vice President or Members) Rules, 2000, hereinafter, the 'Rules', **WP(C) NO.29386 OF 2022** **6** provides the mode of settlement of such disputes. R.5(1) states that any person having a dispute regarding the resignation of the President or Vice President or the Member may, within fifteen days from the date on which the resignation is deemed to have taken effect, prefer a petition before the State Election Commission for its decision and the decision of the Commission thereon shall be final. R.3 prescribes the mode and form for making and tendering resignation. Apart from sub-r.5 of R.3, which provides that the resignation shall take effect from the date on which the resignation letter is received by the Secretary, sub-s. 1 of S.155 of the Act categorically provides that the resignation shall take effect from the date on which it is received by the Secretary and the Secretary shall immediately report the fact to the President and the State Election Commission. Therefore, the effect of resignation commences from the delivery of the resignation letter to the Secretary. All that the Secretary has to do is to acknowledge receipt of the resignation. That it has been so done in the case in hand, is not in dispute. Even if the word 'date' in sub-s.1 of S.155 could be looked at from different angles, it cannot be treated as from the end of the day on which the resignation is tendered. This is because the effect of resignation is not legislatively made to depend on its acceptance by any person or authority or to be controlled by any subsequent event. Hence, a resignation by a President or Vice President or Members of a panchayat in terms of sub-s.1 of S.155 of the Act takes effect from the receipt of the resignation by the Secretary of the panchayat either in person in terms of that sub-section or by the mode, through post, as provided in sub-s.2 of S. 155. 6. In view of the categoric declaration of law by this Court contained in the judgment in _**Unni T.K.**_ (supra), Ext.P4 cannot **WP(C) NO.29386 OF 2022** **7** stand the scrutiny of law, contended the counsel for the petitioner. 7. Standing Counsel representing the 1[st] respondentKerala State Election Commission entered appearance and resisted the writ petition. The Standing Counsel submitted that the letter of withdrawal of the resignation was delivered by hand and was received by the Secretary even before the letter of resignation sent by registered post was served. Therefore, the Secretary sought clarifications from the State Election Commission. The State Election Commission sent Ext.P3 communication to the Secretary directing the Secretary to take a decision in accordance with Rules 3 and 4. 8. The Standing Counsel pointed out that Rule 5 of the Rules, 2000 contemplates settlement of dispute regarding resignation. Rule 5 states that any person having a dispute regarding the resignation of the President or the Vice-President or the Member may, within fifteen days from the date on which the resignation is deemed to have taken effect, prefer a petition before **WP(C) NO.29386 OF 2022** **8** the State Election Commission for its decision and the decision of the Commission thereon shall be final. The State Election Commission has not received any petition filed by the petitioner. 9. I have heard the learned counsel for the petitioner, the respective learned Standing Counsel representing respondents 1, 4 and 5, the learned Government Pleader appearing on behalf of respondents 2 and 3 and the learned counsel for the 6[th] respondent. 10. The pleadings in the writ petition would show that the 6[th] respondent signed Ext.P1 resignation letter on 08.07.2022. Ext.P1 is attested by a Government Officer of gazetted rank. Ext.P2 is the letter sent by the 6[th] respondent requesting the Secretary not to accept her resignation letter. It is discernible from the pleadings and arguments that Ext.P1 letter was sent by post whereas Ext.P2 letter was delivered by hand. Ext.P2 withdrawal of resignation was received by the Secretary at 12.21 pm on 12.07.2022 whereas the resignation letter sent by post was **WP(C) NO.29386 OF 2022** **9** served on the Secretary only at 12.30 pm on 12.07.2022. 11. Therefore, even before the Secretary received the resignation letter, the 6[th] respondent has requested the Secretary not to accept the resignation letter sent by the 6[th] respondent by post. True, the Secretary has no general discretion in the matter in view of the Rules, 2000. This Court has also held that the effect of resignation commences from the delivery of the resignation letter to the Secretary. But, in this case, it is to be noted that the 6[th] respondent has categorically expressed her intention to withdraw the resignation letter even before the resignation letter was served on the Secretary. 12. Therefore, I am of the firm view that the judgment in _**Unni T.K.**_ (supra) cannot be applied to the facts of this case. It is to be further noted that the Rules, 2000 contemplate a mechanism for settlement of dispute regarding resignation. Any person having a dispute regarding the resignation of the President of the Panchayat has to file petition before the State Election **WP(C) NO.29386 OF 2022** **10** Commission within fifteen days from the date on which the resignation is deemed to have taken effect. The State Election Commission would submit that the Election Commission has not received any petition from the writ petitioner. For that reason also, I am not inclined to interfere with the decision taken by the Secretary to the Grama Panchayat as per Ext.P4. For all the afore reasons, the writ petition fails and it is dismissed. **Sd/N. NAGARESH JUDGE** sss **WP(C) NO.29386 OF 2022** **11** ## **APPENDIX OF WP(C) 29386/2022** **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE RESIGNATION LETTER DATED 08.07.2022 OF THE 6TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE LETTER DATED 12.07.2022 OF THE 6TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE LETTER DATED 30.07.2022 OF THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 03.08.2022 ISSUED BY THE 5TH RESPONDENT TO THE 1ST RESPONDENT.**