Sulphikar @ Sulphikar Mayoori v. Rafeeq, The State Election Commission and Addl. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** ## **WP(C).No. 21926 of 2018** ## **PETITIONER/S:** **SULPHIKAR @ SULPHIKAR MAYOORI, S/O. S. ABDUL KHADER, AGED 51, VYDIYAN VEEDU, KANNAMPALLY BHAGAM, KAYAMKULAM - 690 502.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.AJAY BEN JOSE SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA** ## **RESPONDENT/S:** **1 RAFEEQ, S/O. RAHIM, VILAYATHU VEEDU, H.NO.345, WAREHOUSE WARD NO. 8, KAYAMKULAM MUNICIPALITY, KAYAMKULAM - PIN 690 502.** **2 THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM -PIN 695 001. *ADDL. STATE OF KERALA, R3 REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **(*ADDL.R3 IS IMPLEADED AS PER ORDER DATED 19.07.2018 IN IA 12834/18.) BY ADVS.** **R1 BY SRI.R.SUNIL KUMAR SMT. A SALINI LAL** **R2 BY SRI. MURALI PURUSHOTHAMAN, SC R3 BY SRI. P.M. MANOJ, SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.11.2018, THE COURT ON 16.11.2018 DELIVERED THE FOLLOWING:** W.P.(C) No.21926 of 2018 2 ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P7 order passed by the Kerala State Election Commission in O.P.No.51 of 2017 dated 29.06.2018, whereby the petitioner is disqualified to continue as a Councillor of Kayamkulam Municipality, in accordance with the provisions of Sec.86 of the Kerala Municipality Act, on the basis of a complaint filed by a voter in Ward No.8 [mistakenly shown as Ward No.18 in the writ petition] of Kayamkulam Municipality, which ward was represented by the petitioner in the writ petition. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner was elected as Councillor, Ward No.8 of Kayamkulam Municipality in the election held on 05.11.2015. While representing so, petitioner was appointed as Director and Chairman of the Board of Directors of the Kerala Agro Industries Corporation, Thiruvananthapuram, as per Government Order dated 27.12.2016, evident from Ext.P1. The Kerala Agro Industries Corporation is a company incorporated under the Companies Act, 1956, and at the time of incorporation of the company, the State Government was a signatory to the Articles of Association. Article 62 of the Articles W.P.(C) No.21926 of 2018 3 of Association enables the Chairman to preside over the general meeting and by virtue of Article 63, the Chairman can adjourn the meeting. So also, as per Article 66, the Chairman has a right for a second/casting vote. Therefore, according to the petitioner, the Chairman has only the powers delineated in the Articles of Association. 3. The Government have also issued order dated 09.09.2013, enumerating the duties and functions of the Chairman in Public Sector Undertaking and prescribing honorarium, sitting fee, use of vehicle etc., evident from Ext.P2. By virtue of Ext.P2, all Chairmen of Public Sector Undertakings are entitled to a honorarium of Rs.20,000/- per month and a sitting fee of Rs.500/- for attending the Board meeting and a car with driver is provided for official tour exceeding 1500 k.ms. per month, which shall be with the approval of Board of Directors. 4. While so, 1[st] respondent filed a petition as O.P.No.51 of 2017 before the 2[nd] respondent, under Sec.92 of the Kerala Municipality Act, 1994 [for brevity, 'the Act, 1994'], alleging that the petitioner accepts honorarium as the Chairman of the above specified Corporation while holding the post of Councillor of the W.P.(C) No.21926 of 2018 4 Municipality, and hence disqualified from continuing as the Councillor of the Kayamkulam Municipality, evident from Ext.P3 complaint. Petitioner has submitted Ext.P4 objection, contending that petitioner as a Councillor is only getting honorarium, and as a Chairman of the Corporation, he was getting only honorarium and that apart, petitioner is not an officer or employee of the company and cannot be a deemed employee because of the acceptance of honorarium. 5. The 1[st] respondent was examined as PW1 and marked Exts.A1 to A4. Ext.A1 is the election identity card of the 1[st] respondent and Ext.A2 is the voters list of Ward No.8 of Kayamkulam Municipality. Ext.A3 is a letter dated 22.05.2017 from the Public Information Officer, Kayamkulam Municipality, informing that petitioner has received an honorarium of Rs.31,060/-. Ext.A4 is an information from the Public Information Officer, Kerala Agro Industries Corporation dated 23.05.2017, intimating that petitioner has not received any salary and received honorarium at the rate of Rs.20,000/- per month. Petitioner was examined as RW1, however, no documents are marked. 6. After appreciating the documents, pleadings and the rival submissions made by the parties, the 2[nd] W.P.(C) No.21926 of 2018 5 respondent as per Ext.P7 order dated 29.06.2018, held that the Agro Industries Corporation is a company incorporated under the Companies Act and is a joint venture of State and Central Governments. It was also held that, since the petitioner was receiving honorarium as the Chairman of Kerala Agro Industries Corporation, and by virtue of Explanation 2 of Sec.86 of the Act, 1994, he shall be deemed to be an employee of the Corporation. It is further held that, besides honorarium, petitioner is entitled to a car with driver, sitting fees, mobile phone facility etc. etc. and hence comes within the disqualification prescribed under Sec.86 of Act, 1994, and therefore, petitioner is disqualified to continue as a Councillor of Kayamkulam Municipality. 7. According to the petitioner, Explanation 2 of Sec.86 of the Act is _ultra vires_ and beyond the legislative competence of the State. Article 243V and 243F of the Constitution of India prescribes disqualification of membership for being chosen and or being a member of a Municipality or Panchayat respectively. One of the disqualification prescribed is on the basis of the disqualification prescribed by any law made by the Legislature. By virtue of Sec.86(1) of the Act, 1994, an officer or an employee in the service 6 W.P.(C) No.21926 of 2018 of a State or Central Government or local authority or Corporation is disqualified from contesting the election and holding the office of a Councillor in a Municipality. 8. It is the case of the petitioner that, Sec.86(1) contemplates an officer or employee in the service of a State. Therefore, according to the petitioner, in order to attract Sec.86(1) of the Act, such person shall be an officer or employee in the service of the State or Corporation. However, Chairman of a Corporation is not an officer or employee in the service of the Corporation. Moreover, by a deeming provision, a person receiving honorarium cannot be brought in the service of a Corporation or State. Therefore, it is the contention of the petitioner, the order passed by the 2[nd] respondent suffers from the vice of arbitrariness and illegality, and gross injustice is done to the petitioner, requiring interference of this Court under Article 226 of the Constitution of India. 9. The 1[st] respondent has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner, and subscribing to the views expressed by the 2[nd] respondent in disqualifying the petitioner. W.P.(C) No.21926 of 2018 7 10. I have heard Sri. S. Sreekumar, learned Senior Counsel appearing for the petitioner, Sri. R. Sunilkumar, learned counsel appearing for the 1[st] respondent, Sri. Murali Purushothaman, learned Standing Counsel appearing for the 2[nd] respondent, and the learned Senior Government Pleader, Sri. P.M. Manoj. Perused the documents on record and the pleadings put forth by the respective parties. 11. Respective counsel addressed their arguments in accordance with the pleadings put forth by them. The issue with respect to disqualification of officers and employees of Government, local authorities etc. are dealt with under Sec.86 of the Kerala Municipality Act, 1994, which read thus: _“_ _**86. Disqualification of officers and** --_ _**employees of Government, local authorities etc.** (1) No officer or employee in the service of a State or Central Government or a local authority or a Corporation owned or controlled by a State or the Central Government or of a company in which a State or Central Government or local authority has not less than fifty one per cent share or of Boards or any University established under a State enactment shall be qualified for election as, or for holding the office of Councillor of a Municipality._ _**Explanation 1** .--For the purpose of this section, company means a Government Company as defined in section 617 of the Companies Act, 1956 (Central Act 1 of 1956) and includes a Co-operative Society registered or deemed to have been registered under the Kerala Co-operative Societies Act, 1969 (21 of 1969)._ _**Explanation 2** .-- For the purpose of this section, the part time employees and persons receiving honorarium except the anganwadi_ W.P.(C) No.21926 of 2018 8 _employees, Balawadi employees and Asha workers shall be deemed to be employees._ _(2) Any officer or employee referred to in sub-section (1) who has been dismissed for corrupt practices or disloyalty shall be disqualified for a period of five years from the date of such dismissal for election as, or for holding office of, Councillor of a Municipality”._ 12. The thrust of the contention advanced by learned Senior Counsel appearing for the petitioner is that, the Explanation 2 of Sec.86 is _ultra vires_ of the provisions of the Constitution, and also it is carving out an exemption quite contrary to the provisions of Sec.86(1). Section 86(1) deals with officer or employee in the service of a State or Central Government or a local authority or a Corporation owned or controlled by the State or the Central Government or of a company in which the State or Central Government or local authority has not less than fifty one per cent share or of Boards or any University etc. etc., creating a bar for holding the office of Councillor of a Municipality. 13. According to the learned Senior Counsel, the Chairman of the Kerala Agro Industries Corporation has limited duties in accordance with the Articles of Association, and he is only receiving honorarium apart from other benefits offered in accordance with Ext.P2. Therefore, the Chairman is not an officer or employee in W.P.(C) No.21926 of 2018 9 that Corporation and the situation being so, the explanation added to incorporate the persons who are receiving honorarium is violative of the provisions contained under Sec.86(1) of Act, 1994. 14. Learned Senior Counsel has invited my attention to the judgments of the apex court in ' _**Bihta Cooperative Development Cane Marketing Union Ltd., and**_ _**Another v. Bank of Bihar & Others**_ ' [AIR 1967 SC 389], ' _**S. Sundaram Pillai and Others v. V.R. Pattabiraman and Others**_ ' [(1985) 1 SCC 591], ' _**M.P. Cement Manufacturers' Association v. State of M.P. and Others**_ ' [(2004) 2 SCC 249] and also the judgment of a learned Single Judge of this Court in ' _**Rajesh O. v. Kerala State Election Commission and Another**_ ' [2010 (4) KHC 140 : 2010 (4) KLT 124]. 15. The main contention advanced by learned Senior Counsel for the petitioner relying upon the aforesaid judgments is that, the explanation added to a statutory provision is not a substantive provision in any sense of the term, but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. Furthermore, it is contended that, no explanation can ordinarily enlarge the scope of the W.P.(C) No.21926 of 2018 10 original section which it explains, but only makes the meaning clear beyond dispute. Therefore, the sum and substance of the contention advanced by learned Senior Counsel is that, by providing explanation, something material is added contrary to the main provision and such an explanation is not clarifying any of the aspects in Sec.86(1) of Act, 1994, so much so, it is submitted, through an explanation, a new aspect is introduced. According to him, explanation itself is bad, and therefore, the findings of the 2[nd] respondent based on Explanation 2 cannot be sustained under law. 16. On the other hand, learned Standing Counsel appearing for the Election Commission submitted that, Explanation 2 is only clarifying, who is the officer in accordance with the mandate contained under Sec.86(1) of Act, 1994, and it is only a clarification made, and therefore, does not suffer any disability _vis-a-vis_ the provisions contained under Sec.86(1) of Act, 1994. The same line of arguments is adopted by learned counsel appearing for the 1[st] respondent also. 17. Having evaluated the situation and perusing the pleadings and documents on record and the files produced by learned Standing Counsel for the Election Commission, I am of the considered opinion that, the sole question to W.P.(C) No.21926 of 2018 11 be considered is, whether Explanation 2 to Sec.86 brought to the statute book is introducing a new stipulation overlooking the provisions contained under Sec.86(1) of Act, 1994. As discussed above, Sec.86(1) of Act, 1994 is dealing with disqualification in respect of holding office of a Councillor of a Municipality under the eventualities prescribed thereunder. Even though petitioner has a contention in the writ petition that the Kerala Agro Industries Corporation is a private company, it is clear that the Kerala Agro Industries Corporation is a company owned by the State as well as the Central Government, and therefore, it comes within the definition of Corporation owned or controlled by the State or the Central Government. 18. Further, Explanation 1 was introduced on and with effect from 14.06.2010, whereby it is stipulated that, for the purpose of Sec.86, company means a Government Company as defined in Sec.617 of the Companies Act, 1956 and includes a Co-operative Society registered or deemed to have been registered under the Kerala Cooperative Societies Act, 1969. Therefore, by virtue of Sec.86(1) read with Explanation 1, it is categoric and clear that a Councillor of a Municipality is governed by the said provision. In my considered view, Explanation 2 W.P.(C) No.21926 of 2018 12 was brought to the statute book on and with effect from 14.06.2010 in order to clarify who is an employee of the State or Central Government or a Corporation owned or controlled by a State or the Central Government and in that process, it is explained that, an employee is a person who receives honorarium also. 19. Therefore, this Court is of the opinion that, as per Explanation 2, what is clarified is the term 'employee' and in that process, it is defined that the person who receives honorarium is also an employee. Therefore, the Explanation provided is only clarifying the contents of Sec.86(1) of Act, 1994. Moreover, the object of Sec.86(1) is to ensure that a person elected as a Councillor of a Municipality is utilizing his time for the purpose of serving his Ward and partake in the meetings of the Municipality without being disturbed in any other manner. So also, when there is any conflict of interest by and between the Corporation chaired by the petitioner and the Municipality in question, it may have serious repercussions, it was thereupon that the Government have decided to carry out necessary amendments in order to tide over the situation. 20. As is noticeable, the explanation has a clear nexus to be achieved in order to protect the objects and W.P.(C) No.21926 of 2018 13 reasons of the main provision. So also, the explanation provided to a main provision is also to be construed in accordance with the purport and purpose of the main provision. So much so, explanation in question clarifies the ambiguity contained under Sec.86(1) of the Act, and therefore, it can never be termed arbitrary or illegal to suffer with any disability under law. That apart, considering the larger interest of the provision to circumscribe the activities of a Councillor, the intention of the legislature shall be given due importance and significance. Moreover, the State Government is empowered under Article 243W(a) of Part IXA of the Constitution of India to make any laws so as to have a proper administration of the local body. Therefore, the Explanation 2 was brought to Sec.86 of Act, 1994, with specific intention and to ensure that the local body is functioning with the help and assistance of the Ward Councillors to the fullest extent, and thereby enabling the local body to discharge the duties in accordance with the need, requirement and interest of the people, over and above the independent and statutory duties to be discharged by the Ward Councillors as per the provisions of Act, 1994. Therefore, in my considered opinion, petitioner has not made out any case so as to W.P.(C) No.21926 of 2018 14 make Explanation 2 to Sec.86(1) arbitrary, unconstitutional or redundant in any manner. 21. So far as the issue with respect to the adjudication by the 2[nd] respondent is concerned, the 2[nd] respondent has entered into clear cut finding on the basis of the evidence tendered by the 1[st] respondent and the documents produced and marked, and providing sufficient opportunity of hearing. I have gone through the order and finds that each and every aspect put forth by the petitioner as well as the 1[st] respondent has taken into account, and thereafter only, the final decision was taken. Having appreciated all these aspects, I have no reason to think that the impugned order passed by the 2[nd] respondent is in any manner illegal and arbitrary, justifying interference of this Court under Article 226 of the Constitution of India. Upshot of the above discussion is, petitioner has not made out any case in order to secure the reliefs sought for in the writ petition. Accordingly, the writ petition is dismissed. ## **Sd/-** ## **SHAJI P.CHALY** ## **JUDGE** W.P.(C) No.21926 of 2018 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF G.O(RT) NO. 1067/2016/AD DATED 21-12-2016 OF THE GOVERNMENT OF KERALA.** **EXHIBIT P2** **TRUE COPY OF G.O(MS) NO. 45/2013/PLG. DATED 09-09-2013 OF THE GOVERNMENT OF KERALA** - **EXHIBIT P3 TRUE COPY OF PETITION AS O.P NO. 51 OF 2017 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT UNDER SECTION 92 OF KERALA MUNICIPALITY ACT.** **EXHIBIT P4 TRUE COPY OF OBJECTION TO EXHIBIT P3 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF LETTER DATED 22-05-2017 ISSUED BY THE PUBLIC INFORMATION OFFICER, KAYAMKULAM MUNICIPALITY (EXHIBIT A3)** - **EXHIBIT P6 TRUE COPY OF INFORMATION DATED 23-05-2017 ISSUED BY THE PUBLIC INFORMATION OFFICER, KERALA AGRO INDUSTRIES CORPORATION LTD (EXHIBIT A4)** **EXHIBIT P7 TRUE COPY OF ORDER IN O.P NO. 51 OF 2017 DATED 29-06-2018 OF THE 2ND RESPONDENT.** RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-