RAJAN KANNATH Vs. PRADEEP KUMAR

JUDGEMENT

(1.) The four connected Writ Appeals are filed against common judgment of the learned Single Judge disposing of two Writ Petitions filed by two Councilors of the Chengannur Municipality. The orders challenged in the W.P.(C)s were the proceedings issued by the Returning Officer declaring the no confidence motion moved against the Chairman of the Municipal Council, the appellant in Writ Appeal Nos. 753 and 756 of 2010, as defeated and also the proceedings of the Secretary of the Municipality declaring both the petitioners in the W.Ps. as ceased to be members of the Council by virtue of operation of Section 91(k) of the Kerala Municipality Act, 1994 (hereinafter called "the Act"). The learned Single Judge allowed the Writ Petitions vacating the impugned proceedings issued by the Returning Officer and the Secretary of the Society. Further direction issued was to hold fresh meeting of the Council members to move the no confidence motion against the present Chairman, the appellant in the two Writ Appeals mentioned above. While disposing of the Writ Petitions, the learned Single Judge made adverse remarks against the Returning Officer on his complicity in the matter and in order to expunge the adverse remarks against him the Returning Officer has filed Writ Appeals Nos. 876 and 890 of 2010. We have heard Senior Counsel Sri. Kurian George Kannanthanam appearing for the appellants in W.A. Nos. 876 & 890 of 2010, Adv. Sri. A.V.M. Salahuddeen, Counsel appearing for the appellants in W.A. Nos. 753 & 756 of 2010, Standing Counsel appearing for the State Election Commission, Adv. Sri. B. Gopakumar, appearing for the Chengannur Municipality and Counsel appearing for the contesting respondents namely, the petitioners in the W.P.(C)s.

(2.) The facts leading to the controversy are the following. The Municipal Council was constituted after the election in the year 2005. The appellant in Writ Appeal Nos. 753 & 756 of 2010 was elected as Chairman of the Council in the year 2007. However, on account of a shift in the political loyalties of some of the members, the said appellant is said to have lost majority support in the Council. Consequently a no confidence resolution was moved by some of the members which was said to be in accordance with the procedure prescribed. The Returning Officer appointed issued notices to all members of the Municipal Council based on list furnished by the Secretary of the Municipality and 15.3.2010 was fixed the date for moving the no confidence motion. In between, one of the members issued lawyer notice to the Secretary stating that some of the members have lost their membership by virtue of the operation of Section 91(k) of the Act in as much as they have continuously been absent in attending meetings of the Council as well as in Standing Committees for periods and number of meetings in excess of limits prescribed under the said provision. Based on the action initiated by one of the Council members, the Secretary appears to have found five members as disqualified. While both the petitioners in the W.Ps. contend that they have not been served with any proceedings of disqualification, one of them i.e. petitioner in W.P.(C) No. 9468/2010, has obtained a copy of the notice from the Secretary of the Municipality under the Right to Information Act and has produced the same as Ext.P5 in the W.P.(C). According to the said Councilor, Ext.P5 discloses that the disqualification if any was suffered by him during 2006 and 2007 and the same has no relevance so far as his right to take part in the no confidence motion to be moved on 15.3.2010 because for all the meetings after suffering the so-called disqualification, he was allowed to participate and vote in the proceedings of the Council. Inspite of the stand taken by the Secretary of the Municipality that five members have suffered disqualification, the Secretary still chose to include those persons in the list of Council members furnished to the Returning Officer, which led to his issue of notice to all of them to participate in the no confidence motion. During no confidence motion, the Returning Officer based on the Secretary's recommendation declined permission to the five members to participate in the no confidence motion which led to others boycotting the meeting. The problem that cropped up in the said meeting led to involvement of Police for restoring peace. Ultimately in the no confidence motion only one person participated i.e. the Chairman against whom no confidence motion was moved. Even though all except the Chairman against whom no confidence motion was moved did not participate in the voting and they walked out, the Returning Officer still declared the no confidence motion as defeated. The learned Single Judge adversely commented upon the conduct of the Returning Officer and allowed the W.P.(C)s. by directing holding of fresh meeting of the Council for moving the no confidence motion and simultaneously declared that there is no disqualification for the petitioners from participating in the no confidence motion as there is deemed restoration of their membership under Section 93(2) of the Act.

(3.) During hearing we were told that out of the five persons declared disqualified, the Council later restored the membership of three of them in the next meeting itself on their application in terms of Section 93(2) of the Act and so much so, they have no grievance. Two questions, therefore, remain to be considered, first of which is whether the learned Single Judge was justified in holding that the proceeding of the Returning Officer declaring the no confidence motion as defeated is illegal and unsustainable. The second one is whether the learned Single Judge was justified in holding that there is a deemed restoration of membership of the two writ petitioners by virtue of operation of Section 93(2) of the Act.