A D GOPI Vs. PRESIDENT

JUDGEMENT

(1.) The point and moment of disqualification of an elected member of a Grama Panchayat and the stage of jurisdiction of the State Election Commission are the issues which arise for consideration in this original petition. It may not be necessary to go into the factual details for the purpose of disposal of this original petition and it will not be proper also for this court at this stage to go into such questions. Yet, it is necessary to refer to certain facts so as to understand the law.

(2.) Petitioner is a member of the Maneed Grama Panchayat, Piravom. He was arrested in connected with Crime No. 18/2002 of Ramamangalam Police Station registered under Sec. 302 and other secs.of the Indian Penal Code. It is not in dispute that the petitioner did not attend the meetings of the Panchayat Committee held on 5/2/2002, 18/3/2002, 25/3/2002 and 26/3/2002. He also did not attend the meetings of the Standing Committee on Finance held on 5-2-2002, 18-3-2002, 25-3-2002 and 26-3-2002. He also did not attend the meetings of the Standing Committee on Finance held on 22-2-2002 and 20-3-2002. According to the petitioner he submitted an application dated 25-3-2002 seeking exemption from attending the meetings as he was in judicial custody. In the meanwhile the meeting scheduled on 8-4-2002 was adjourned. But according to the petitioner the meeting was held with the participation of five members including the petitioner and he withdrew his application for leave. The last undisputed meeting attended by the petitioner is on 22-1-2002. According to the Panchayat, the petitioner is disqualified under Sec. 35(k) of the Act having not participated in the meetings of the Panchayat for three months and the Committee having decided not to grant leave. It was thus decided by the Committee as per Ext.P3 resolution taken on 15-4-2002. Thereafter as per Ext.P2 letter dated 22-5-2002 the petitioner was given intimation by the Secretary of the Panchayat that he is disqualified under Sec. 35 (k) of the Act having not participated in the meetings of the Panchayat during 3 months after 22/1/2002. Petitioner challenges Ext. P2 intimation by the Secretary and also prays for a declaration that the Panchayat Committee has no authority to disqualify a member of the Panchayat. Petitioner also has sought for a consequential declaration that he continues to be a member of the Panchayat. It appears that the Director of Panchayat, in the meanwhile, has taken a view as per Ext.P5 that Ext.P3 resolution is not in order.

(3.) On 16-4-2002 it is seen from Annexure A produced along with the statement filed by the State Election Commission that the Secretary of the Grama Panchayat had referred the matter for a decision by the State Election Commission. The question referred is whether the petitioner had become disqualified in the circumstances. It is seen from Annexure A that there is also a request to take a decision regarding the participation of the petitioner in the meanwhile. As per Annexure C the District Collector had also addressed the State Election Commission to take a decision on the dispute. But the stand taken by the Election Commission is that it is for the Secretary of the Grama Panchayat to intimate the fact of disqualification in writing to the person concerned and to report the same at the next meeting of the Panchayat as per Sec. 37(2) of the Panchayat Raj Act and thereafter only any reference would lie before the Commission and therefore the reference made by the Grama Panchayat Secretary as also the District Collector were refused to be entertained by the State Election Commission holding that the reference is premature. That intimation is Annexure B dated 22-4-2002. It is the stand of the Grama Panchayat that the State Election Commission alone is competent to decide the issue of disqualification and once intimation is given to a member informing the disqualification under Sec. 35 (k), the Panchayat can do anything in the matter only if the State Election Commission issues any orders either interim or final. It is contended that there is no adjudication by the Secretary and the Secretary only intimates the fact of statutory operation by which the person incurred the disqualification of having not attend the three meetings in three months continuously. It is also submitted that against such communication the remedy open to the petitioner is twofold: (1) to approach the Election Commission; or (2) to apply for restoration. As far as Ext. P3 decision of the Panchayat is concerned, the petitioner has to invoke the power of the Government under Sec. 191 if he is aggrieved.