MOHAMMED HANEEFA Vs. SAUDATH ASHARAF

JUDGEMENT

(1.) The 3rd respondent before the learned Single Judge, who is one of the voters of the Grama Panchayat, is in appeal, challenging the judgment Reported in 2013(1) KLT 151 -Omana v. State of Kerala of the learned Single Judge accepting the retrospective operation of an amendment brought out under the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as "the Act") and thus setting at naught the order of disqualification passed by the 2nd respondent, the State Election Commission of Kerala. The undisputed facts are that the 1st respondent herein is an elected member of Ward No. V of the Varantharappilly Grama Panchayat and is the Convenor of the Grama Sabha as contemplated under the Act. The 1st respondent was elected in the year 2010 and is a member of the Grama Panchayat, constituted on 01.11.2010. The 1st respondent, being the Convenor of the Grama Sabha of his Ward and having failed to convene meeting of the Grama Sabha for two consecutive periods after January, 2011 attracted upon himself a disqualification under S. 35(1)(p) of the Act. The appellant approached the 2nd respondent State Election Commission, who, by Exhibit P3, found the 1st respondent to be disqualified from continuing as member of the respective ward of the Varantharappilly Grama Panchayat along with certain other members. Since majority of the members of the Panchayat stood disqualified, on similar grounds, the Government was directed to issue a notification dissolving the Panchayat and to inform the same to the Commission to facilitate the reconstitution of the dissolved Panchayat. Subsequently, an Ordinance was brought in, with express retrospective effect from 1.11.2010, the date of constitution of majority of the Panchayats, now existing in the State of Kerala, substituting the words "twice" in S. 35(1)(p) as "thrice". Hence, the disqualification would apply only if the omission was to convene "three" consecutive Grama Sabhas and not "two", thus presumably removing disability of the 1st respondent and others similarly placed. That there was failure to convene two consecutive Grama Sabhas, is undisputed.

(2.) The questions of law raised, on the Ordinance being brought into force, was whether it had retrospective effect and the retro activity could upset the final orders passed by the Election Commission especially in the absence of a validation clause; which would disable the 1st respondent, who already suffered an order of disqualification by the Election Commission, from claiming the benefit of such retrospective operation of the amendment. The learned Single Judge, relying on the well heeled principle that the Legislature has the power to remove the substratum of any decision prospectively and retrospectively; in the latter event by express words or by necessary implication, found that the disqualification no longer survives and the Election Commission's order cannot be sustained. By the retrospective amendment the law that existed with effect from 1.11.2010 provides for disqualification only if omission to convene a Grama Sabha has occurred "thrice" consecutively and any order of disqualification made on the strength of the unamended provision could not be sustained.

(3.) The retro activity of the amendment, by which the disqualification being attracted on the consecutive failure of not having convened Grama Sabha "twice" having been substituted to "thrice" calls for no adjudication. The intention of the Legislature is clear by the express words used in the amendment making it retrospective from 1.11.2010. This would place the issues arising in the matter in a very narrow compass of the nature and effect of the order passed by the State Election Commission, the consequence of a retrospective amendment on such order and the need for the amendment to be validated by a suitable validation clause.