CHANDRA NAIK Vs. PAIVALIKKE GRAMA PANCHAYAT

JUDGEMENT

(1.) The writ petitioner is the President of Paivalikke Grama Panchayat, under orders to be unseated vide, the decision of the Munsiff in O.P.(Election) No. 13/2003 on the ground that he is disqualified to contest the election to the office of the President of the Panchayat which is reserved to the Scheduled Tribe community. He ceased to belong to Scheduled Tribe as per the notification dated 8.1.2003 of the Scheduled Castes & Scheduled Tribes Orders (Amendment) Act, 2002. The 'Maratti' community to which the writ petitioner belonged was removed from the list of Scheduled Tribes. He was an elected member of the Panchayat from the reserved constituency for the Scheduled Tribes i.e., Ward No. 9 prior to the above said law. All the same, despite the deletion of the Maratti community from the category of Scheduled Tribes, the post of the President still stood reserved for the Scheduled Tribes vide notification No. 315/2000 dated 28.7,2000. The then President of the Panchayat who belonged to the same Scheduled Tribe was ousted from Presidentship on account of a no confidence motion which was put to vote and passed on 4.9.2000. It is the above episode that snowballed into the present impasse. Of the rest of the 15 members of the Panchayat, three belonged to the Scheduled Tribe Maratti community and there is no other Scheduled Tribe member either. In the vacancy that ensued to the office of the President, writ petitioner filed nomination which was objected to by the respondent. He aspired to get elected to the post of the President of the Panchayat in case it is dereserved. The objection was overruled by the Returning Officer. He also filed a Writ Petition before this Court. The Writ Petition was dismissed with the observation that the same is prematurely instituted and that his grievance can be raised before the appropriate authorities, and if turned down, can be taken up before the empowered Court after election. As already noted, the case of the respondent before the Court below is that the writ petitioner ceased to be a member of the Scheduled Tribe by virtue of the notification dated 8.1.2003 and hence he is disqualified to be a candidate for the post of President, the election to which was conducted on 7.10.2003. The writ petitioner won the election but the Court below upheld the contention of the respondent that the petitioner is disentitled to contest as he no longer belonged to the Scheduled Tribe. The writ petitioner has denounced the decision in this regard alleging that the same is vitiated by erroneous interpretation of the provisions concerned and based on imbecilic logic.

(2.) According to the writ petitioner, once the election to the Panchayat is over, the statutory term of five years would have to be completed and that no amendment of law would result in affecting the status of the body as well as that of the members which is clearly inferrable from the constitutional provision in this regard, i.e. Article 243E, Clause (2). The dereservation so far as the Maratti community is concerned, is not intended to have retrospective effect and every privilege available to the particular member cannot be taken away during the above span of 5 years. It was also contended that reservation to the Scheduled Castes and Scheduled Tribes envisaged under the Constitution vide Article 243D and Section 153(3)(a) of the Kerala Panchayat Raj Act, 1994 conceived and implemented at the inception of the commencement of election, i.e., at the time of delimitation of the constituencies, is based on the percentage of the population of the Scheduled Castes and Scheduled Tribes in the State and in the different levels of the Panchayat institutions and hence any alteration or reduction in the number of the offices of the President reserved for the particular depressed sections of the community would overturn, upset and destablise the entire scheme. Section 149 of the Panchayat Raj Act specifically provides that the term of the members is for five years from the date fixed for convening the first meeting of the Panchayat; and as as already noted, Article 243E(2) interdicts that amendment of any law shall not have the effect of dissolution of the Panchayat at any level till the expiration of the duration stipulated in Clause (1), i.e. 5 years. Hence, according to the writ petitioner, deleting Maratti community subsequent to his election to the Panchayat is not intended to render him disqualified as otherwise the same would delink the chain midway which is not the intended consequence, vide Article 243E(1) and (2) of the Constitution and Sections 149 and 153 of the Kerala Panchayat Raj Act. He has also relied on Rule 9(8) of the Kerala Panchayat Raj (Election of President and Vice President) Rules, 1995 to fortify his contention laying stress on the words of the above clause, that the election to fill up casual vacancy of the President and Vice President shall be held "as if in the case of first election". The counsel for the writ petitioner has also argued relying on the decision reported in Sukumarakurup v. District Judge (1998 (2) KLT 548) that the dispute as to disqualification is a matter within the exclusive province of the State Election Commission vide Sections 34(2) and 36 of the Act and that the designated Court is precluded from probing into the same issue of disqualification and redecide the same.

(3.) I find that the last mentioned contention of the writ petitioner relying on Sukumarakurup's case (op.cit) appears to be beside the point and rather misplaced as Sections 34 and 36 deal with disqualification of the candidate at the time of election as a member which is not the case herein. So far as Sections 34, 35 and 36 are concerned, disqualifications envisaged and the jurisdiction conferred on the Election Commission, i.e. regarding disqualification of members are with respect to the disqualifications incurred on account of certain acts of commission on the part of the concerned member whereas in the instant case, the disqualification got imposed upon the member, literally as a bolt from the blue, in which he had no role and hence, is distinct in nature and absolutely unforeseen by the law makers and leaves a grey area in the statute. Moreover, Section 153(14) specifically provides that where a dispute arises as to the validity of an election of the President or Vice President of a Panchayat, the decision making power is with the Munsiff having jurisdiction over the area in which the headquarters of the village Panchayat is situated; and as per Section 153(14)(b) a decision of the above Court shall be final. It was on the above finality clause that the District Judge turned down the C.M.A. (C.M.A.No. 27/2004) filed by the writ petitioner challenging the order of the Munsiff. Hence, I find that the above argument based on Sukumarakurup's case (op.cit) is a totally decontextualised contention.