BALASUBRAMANYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The principal question which arises in both these writ petitions is whether the oath taken by the third respondent in W.P.(C) No. 28913/05 who is none other than the first petitioner in W.P.(C) No. 30262/05 as Deputy Chairperson, before a person other than the Chairperson is valid in law. The Office of the Chairperson of the Municipality is reserved for members of Schedule Caste Community. Hence both the writ petitions are disposed of by a common Judgment.

(2.) A Counter Affidavit has been filed on behalf of the third respondent. It is, inter alia, contended that the Writ Petition is not maintainable on the ground that the petitioner has no locus standi to file this Writ Petition. It is pointed out that the petitioner not being an elected Member of the Council of the Municipality, has no locus standi. It is only a Councillor who can challenge the election of the Deputy Chairperson by filing a petition before the District Court, it is contended. The provision in the Kerala Municipality Act cannot be bypassed, it is averred. It is pointed out that the Councillors are not impleaded and they are necessary parties. More importantly, it is contended that the averment in the writ petition that the election of the Chairperson and Deputy Chairperson was held in the same meeting, is incorrect. Ext.R3(a) notice is produced to substantiate this denial. It is pointed out that two separate agendas were circulated for election to the post of Chairperson and Deputy Chairperson. Ext.R3(b) is a Fax Message from the State Election Commission. The Commission wrote that if the Chairperson is not elected, the authorised Officer (Returning Officer) can administer oath to the Vice Chairman. The question relating to the validity of the votes can never be subject matter of the writ petition. It is pointed out that OP No. 170/05 filed by the Councillors whose votes were declared invalid in the election, is pending consideration before the District Court.

(3.) A Statement has been filed on behalf of the Returning Officer and the State Election Commission. It is firstly contended that the Writ Petition is not maintainable. Reliance is also placed on the decision of the Apex Court in Jaspal Singh Arora v. State of Madhya Pradesh and Ors.((1998) 9 SCC 594) in this regard. It is also pointed out that the writ petition is bad for non-joinder of necessary parties, namely the Councillors of the Municipality. A quo warranto, it is stated, will not lie as the Statute provides for an alternate remedy. No prohibition also would lie against the third respondent as he is not a Court or Tribunal nor is he a quasi-judicial authority. It is pointed out that the meeting for election of the Chairperson was scheduled to be convened on 6.10.2005 at 10 a.m., and that of the Deputy Chairperson was scheduled to be held at 3 p.m. on 6.10.2005. The meeting scheduled to elect the Chairperson was adjourned, as no nominations were forthcoming to the said post. As scheduled earlier, it is stated, the meeting to elect the Deputy Chairperson was conducted. It is contended that under Section 143(2) of the Kerala Municipality Act, the Deputy Chairperson has to make or subscribe the oath before the Chairperson and it is not as if the oath has to be administered to the Deputy Chairperson. Section 143 (2), it is contended, provides only a ministerial act to be done by the Chairperson while oath is made and subscribed to or affirmation is made by the Deputy Chairperson. It is pointed out that Section 143(2) is a provision which is directory in nature, and not mandatory.