CHEULUMBUKADATHU NAZEERA Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner contested in bye-election to the second respondent-Grama Panchayat, held on 30.5.2006. On 31.05.2006 as per Ext.P1, the petitioner was declared elected. On 01.06.2006, he made Ext.P4 to the Secretary of the Panchayat, as is required by Rule 3(2) of the Kerala Panchayat Raj (Oath of Members, President and Vice President) Rules, 1995, hereinafter called the "Oath Rules", for short. The said Rules are framed invoking the rule making power contained in the Kerala Panchayat Raj Act, 1994 for short, the "Act", hereinafter. On 05.06.2006, the President of the Panchayat issued a communication to the petitioner fixing 15.6.2006 as the date for the petitioner to take oath before the President, in terms of the aforesaid Rule.

(2.) Section 152(5) of the Act provides that when an elected member has not entered upon his office without sufficient cause by taking oath within a maximum period of thirty clays from the date he was declared as elected, the State Election Commission may declare the office of the member as vacated on his own motion. Before the amendment of the said provision as per Act 31 of 2005, the power to so declare, was with the Government. From the facts noticed above, the date fixed by the President, for the petitioner to take oath, is well within the outer time limit of thirty days prescribed in Section 152(5) of the Act. The Legislature has, in its wisdom, taken note of exigencies of circumstances, which may also have to be cared for. This is the reason why, even the outer time limit prescribed as per Sub-section 5 of Section 152 is so fixed by staling that it applies in cases where an elected member does not enter office without sufficient cause. Hence even the time limit fixed as per Section 152(5) cannot, under all circumstances, be treated as an indefeasible cut off date.

(3.) This Writ Petition is filed contending that the request, made in Ext. P4, that the petitioner may be sworn in, is not being acted upon and that there is likelihood of the swearing in of the petitioner being pushed off beyond 13.6.2006 to which date the competent officer under the Act has scheduled the meeting for consideration of a no confidence motion against the President. The petitioner therefore contends that he, whose political allegiance is against the interest of the president, is thus attempted to be excludea from participating in the voting on the no-confidence motion.