SULPHIKAR Vs. RAFEEQ

JUDGEMENT

(1.) The appellant, who is the writ petitioner, is aggrieved by the judgment dated 16.11.2018 whereby W.P.(C)No.21926/2018 was dismissed by the learned single Judge. The challenge in the writ petition was to the order dated 29.6.2018 (Ext.P7) of the Kerala State Election Commission in the O.P.No.51 of 2017, whereby the petitioner was rendered disqualified to continue as a Councillor of the Kayamkulam Municipality. The impugned declaration was made under Section 86 of the Kerala Municipality Act, 1994 , hereinafter referred to as "the Act" on the basis of the complaint filed by a voter in Ward No.08 of Kayamkulam Municipality, wherefrom the petitioner was elected on 5.11.2015.

(2.) During his tenure as Councillor, the petitioner was appointed as Director Cum Chairman of the Board of Directors of the Kerala Agro Industries Corporation, Thiruvananthapuram, by Government Order dated 21.12.2016 (Ext.P1). This is a Government company within the meaning of Section 617 of the Companies Act, 1956. The Government Order dated 9.9.2013 (Ext.P2) specifies the duties and functions of the Chairman of the Public Sector undertaking and also about their entitlement to honorarium, sitting fees, use of vehicles and such other perks. As can be seen, the petitioner as the Chairman is entitled to an honorarium of Rs.20,000/- per month and sitting fee of Rs.500/- for attending the Board meetings. He is also provided with a chauffeur driven car and other perks of the office.

(3.) While so situated, the 1st respondent Rafeeq filed the complaint (Ext.P3) before the State Election Commission (respondent No.3) that the petitioner in the position of Chairman, accepts honorarium and therefore he is disqualified under Section 86 of the Kerala Municipality Act. In his response (Ext.P4), the petitioner however had contended that as a Councillor, he is getting honorarium but he is not an officer or employee of the Corporation and therefore his acceptance of honorarium will not disqualify him, under Section 86 of the Municipality Act.