PUSHPAM SIMON Vs. KARUMKULAM GRAMA PANCHAYAT

JUDGEMENT

(1.) The petitioner, an elected member of a Grama Panchayat and a member of the standing Committee for welfare in that Panchayat was served with a notice under Section 37(2) of the Kerala Panchayat Raj Act, 1994, hereinafter referred to as the 'PR Act', by the Secretary of the Panchayat, intimating him that he has ceased to be a member of the Panchayat under Clause (k) of Section 35 of that Act. He had two options. One was to concede to the fact stated in the notice and seek restoration of membership by applying to the Panchayat in terms of Section 37(2) of the PR. Act and take the verdict of the Panchayat in that regard. Alternatively, he could seek determination of the question as to whether he has become disqualified by making a petition for determination of that question in terms of Section 36(1) of the P.R. Act before the State Election Commission. Had he chosen the former, he would stand estopped from availing the latter. See Rajan v. Kerala State Election Commission, 1999 3 KerLT 601. The petitioner chose the latter and moved the Election Commission. The Panchayat filed objections, also pleading that the petitioner is a Non-Resident Indian and staying at Dubai with his family and he used to visit Kerala only once in three or four months. The Panchayat pleaded that the petitioner failed to attend 8 consecutive meetings held between 17.2.2007 and 25.9.2007 and he also failed to attend another 9 consecutive meetings held between 23.11.2007 and 30.7.2008. As per the impugned Ext.P5 order, the Election Commission held that there was no reliable material to hold that the petitioner had incurred the disqualification in terms of Section 35(k) of the P.R. Act. In particular, it was held that there was no sustainable material to hold that due notices of the meetings were served on the petitioner, as enjoined by law, to result in the cause of action that would lead to the automatic disqualification of the petitioner by the occurrence of the event provided for in Section 35(k). After holding so, the Election Commission went further to hold that an examination of the attendance register of the Panchayat during the relevant period would reveal that the Panchayat's contention that the petitioner used to attend meetings of the Panchayat only once in three months, just to avoid disqualification is true. Adverting to Ext.P6 copy of the Passport of the petitioner, the Election Commission noted that Visa endorsements by the authorities of UAE showed that the petitioner had a resident visa or permit and that resident permit becomes invalid if bearer resides out of UAE for more than six months. On the basis of that endorsement, the Election Commission concluded that the petitioner is an ordinary resident of UAE and is therefore, not an ordinary resident in the territory of the Grama Panchayat. The Election Commission, therefore, went on to say that the petitioner is not even entitled to be a voter in the Panchayat. Cautioning itself that it had not been called upon to pass order on that issue, the Election Commission deferred from stating further on the resident status, but ultimately held that the petitioner is disqualified in terms of Section 35 (k) of the P.R. Act. To conclude so, the Election Commission held that the petitioner had not taken permission from anybody to go abroad and from the circumstances, it can be presumed that notices meant for some of the meetings were served on the persons seen at his residence, including his wife. It was also presumed that the endorsement to the effect that the notice was not served on the petitioner as he was not in place must have been made by G. Anilkumar, Chairman of the standing Committee, who was examined as PW.4 before the Election Commission. The Election Commission took the view that the Panchayat could have taken steps to affix the notice. But such lapse was held to be one that could not be considered as a serious one in view of the fact that the petitioner, according to the Election Commission, is not even an ordinary resident of the Panchayat as revealed by the endorsements in his passport and his oral evidence. The assimilation of the evidences and the conclusions arrived at by the Election Commission in para.3 of the impugned Ext.P5 tend to show that there is no categoric finding that the petitioner had absented himself, without the permission of the Panchayat, from the meeting of its standing Committee for a period of three consecutive months and that there was due notice of the meetings which were reckoned to result in the disqualification as alleged.

(2.) Attacking the findings of the Election Commission, learned senior Counsel for the petitioner argued that there was no petition before the Election Commission raising the question as to whether the petitioner had become disqualified on any of the grounds other than under Section 35(k) and the finding of the Election Commission that the petitioner is not an ordinarily resident within the limits of the Panchayat and that he is ordinarily resident in the UAE are, firstly, without jurisdiction and secondly, without any legal or factual basis. It is further argued that the petitioner was not put to notice of any plea that he has lost his right to be a voter in the Panchayat. The entitlement to vote or otherwise is an issue to be decided by the electoral officer and not by the Election Commission at the first instance, it is argued. It is also pointed out that the physical absence of the petitioner from the limits of the Panchayat on account of his avocation or business cannot be treated as a cause to hold that he has absented himself from the meetings, to incur the disqualification in terms of Section 35(k), unless cogent material is shown in support of the service of notice as provided for in Clause (i) among the provisos to Section 35(k). The appreciation of evidence by the Election Commission by drawing inferences on the basis of the alleged non-residence of the petitioner in India is criticised as contrary to law and based merely on surmises and conjectures. Learned Counsel for the petitioner made reference to the judgment of the Apex Court in Kuldip Nayar v. Union of India, 2006 7 SCC 1, wherein, it is held that residence within a State is not a necessary qualification for a candidate for election to the Rajya Sabha.

(3.) Per contra, learned Counsel appearing for the Panchayat argued that when an application is filed before the Election Commission under Section 36(1) of the P.R. Act seeking a decision on the question as to whether a member has become disqualified, the disposal of the petition has to result in the answer as to whether the member is disqualified or not. Accordingly, it is argued that when the petitioner, the member himself, sought an adjudication of the question as to whether he is disqualified, the Election Commission would be within jurisdiction to look into all counts of disqualification under Section 35, except Clause (n), to decide whether the petitioner had incurred any disqualification and that the Election Commission cannot be tied down to decide on the question of disqualification only in terms of Clause (k) of Section 35. This argument is further buttressed by referring to Sub-section (3) of Section 36, which provides that a petition under Section 36(1) shall be disposed of in accordance with the procedure applicable under the Code of Civil Procedure when trying a suit. It is thus pointed out that the institution of the petition, when contested, gets the characteristics of a Us and in the case in hand, the Panchayat had charged the petitioner of being a Non-Resident Indian and therefore, the petitioner had been put to notice of the plea of the Panchayat that he was not ordinarily residing in the Panchayat. Accordingly, learned Counsel argued that though the Election Commission did not, in terms, state that the petitioner had become disqualified on any ground other than Section 35(k), he has, in fact, incurred disqualification under Section 35(h), which provides that a member would cease to hold office if he ceases to reside within the area of the Panchayat concerned. Though much could not be pointed out on the basis of the evidence relating to the delivery of the notices for the meetings, the inferences drawn by the Election Commission cannot be stated to be unfounded, it is contended.