PARAMESWARAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE two petitioners were elected in the year 1952, as members of Kadakkal Panchayat represented by its Executive Authority, respondent 2 herein. Six out of the nine members of the Panchayat, including the petitioners had tabled a no-confidence motion against the third respondent, the President of the Panchayat. THEreupon, the third respondent issued two memos, Exts. P. 1 and P. 2 to the petitioners, alleging, that they were disqualified from holding office as members of the Panchayat under S. 16 (1) (h)of the Travancore-Cochin Panchayats Act, 1950, hereinafter referred to as the act, by reason of the default of each of them in the payment of the house tax due from him before the due date. THE petitioners, who did not admit default, moved the Director of Panchayats and the first respondent, the Government of kerala, for action; accordingly, the matter was referred to the first respondent for decision, under S. 17 of the Act. THE first respondent held, by order, Ext. P. 3, dated the 3rd April, 1959 , that the petitioners were disqualified. This petition is therefore filed under Art. 226 to cancel Ext. P. 3. A preliminary objection was taken by the learned Government Pleader on behalf of the first respondent, and by counsel for the third respondent, that Ext. P. 3 being but an administrative order, cannot be quashed on certiorari. I am disposed to think, that this objection is well-founded and must prevail.

(2.) S. 16 (1) (h) and S. 17 of the Act may be reproduced below: 16 (1) Subject to the provisions of S. 17, a member shall cease to hold office if he - [h]. fails to pay arrears of any kind due by him [otherwise than in a fiduciary capacity] to the Panchayat within three months after a bill or notice has been served upon him in pursuance of rules made under this Act, or where in the case of any arrear, such rules do not require the service of any bill or notice, within three months after a notice requiring payment of the arrear [which notice it shall be the duty of the executive authority to serve at the earliest possible date] has been duly served upon him; "17[1]. Whenever it is alleged that any person who has been elected as member of a Panchayat is not qualified under S. 12, or has become disqualified under S. 14,15 or 16 and such person does not admit the allegation, or whenever any member is himself in doubt whether or not he has become disqualified for office under S. 14 or 16 such member or any other member may, and the executive authority shall, on the direction of the Panchayat or of the Director, apply to Government whose decision shall be final. [2] Pending such decision, the member shall be entitled to act as if he were not disqualified. " The qualifications for election prescribed by S. 12 referred to in S. 17, are that the candidate's name must appear on the electoral roll, that he must have completed twentyfive years of age, and that he must be able to read and write Malayalam, Tamil, or English; S. 14 provides, that a government servant shall be disqualified for election, and by 8. 15 a person convicted of certain election offences is disqualified from voting or from being elected at any election or from holding office as a member of Panchayat for a period. S. 16 (1) prescribes in clauses (a) to (g) and (i), other disqualifications being conviction, by a criminal court, supervening unsoundness of mind, insolvency, acquisition of an interest in a contract with the Panchayat, employment as paid legal practitioner on behalf of the panchayat, appointment as an officer or servant under the Act, ceasing to reside in the Panchayat area and absenting from meetings for three consecutive months. By the proviso to S. 14, when any question arises whether any person is disqualified for election, as being an officer or servant of Government, the question shall be referred to Government whose decision shall be final, as under S. 17 (1 ). It has also to be noted, that under S. 17 (1) a reference to government may be made by a member, when he is himself in doubt as to his own disqualification under S. 14 or S. 16. The above, generally, is the scheme of the relevant provisions of the Act, and the question for decision on the preliminary objection is, whether in giving a decision under S. 17, Government acted in a quasi-judicial or administrative capacity.

(3.) THERE is, in the Act, no provision expressly imposing a duty to act judicially; nor can I discern any provision in it, from which this may be necessarily implied. The provisions of S. 54 of the Travancore district Municipalities Act, 1116 may be referred to as an instance of the latter kind. That the "reference" under S. 54 (1) of that Act is not to the Government, but to a District Judge, who functions almost invariably as a judicial officer, and when he does not function as such, has still all the "trappings of a court" about him, such as, the power to compel the attendance of witnesses, to impose sanctions, to enforce obedience to its commands, to award costs, is in itself an indication, of the judicial or quasi-judicial nature of his power. S. 54 (2) of that Act has further provided that: "the said judge, after making inquiry as he deems necessary, shall determine and his decision shall be final. " This puts the matter beyond doubt; for reasons best known to it, the legislature has not thought it necessary to prescribe a remedy of this kind, in the case of Panchayat members, in which, perhaps, as suggested by the learned Government Pleader, the need was felt to be greater, for speed and expedition in the settlement of such questions.