Radhakrishnan, Ag. C.J.

Question that is posed for consideration in this case is whether a voter can invoke section 36 (1) of the Kerala Panchayat Raj Act calling upon the State Election Commission to decide as to whether a member has become disqualified under section 35(k), especially when that member has already become disqualified and that order has attained finality so far as that member is concerned.

2. Ussain, the third respondent, was elected as member of Ward No.6 of Kunnamangalam Grama Panchayat, but on account of his consecutive absence for four times in the Welfare Standing Committee Meeting of the Panchayat he entailed a disqualification under section 35(k) of the Act. Secretary of the Panchayat issued Ext. P1 notice dt.2-6-2006 under Section 37(2) of the Act informing him of his disqualification under section 35(k) of the Act. Ussain then filed a petition before the Panchayat under section 37(2) of the Act seeking restoration of his membership. Committee of the Panchayat dismissed the same vide Ext.P3 decision. Ussain then filed a petition under section 36(1) of the Act before the Election Commission which was numbered as OP.No.23 of 2006, which was later dismissed as not pressed. Therefore so far as Ussain is concerned, the order of disqualification under section 35(k) has become final. Question that has come up for consideration in this case is whether a voter can still challenge the order of disqualification by invoking section 36 (1) of the Kerala Panchayat Raj Act calling upon the State Election Commission to decide as to whether third respondent Ussain has become disqualified under section 35(k) of the Act, especially, when order of disqualification as far as third respondent is concerned, has attained finality. Learned single Judge answered the question in the affirmative placing reliance on a bench decision of this court in Rajan v. Kerala State Election Commission, (1999 (3) KLT 601) and took the view that section 36 of the Act has conferred the right on any other member of the Panchayat and on a voter of the Panchayat to move the Election Commission, since the loss of membership of even a member would lead to altering the majorities in the Panchayat and it is a matter of serious consequence not only to the member concerned but also to the entire Panchayat. Learned single Judge therefore held that the election petition filed by 4th respondent voter before the Election Commission is maintainable. Aggrieved by the same this appeal has been filed.

3. Sri. K. Ramakumar, counsel appearing for the appellants submitted that the learned single Judge has committed an error in holding that the petition filed by 4th respondent before the Election Commission is maintainable under section 36(1) of the Panchayat Raj Act. Counsel submitted that third respondent has already entailed disqualification and the order of disqualification has become final. Counsel submitted that the petition preferred by the 3rd respondent for restoration of his membership under section 37(2) of the Act was dismissed by the Panchayat Committee and also the application preferred by him under section 36(1) of the Act before the Election Commission was also dismissed as not pressed. Counsel therefore submitted that since the order of disqualification has attained finality, a voter cannot invoke subsection (1) of section 36 of the Panchayat Raj Act for a declaration that third respondent has not entailed disqualification. Sri. V.G. Arun, counsel appearing for 4th respondent tried to sustain the order of the learned single Judge and reiterated his contentions.

4. We are afraid that the learned single Judge has not properly appreciated the scope of section 36 of the Kerala Panchayat Raj Act. We may extract the said provision for easy reference:

“ 36. Determination of subsequent disqualification of a member:- (1) Whenever a question arises as to whether a member has become disqualified under Section 30 or Section 35 except clause (n) thereof a