1. An employee of a co-operative society registered under the provisions of the Kerala Co-operative Societies Act, 1969 is elected as a member of the Panchayat. There is no election petition. Retaining employment he continues to hold office as a member of the Panchayat. Can the State Election Commission determine the disqualification under S.36 of the Kerala Panchayat Raj Act?

2. Petitioners in these Original Petitions are employees of co-operative societies registered under the provisions of the Kerala Co-operative Societies Act, 1969. Retaining their employment in the respective societies they contested for election to the Grama Panchayats and they were elected. No election petition was filed on any of the grounds available under S.102 or 103 of the Kerala Panchayat Raj Act, as provided under Ss.87 to 89 of the Kerala Panchayat Raj Act, 1994. Instead, the contesting respondents moved the State Election Commission under S.36 of the Kerala Panchayat Raj Act. The Commission entertained the petitions and in one case the issue was adjudicated. The Commission took the view that the member who is an employee of a co-operative society at the time of election is disqualified for holding the office of member of the Grama Panchayat and in the rest of the cases, the Commission is yet to pass orders. This, in nut shell, is the factual background of the cases.

3. Though the petitioners have taken various grounds and have made consequential prayers including the challenge on the validity of the statutory provision. Sri. K. Ramakumar, learned counsel leading the arguments submits that the essential question as to the jurisdiction of the State Election Commission is the issue to be first decided and the rest of the challenges need be gone into only if the Commission is found to have exercised jurisdiction not vested in it.

4. As already observed above there is no dispute as to the facts, namely all the petitioners were employees of the co-operative societies registered under the provisions of the Kerala Co-operative Societies Act, 1969 at the time they contested for election to the Grama. Panchayat and they continue in employment.

5. Art.243-0 of the Constitution of India providing for challenge on election matters reads as follows:

"243-0. Bar to interference by courts in electoral matters - Notwithstanding anything in this Constitution,

(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Art.243-K, shall not be called in question in any court:

(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State".

So, in view of clause (b) of Art.243-0 an election to the Panchayat can be questioned only by an election petition as provided under the Kerala Panchayat Raj Act, 1994, being the law dealing with the subject.

6. Chapter VII of the Kerala Panchayat Raj Act comprising of S.29 to 38 deals with qualifications and disqualifications of candidates and members. S.30 provides as follows:

"30. Disqualification of officers and employees of Government, Local authorities, etc.- (1) No officer or employee in a service of the State or Central Government or of a local authority or a corporation controlled by the State or Central Government or of a local authority or any company in which the State or Central Government or a local authority (not less than fifty one percent share) or of a statutory Board or of any University in the State shall be qualified for election or for holding office as a member of a Panchayat at any level.

Explanation.- For the purpose of this section, company means a Government company as defined in S.617 of the Companies Act, 1956 (Central Act 1 of 1956) and includes a Co-operative Society registered or deemed to be registered under the Kerala Co-operative Societies Act,