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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.B. Suresh Kumar, J.
Geetha Sukumaran – Petitioner
Versus
The State Election Commission, Kerala State, Thiruvananthapuram And Ors. – Respondents
WP(C).No. 7592, 7602 OF 2021
Decided On : 16-04-2021
Kerala Panchayat Raj Act, 1994 - Section 153 (16) - Kerala Panchayat Raj (Election of President and Vice-President) Rules, 1995 - Election - Election of President and Vice-President of Panchayat - Candidates Nominated by Political Alliances - Petitioners in the writ petitions belong to National Democratic Alliance - After election to Panchayat, election to offices of President and Vice-president of Panchayat was held - Petitioner was nominated as a candidate for election to the office of President by National Democratic Alliance, fifth respondent in the said writ petition was nominated as a candidate for the election to office of the President by the Left Democratic Front, petitioner was nominated as a candidate for election to office of Vice-president by the National Democratic Alliance and fifth respondent in said writ petition was nominated as a candidate for election to office of the Vice-President by the Left Democratic Front - Rules, 1995 framed under Act, 1994 provides for open ballot for election to offices aforesaid - In election members of Panchayat representing United Democratic Front as also the Left Democratic Front voted for the fifth respondent and consequently, he was elected as President of Panchayat, securing 8 votes - Petitioner in the said writ petition could secure only 6 votes of the members belonging to National Democratic Alliance, members of Panchayat representing United Democratic Front as also Left Democratic Front voted in the said election for fifth respondent and consequently, she was elected as Vice-President of Panchayat, securing 8 votes - As in case petitioner in W.P could also secure only 6 votes of the members of National Democratic Alliance –
Finding of the Court : Materials on record would show beyond any shadow of doubt that conduct of contesting respondents in making and subscribing oath without there being any intention to hold offices was to ensure that nobody other than contesting respondents function as President and Vice-president of the Panchayat - It is well settled that a provision in a statute shall not be evaded by shift or contrivance and such conducts are impliedly forbidden and a court of law will not tolerate such an evasion of a statute as it amounts to a positive fraud on statute - It is also well settled that a colourable attempt of a party to evade the provisions of a statute while complying with the letter of the statute would also amount to fraud on statute - It is rather difficult to put into any other form what exactly is meant by an arrangement that is a fraud upon an Act of Parliament of this sort. I perfectly understand the expression, and it may be a very legitimate one to use with regard to the bankruptcy laws which are passed for different purposes, and an attempt to evade which, while complying with the letter of the statute, has been held by the courts, and has repeatedly been decided, to be, not a successful evasion of the statute, but such a colourable attempt to evade the statute as the Court would describe as a fraud upon it.
Result : Writ petitions are allowed
JUDGMENT :
The question falls for consideration in these matters being common, they are disposed of by this common judgment.
2. The petitioner as also the fifth respondent in both the writ petitions are members of Avinissery Grama Panchayat (the Panchayat) elected to the office on 10.12.2020. There are altogether 14 seats in the Panchayat. In the election held on 10.12.2020, 5 seats were won by the political alliance, Left Democratic Front, 6 seats were won by the political alliance, National Democratic Alliance and the remaining 3 seats were won by the political alliance, United Democratic Front. The petitioners in the writ petitions belong to National Democratic Alliance. After the election to the Panchayat, election to the offices of the President and Vice-President of the Panchayat was held on 30.12.2020. The petitioner in W.P.(C)No.7602 of 2021 was nominated as a candidate for the election to the office of the President by the National Democratic Alliance. Likewise, the fifth respondent in the said writ petition was nominated as a candidate for the election to the office of the President by the Left Democratic Front. Similarly, the petitioner in W.P.(C)No.7592 of 2021 was nominated as a candidate for election to the office of the Vice-President by the National Democratic Alliance and the fifth respondent in the said writ petition was nominated as a candidate for election to the office of the Vice-President by the Left Democratic Front. The Kerala Panchayat Raj (Election of President and Vice-President) Rules, 1995 (the Rules) framed under the Kerala Panchayat Raj Act, 1994 (the Act) provides for open ballot for election to the offices aforesaid. In the election held on 30.12.2020, the members of the Panchayat representing the United Democratic Front as also the Left Democratic Front voted for the fifth respondent in W.P.(C) No.7602 of 2021 and consequently, he was elected as the President of the Panchayat, securing 8 votes. The petitioner in the said writ petition could secure only 6 votes of the members belonging to National Democratic Alliance. Similarly, the members of the Panchayat representing the United Democratic Front as also the Left Democratic Front voted in the said election for the fifth respondent in W.P.(C)No.7592 of 2021 and consequently, she was elected as the Vice-President of the Panchayat, securing 8 votes. As in the case of W.P(C) No.7602 of 2021, the petitioner in W.P.(C)No.7592 of 2021 could also secure only 6 votes of the members of National Democratic Alliance. Consequent upon the election, though the elected candidates assumed office as President and Vice-President of the Panchayat by making and subscribing the oath of office, they have resigned from the respective offices immediately thereafter on the same day itself, pretending that they do not want to hold the offices with the support of the members of United Democratic Front. The resignation of the President and the Vice-President of the Panchayat has been reported by the Secretary of the Panchayat to the State Election Commission. The State Election Commission thereupon notified a fresh election to the said offices on 17.02.2021. In the election held on 17.02.2021 also, the very same candidates were nominated by the political alliances to the respective offices and the very same candidates won the election with the support of votes cast by the members of the United Democratic Front. As done on the previous occasion, on this occasion also, the elected candidates assumed office as President and Vice-President by making and subscribing the oath of office and resigned from the respective offices immediately thereafter, on the next day itself, on the very same ground aforesaid. The writ petitions were instituted at that point of time, seeking a declaration that the petitioners are duly elected as the President and Vice-President of the Panchayat in the election held on 17.02.2021. The case set out by the petitioners in the writ petitions is that sin
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