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IN THE HIGH COURT OF KERALA AT ERNAKULAM
MOHAMMED NIAS C.P., J.
Sulfikar, S/o.Subair – Appellant
Versus
The Kerala State Election Commission – Respondent
WP(C) No. 18248 of 2024
Decided on : 03-07-2024
Kerala Panchayat Raj Act - Disqualification - Section 35(1)(k) - Summary of Acts and Sections: The court discussed the provisions of Section 35(1)(k) of the Kerala Panchayat Raj Act, 1994, which deals with disqualification for absence from meetings without permission. The court also considered the provisions of Section 37(1) for restoration of membership. The court's decision was influenced by the interpretation of these sections and their application to the facts of the case.
Fact of the Case:
The petitioner, an elected member of a Grama Panchayat, challenged his disqualification and refusal to restore his membership under the Kerala Panchayat Raj Act, 1994. The petitioner had submitted a leave application, but it was rejected, and he was subsequently arrested, leading to his absence from meetings. The petitioner argued that his absence was not willful and that his application for restoration of membership should have been allowed.
Finding of the Court:
The court analyzed the provisions of Section 35(1)(k) and considered the petitioner's arguments regarding his absence and the rejection of his leave application. The court found that the disqualification of the petitioner was illegal and that the orders passed under Section 37 or the maintainability of the petition before the State Election Commission were not relevant, as the primary order of disqualification was itself held to be illegal.
Issues: The issues revolved around the legality of the petitioner's disqualification under Section 35(1)(k) of the Kerala Panchayat Raj Act, 1994, and the refusal to restore his membership under Section 37(1). The court also addressed the petitioner's arguments regarding the non-serving of the resolution of the Panchayat and the consequential action under Section 35.
Ratio Decidendi: The court held that the petitioner's absence during his judicial custody should be excluded from computing the number of meetings he absented. The court also applied the Doctrine of Impossibility, stating that the period of the petitioner's involuntary absence should be excluded. The court emphasized that the disqualification under Section 35(1)(k) was illegal and that the petitioner was entitled to continue as a member of the Panchayat.
Final Decision: The court allowed the Writ Petition, quashed the disqualification of the petitioner, and declared that the petitioner was entitled to continue as a member of the Panchayat.
JUDGMENT :
The petitioner challenges the order passed by the 1st respondent Kerala State Election Commission that dismissed O.P.No.15/2022 filed by him under Section 36(1) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as ‘the Act’) challenging his disqualification imposed under Section 35(1) and also against the refusal to restore his membership under Section 37(1) of the Act.
2. The petitioner is an elected member of Ward No.XII of the 2nd respondent Grama Panchayat. He could not attend the meetings of the Panchayat from 01.01.2022. He states that he had filed a leave application, as per a letter dated 04.02.2022, requesting three months’ leave from that date on medical grounds. Ext.P1 is the letter sent through registered post with acknowledgment due. The petitioner submits that though the Panchayat had received the same on 7.12.2022, no reply was given to him. He was involved in Crime No.897/2021 of Alappuzha South police station and Crime Nos.1379/2021 and 20/2022 of Punnapra police station and was arrested on 02.03.2022. While undergoing judicial custody, he moved CMP No.862/2022 before the Judicial First Class Magistrate’s Court-I, Alappuzha for allowing parole to him to attend the meeting scheduled on 07.04.2022, which was however, rejected by Ext.P3 order. In the meantime, Ext.P1 leave application was considered by the Panchayat committee, after it was adjourned twice in the meeting held on 07.03.2022, and decided to reject the said application. The petitioner submits that though his leave application was rejected, no communication was issued to him and he came to know about the same only when he received a notice under Section 37(2) of the Act informing him that he has been disqualified as a member of the Panchayat and asking him to file objections, if any.
3. The petitioner had also submitted a request to the 3rd respondent to invoke Section 37(2) of the Act for restoring his membership which was cancelled as per Section 35(1)(k) of the Act. The said application is marked as Ext.P6. As per the resolution dated 30.05.2022, the 2nd respondent decided not to restore the membership of the Panchayat and the said fact was intimated to the petitioner by way of a letter, without serving the copy of the resolution dated 07.06.2022, marked as Ext.P9. The petitioner submits that he was granted bail and released on 10.6.2022 and after obtaining bail, filed an application on 13.6.2022 to get a copy of the resolution dated 30.05.2022 rejecting his application for restoration of membership. Ext P10 is a copy of the resolution. The petitioner had filed O.P.No.15/2022 before the 1st respondent challenging Exts.P4, P8 and P10. When no orders were passed on the interim application for stay, the petitioner filed W.P(C) No.30435/2022 before this Court which directed the interim application to be considered on 11.10.2022, pursuant to the same, the 1st respondent passed orders dated 11.10.2022 in I.A.No. 55/2022. in O.P. No.15/2022 allowing the petitioner to continue as a member of the 1st respondent Panchayat till a decision is taken by it. Later, the matter was heard and by Ext.P14 order dated 16.04.2024, the 1st respondent rejected the original petition, which is impugned in this writ petition.
4. The learned counsel for the petitioner submits that the order disqualifying him is illegal as he had performed his part by submitting a leave application and the consideration of the same was adjourned twice before it was rejected and thus it cannot be said that his non-participation in between was willful. It is also submitted that while he was in judicial custody, he could not attend the meeting as it was beyond his control. The learned counsel further submits that it was only due to political intentions that the leave application was rejected. It is also his argument that the disqualification arises only when absence is without the permission of the Panchayat concerned for its meeting for three consecutive months, and the perio
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