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HIGH COURT OF KERALA
MOHAMMED NIAS C.P., J
SULFIKAR – Appellant
Versus
THE KERALA STATE ELECTION COMMISSION – Respondent
WP(C) 18248/2024
Kerala Panchayat Raj Act - Section 35(1)(k) - Disqualification of Elected Member
Fact of the Case:
The petitioner, an elected member of Ward No.XII of the 2nd respondent Grama Panchayat, was disqualified under Section 35(1)(k) of the Kerala Panchayat Raj Act, 1994 for absenting himself from the Panchayat meetings without permission. The petitioner challenged the order passed by the 1st respondent Kerala State Election Commission that dismissed his petition under Section 36(1) of the Act.
Finding of the Court:
The court held that the period when the petitioner was under judicial custody cannot be treated as voluntary absence, and the order of disqualification passed by the Panchayat under Section 35(1)(k) was illegal as the petitioner was not absent for three consecutive months as required by the provision.
Issues: 1. Whether the petitioner incurred a disqualification within the meaning of Section 35(1)(k) of the Kerala Panchayat Raj Act, 1994 for absenting himself from the Panchayat meetings without permission.
Ratio Decidendi: 1. The period when the petitioner was under judicial custody cannot be treated as voluntary absence, and should be excluded from the computation of the three-month period under Section 35(1)(k).2. The petitioner was not absent for three consecutive months as required by Section 35(1)(k), and therefore, the order of disqualification passed by the Panchayat was illegal.
Final Decision: The order of disqualification passed by the Panchayat is quashed, and the petitioner is entitled to continue as a member of the Panchayat.
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 t
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