Kerala High Court

Adv. C.K.Ummu Salma vs State Election Commission, ... on 14 June, 2022

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
     TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                        WP(C) NO. 19105 OF 2022
PETITIONER

             ADV. C.K.UMMU SALMA
             AGED 45 YEARS
             D/O. HAMSA HAJI, CHAKKALAKKUNNAN HOUSE, KODAKKAD P.O,
             MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.
             BY ADVS.
             B.PREMNATH (E)
             MANI GOVINDA MARAR
             SARATH M.S.
             NARMADA N.


RESPONDENTS:

    1        STATE ELECTION COMMISSION, KERALA
             VIKAS BHAVAN, ''JANAHITHAM", NEAR LEGISLATIVE ASSEMBLY,
             THIRUVANANTHAPURAM, PIN 695 033,
             REPRESENTED BY THE STATE ELECTION COMMISSIONER.
    2        THE SECRETARY,
             DISTRICT PANCHAYAT, PALAKKAD , PIN 678 001, (EMPOWERED
             OFFICER UNDER SECTION 157 OF THE KERALA PANCHAYAT RAJ
             ACT, 1994)
    3        THE MANNARKKAD BLOCK PANCHAYAT,
             NH 966, MANNARKKAD, PALAKKAD DISTRICT, PIN 678 582,
             REPRESENTED BY ITS SECRETARY.
    4        THE SECRETARY,
             THE MANNARKKAD BLOCK PANCHAYAT, NH 966, MANNARKKAD,
             PALAKKAD DISTRICT, PIN 678 582.
    5        MUSTHAFA VARODAN,
             S/O. LATE ASSAINAR, AGED 48, VARODAN HOUSE,
             PAYYAMADAM P.O, MANNARKKAD, PALAKKAD DISTRICT,
             PIN 678 583.
    6        BASHEER THEKKAN,
             S/O. MOHAMMED HAJI, AGED 49, KATTUKULAM, ALANALLUR P.O,
             PALAKKAD DISTRICT, PIN 678 601.
    7        MOHAMMED CHERUTHY,
             AGED 50 YEARS
             S/O. LATE HAMZA, MANJALINGAL HOUSE, THRIKKALLOOR P.O,
             MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.
    8        SHANAVAS P, AGED 45 YEARS
             S/O. MOHAMMED, PADUVANPADAN HOUSE, EDATHANATTUKARA P.O,
             MANNARKKAD, PALAKKAD , PIN 678 583.
 WP(C) NO.19105 OF 2022
                                       2



    9       BUSHRA K.P,
            W/O. KUNHI MOHAMMED, AGED 48,
            THACHANATTUKARA P.O, MANNARKKAD,
            PALAKKAD DISTRICT, PIN 678 583.
    10      THANKAM MANGADIKKAL,
            W/O. KRISHNANKUTTY, AGED 52, KUNDURKUNNU P.O,
            MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.
    11      MANIKANDAN V, AGED 48 YEARS
            S/O. KOPPAN, VADASSERY HOUSE, THIRUVAZHAMKUNNU
            P.O, MANNARKKAD, PALAKKAD , PIN 678 583.
    12      KUNHIMUHAMMED P,
            AGED 45 YEARS
            S/O. ABOOBACKER, PADUVIL HOUSE, AYIROOR P.O,
            KOTTOPPADAM, MANNARKKAD, PALAKKAD DISTRICT,
            PIN 678 583.
    13      BIJI TOMY, AGED 39 YEARS
            W/O. TOMY SEBASTIAN , PERUMPUZHAYIL HOUSE,
            IRUMBAKACHOLA P.O, KANJIRAPUZHA,
            PALAKKAD DISTRICT, PIN 678 591.
    14      PREETHA V,
            W/O. SETHU MADHAVAN C.M, KOOOTPPADAM P.O,
            MANNARKKAD, PALAKKAD DISTRICT, PIN 678 583.
    15      KURIAN P.V, AGED 55 YEARS
            PARAKKUDIYIL HOUSE, PALAKKAYAM P.O, MANNARKKAD,
            PALAKKAD DISTRICT, PIN 678 583.
    16      DISTRICT POLICE CHIEF,
            YAKKARA ROAD, NEAR KSRTC BUS STAND, PALAKKAD ,
            PIN 678 014.
    17      STATION HOUSE OFFICER,
            MANNARKKAD POLICE STATION, NH 213, KOZHIKODE-
            PALAKKAD HWY, MANNARKKAD, PIN 678 582.

            SRI. DEEPU LAL MOHAN- R1
            SMT. SURYA BINOY- SR. GP
            SRI. BABU S. NAIR R5 TO R15


     THIS    WRIT   PETITION    (CIVIL)    HAVING   COME    UP    FOR
ADMISSION    ON   14.06.2022,   THE   COURT   ON    THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO.19105 OF 2022
                                        3




                            JUDGMENT

Dated this the 14th day of June, 2022

The petitioner, who is an elected member of Block

Panchayat, Mannarkkad, is before this Court seeking to

declare that Exts.P14 and P15 are invalid and illegal and to

direct the 1st respondent to consider and pass orders on

Ext.P16 petition in accordance with law and till then the

proceedings pursuant to Exts.P14 and P15 may be kept in

abeyance.

2. The petitioner states that she was elected as

member of the Block Panchayat and was thereafter elected as

President of the Block Panchayat in Mannarkkad.

Respondents 5 to 15 issued notice for moving No Confidence

Motion against the petitioner on 05.11.2021. On 20.11.2021,

the 2nd respondent intimated to the 1 st respondent that the

meeting of No Confidence Motion could not take place due to

want of quorum.

WP(C) NO.19105 OF 2022

3. On 23.05.2022, respondents 5 to 15 gave a notice

of intention to move No Confidence Motion against the

petitioner. The petitioner would submit that the notice is not in

the prescribed format as provided under Section 157(3) of the

Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the

Act, 1994') and Rule 15 of the Kerala Panchayat Raj

(Procedure for Meetings) Rules, 1995 (hereinafter referred to

as 'the Rules, 1995'). The said notice was declared invalid and

illegal in the judgment of this Court in W.P.(C) No.17605 of

2022.

4. The petitioner states that respondents 5 to 15 again

gave a third notice to move No Confidence Motion against the

petitioner as per Ext.P14. The petitioner submits that Ext.P14

is not in the proper form and it cannot be treated as a valid

notice. The learned counsel for the petitioner urged that

Ext.P14 notice is not in accordance with the format prescribed WP(C) NO.19105 OF 2022

as per Section 157(3) of the Act, 1994 and Rule 15(2) of the

Rules, 1995 and it is therefore illegal and unsustainable.

5. One of the members, who is signatory to Ext.P14,

has signed a receipt at the bottom of Ext.P14 notice. The

provisions of Section 157 do not permit to endorse the date

and time by the member presenting the motion. There cannot

be an endorsement like "received", "receipt" in Ext.P14. The

learned counsel submits that the provisions of Section 157 of

the Act, 1994 have to be construed strictly and there cannot

be any relaxation or addition or words, signature, etc., in the

prescribed format of the notice. Ext.P14 is therefore

unsustainable and cannot be acted upon.

6. The learned counsel relied on the judgment of this

Court in Anitha v. Kanjirappilly Block Panchayat [ 2004 (3)

KLT 211], wherein this Court held that Section 157 of the Act,

1994, with its heading 'Motion of No Confidence' is a

comprehensive code of procedure. A motion expressing want WP(C) NO.19105 OF 2022

of confidence is to be moved in accordance with the procedure

laid down there alone. The mandatory requirements under

Section 157(2) are a written notice signed by required number

of members and a copy of the motion to be moved. It has to

be delivered by any of the signatories, to the authorised

officer, and in person. No relaxation of any of the procedure is

permissible, as everyone of them are mandatory

requirements.

7. Relying on the judgment of the Apex Court in

Sreeram Redddy and another v. Returning Officer and

others [(2009) 8 SCC 736], the learned counsel for the

petitioner urged that while interpreting a special statute, which

is a self contained code, the Court must consider the intention

of the legislature.

8. The learned counsel for the petitioner further urged

that once the intended notice of No Confidence Motion is

presented, it has to be in the custody of the 2 nd respondent WP(C) NO.19105 OF 2022

and no other person is entitled to make any endorsement in

the said notice. It is to maintain the sanctity of the motion of no

confidence. The endorsement of the 8th respondent would also

mean that there could be manipulation after the submission of

Ext.P14 notice to the 2nd respondent. Ext.P14 notice is

therefore liable to be declared as invalid and illegal.

9. The Standing Counsel entered appearance for the

1st respondent and defended the writ petition. The Standing

Counsel pointed out that as per the requirement prescribed in

Section 157(2):-

"(i) There shall be a "Notice" of intention of move a motion of No-Confidence' in the President or Vice President.

(ii) The Notice of intention to move the motion shall be in writing.

(iii) The Notice of intention to move the motion shall be in the prescribed form.

(iv) The notice of intention to move the motion shall be signed by at least one-third of the sanctioned strength of that Panchayat.

(v) Only elected members can be signatories to the Notice of intention to move the motion.

(vi) The Notice of intention to move the motion shall be accompanied by a copy of the proposed motion.

(vii) Any of the signatories to the Notice of intention to move the motion shall deliver the notice of intention to move the motion in person to the officer authorised by the State Election WP(C) NO.19105 OF 2022

Commission.

(viii) The notice of intention to move the motion shall be delivered to the officer authorised by the State Election Commission alone."

10. All afore requirements are complete in Ext.P14. In

the instant case, the member who delivered Ext.P14 notice

wanted the Authorised Officer a receipt in respect of Ext.P14.

The Authoirsed Officer issued a separate receipt to the

member. The member acknowledged the receival of the

receipt in Ext.P14. That by itself will not invalidate Ext.P14.

11. The counsel representing respondents 5 to 15 also

opposed the writ petition. The counsel for respondents 5 to 15

submitted that the attempt of the petitioner is to circumvent the

democratic process. The petitioner has lost the confidence of

the Panchayat. The writ petition is without any bonafide and it

is liable to be dismissed.

12. Heard the learned counsel for the petitioner, the

learned Standing Counsel representing the 1 st respondent, the

learned Government Pleader representing respondents 2, 16 WP(C) NO.19105 OF 2022

and 17 and the learned counsel representing respondents

5 to 15.

13. Ext.P14 form submitted by the members of the

Block Panchayat would show that it has been signed by

eleven members. The notice of intention to move the motion is

in writing. It is also in the prescribed form. The notice has been

signed by more than 1/3rd of the sanctioned strength of the

Panchayat. It is not disputed that the notice of intention was

accompanied by a copy of the proposed motion. The notice of

intention was delivered to the officer authorised by the State

Election Commission. Therefore, it is evident that all the

procedural requirements are complied with.

14. The argument of the petitioner is that one of the

members, who is a signatory to Ext.P14, has endorsed receipt

at the bottom portion of Ext.P14 form. This Court is of the

considered opinion that when Ext.P14 notice is otherwise

complete in all respects, an endorsement of receipt by one of WP(C) NO.19105 OF 2022

the members, who delivered Ext.P14 to the Authorised Officer,

cannot invalidate the notice.

15. This Court considered an identical issue in the

judgment in Sherly George and another v. State of Kerala

and others [2019 (3) KHC 743]. This Court held that the

question is whether minor defects in the form and content of

the notice would render the entire exercise of consideration of

the No Confidence Motion otiose, if the requirements of the

Sections are otherwise substantially complied with. This Court

held that the answer would depend on the facts as to whether

the notice of intention was correctly understood and acted

upon by the officer authorised by the Election Commission.

16. This Court also finds that the object of giving written

notice of the intention to move a No Confidence Motion is to

enable the Authorised Officer to ascertain as to whether the

motion has been signed by atleast 1/3rd of the sanctioned

strength of the Panchayat.

WP(C) NO.19105 OF 2022

17. In the case of the petitioner, Ext.P14 is in proper

form. Ext.P14 is in writing and it is in the prescribed form.

Ext.P14 notice of intention to move the motion is signed by

more than 1/3rd of the sanctioned strength of the Panchayat.

The notice, admittedly, has been delivered in person to the

officer authoirsed by the State Election Commission. Since all

the procedural requirements mandated by Rule 157 are

complied with, an endorsement of the receipt in Ext.P14 by

one of the members, who submitted the notice, by itself will

not invalidate Ext.P14.

For the afore reasons, this Court finds no merit in the writ

petition. The writ petition is therefore dismissed.

sd/-

N.NAGARESH JUDGE hmh WP(C) NO.19105 OF 2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE NOTICE FOR MOVING THE NO CONFIDENCE MOTION BY RESPONDENTS 5 TO 15 BEFORE THE 2ND RESPONDENT, ALONG WITH THE RESOLUTION, DATED 05.11.2021. Exhibit P2 TRUE COPY OF THE INTIMATION BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT REGARDING THE LACK OF QUORUM AND THE DISBURSAL OF MEETING , DATED 20.11.2021.

Exhibit P3 TRUE COPY OF THE NOTARY ATTESTED AFFIDAVIT AND THE NOTICE SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT, DATED 11.12.2021.

Exhibit P4 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, DATED 24.12.2021.

Exhibit P5 TRUE COPY OF THE ORDER NO. B2/45/2021-

SEC OF THE 1ST RESPONDENT, DATED 10.01.2022.

Exhibit P6 TRUE COPY OF THE INTERIM ORDER OF THIS HON'BLE COURT IN W.P.C NO. 3056 OF 2022 DATED 10.03.2022.

Exhibit P7 TRUE COPY OF THE DOCUMENT EXAMINATION REPORT/OPINION OF THE ASSISTANT DIRECTOR (DOCUMENTS) OF THE REGIONAL FORENSIC SCIENCE LABORATORY, DATED 01.04.2022.

Exhibit P8 TRUE COPY OF THE COMPLAINT OF THE PETITIONER BEFORE THE CIRCLE INSPECTOR, MANNARKKAD, DATED 31.12.2021.

Exhibit P9 TRUE COPY OF THE F.I.R IN CRIME NO.

38/2022 OF THE MANNARKKAD POLICE STATION, DATED 12.01.2022.

Exhibit P10 TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, WP(C) NO.19105 OF 2022

THIRUVANANTHAPURAM, PIN 695 010, DATED 30.04.2022.

Exhibit P11 TRUE COPY OF THE NOTICE OF NO CONFIDENCE MOTION SUBMITTED BY RESPONDENTS 5 TO 15 ALONG WITH THE RESOLUTION ATTACHED, DATED 23.05.2022. Exhibit P12 TRUE COPY OF THE NOTICE NO. E1-1293 OF 2022 ISSUED BY THE 2ND RESPONDENT, DATED 25.05.2022.

Exhibit P13 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.C NO. 17605 OF 2022, DATED 02.06.2022.

Exhibit P14 TRUE COPY OF THE NOTICE AND THE RESOLUTION FOR NO CONFIDENCE MOTION SUBMITTED BY RESPONDENTS 5 TO 15 TO THE 2ND RESPONDENT, DATED 03.06.2022.

Exhibit P15 TRUE COPY OF THE NOTICE NO. E1-

1409/2022 OF THE 2ND RESPONDENT TO THE PETITIONER, DATED 04.06.2022.

Exhibit P16 TRUE COPY OF THE PETITION SENT TO THE 1ST RESPONDENT AGAINST THE 2ND RESPONDENT AND THE COVERING LETTER SENT THROUGH THE E-MAIL ID OF THE PETITIONER, DATED 10.06.2022.