Decided on December 11,2003

MADHU Appellant


- (1.) W.P.(C) No. 35632/03 The petitioners in this Writ Petition are the Councillors of the 3rd respondent Municipality. Feeling aggrieved by the steps taken by the 1st respondent State Election Commission to disqualify them, this Writ Petition is filed. The brief facts of the case are the following:-
(2.) The 1st respondent issued Ext. P1 circular to all the Muncipalities calling for the following details:- (1) Whether the Ward Committees/Ward Sabhas have been formed as provided under S.42/42A of the Kerala Municipality Act, 1994. (2) The details of the meetings of the Ward Committees/Ward Sabhas, including the date of the last meeting. (3) Was there any default in convening the Ward Committees/Ward Sabhas consecutively for a period of six months. (4) Was any Councillor disqualified under S.92(o). The said circular was followed by Ext. P1(a) communication, in which the 4th direction in Ext. P1 was modified as referring to the disqualification under S.91(o) instead of S.92(o). It was also requested in Ext. P1(a) to forward the details called for, without delay. By Ext. P2, the Secretary of the 3rd respondent Municipality gave the reply, in which it was stated, inter alia, that no Councillor has been disqualified under the provisions of the Act. The particulars of the meetings of the Ward Sabha were also annexed to Ext. P2. That was followed by Ext. P2(a) letter from the Secretary of the Municipality to the 1st respondent stating, inter alia, that no Councillor has so far been disqualified under S.91(o) of the Act. Upon receipt of those materials and upon perusal of them, the 1st respondent prima facie found that the Councillors have failed to convene the meetings of the Ward Sabhas consecutively for more than six months and therefore issued Exts.P3 to P33 notices calling upon them to appear and show cause why a declaration should not be made to the effect that they are disqualified under S.91(o) of the Kerala Municipality Act. The petitioners challenge Exts.P3 to P33 notices in this Writ Petition. They also seek a direction to the 1st respondent not to proceed with the disqualification proceedings. According to them, the Election Commission has got no suo motu power to enter upon an enquiry regarding the disqualification of a Councillor. It can do so, if any petition is filed by any of the Councillors or any of the Electors in the election in which the concerned allegedly disqualified Councillor was elected or on a reference made by the Secretary of the Municipality that there is a dispute regarding the disqualification of a Councillor. Here, the petitioners point out that the 1st respondent called for the details regarding the meetings, perused them and prima facie found that the Councillors are disqualified and thereafter, initiated the disqualification proceedings. This, according to the petitioners, is without jurisdiction.
(3.) I heard the learned Counsel Shri. K. Ramakumar appearing for the petitioners, the learned Standing Counsel Shri. Murali Purushothaman for the State Election Commission, the learned Government Pleader Shri. M.A. Thomaskutty appearing for the 2nd respondent and also the learned Standing Counsel for the 3rd respondent. Before deciding the point raised in this Writ Petition, it will be fruitful to refer to the relevant statutory provisions. S.91(o) reads as follows:- "91. Disqualification of Councillors.- Subject to the provisions of S.92 or S.172, a Councillor shall cease to hold office as such if he, (a) ...................................................................................................................................... (o) has failed, twice consecutively, to convene once in three months the meeting of the Ward Committee or the Ward Sabha of which he is the Convenor; ....................................................................................................................................." S.92 empowers the Election Commission to decide on the dispute regarding disqualification. S.92 reads as follows:- "92. Determination of subsequent disqualification of a Councillor.- (1) Whenever a question arises as to whether a Councillor has become disqualified under S.86 or S.91, except Cl.(11) after having been elected as such Councillor, any Councillor of a Municipality concerned or any other person entitled to vote at the election in which the Councillor was elected, may file a petition before the State Election Commission, for decision. Provided that the Secretary or any Officer authorised by the Government in this behalf may refer such a dispute to the State Election Commission for decision. (2) The State Election Commission shall, after making such enquiry, as it considers necessary, decide whether such Councillor has become disqualified or not and the decision shall be final, so, however, that the State Election Commission may pass an interim order as to whether the Councillor shall continue to hold his office or not, till a decision is taken on the petition or reference referred to in sub-s.(1). (3) The petition or reference under sub-s.(1) shall be disposed of in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) when trying a suit." S.92(1) expressly provides that only a Councillor of the Municipality or an elector in the election in which the allegedly disqualified Councillor was elected, can file a petition before the State Election Commission to decide whether the Councillor has been disqualified or not. The proviso to the sub-section says, the Secretary of the Municipality or any Officer authorised by the Government in that behalf may also refer the said dispute to the State Election Commission. In the case on hand, admittedly, there is no petition by a Councillor or by the elector. In this case, the Commission has acted on Exts.P2 and P2(a) letters. Whether they can be treated as references made by the Secretary of the Municipality in a dispute regarding disqualification of a Councillor is the point to be decided in this case.;

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