O K GOPALAN Vs. CHIEF SECRETARY SCRETARIAT THIRUVANANTHA PURAM
HIGH COURT OF KERALA
CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHA-PURAM
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(1.) On February 4, 2003, a Bench of this Court heard and decided O.P.No. 29473/2000. It was inter alia held that the Municipal Councillors were not qualified to hold their respective offices, as they had not subscribed to the oath as prescribed in the statute at the time of filing the nomination papers. Resultantly, they were directed to vacate their respective offices. The validity of this order was challenged in a petition for Special Leave to Appeal (Civil) No. 6261-6262 of 2003. On April 21, 2003, the petition was dismissed. Even a Legislative measure was adopted. On March 29, 2003, Ordinance No. 2 of 2003 was promulgated. Ultimately, the Legislature passed the Kerala Municipality (Amendment) Act, 2003 (Act 10 of 2003). The validity of this Act has been questioned. The short question is - Does the Act merely overrule the judgment or does it obliterate the basis of the earlier decision The relevant facts may be briefly noticed.
(2.) The elections to the Municipal Councils in the State of Kerala were held in September, 2000. Respondent Nos. 3 to 23 were elected as Municipal Councillors in Irinjalakuda Municipality. This election was challenged through a petition under Art.226 of the Constitution. It was inter alia alleged that while filing the nomination papers, the elected Councillors had subscribed to an oath, which did not conform to the second Schedule of the Kerala Municipalities Act, 1994. The crucial words that I will maintain sovereignty and integrity of India were missing from the oath. On this basis, it was maintained that the said respondents were not qualified to contest the election. Their nomination papers had been wrongly accepted. The election could not be sustained. A prayer for the issue of a writ of quo warranto to oust them from the office of the Municipal Councillors was made.
(3.) The case was contested by the respondents. It was inter alia pleaded that there was a bona fide omission. While printing the forms, the amendment to the Second Schedule as made in the year 1999 had not been incorporated. As a result, the candidates had subscribed to the oath in the old form. In this form, the undertaking to uphold the sovereignty and integrity of India had not been printed. It was further pointed out that by virtue of Art.51A(c) of the Constitution, the omission deserved to be overlooked.;
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