Lissy Valsalan vs State Election Commission on 30 October, 2003

Kerala High Court Kerala High Court Lissy Valsalan vs State Election Commission on 30 October, 2003 Equivalent citations: 2003 (3) KLT 1185 Author: K Nair Bench: K B Nair JUDGMENT K.Balakrishnan Nair, J. O.P. No. 8164/03-V 1. The petitioner, who is a member of Keerampara Grama Panchayat, challenges Ext. P4 order passed by the 1st respondent State Election Commission, declaring that she has suffered disqualification to continue as a member of the Panchayat under Section 35(p) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as the Act). The brief facts of the case are the following:2. The petitioner was elected member of the Keerampara Grama Panchayat from Ward No.4 in the election held in September 2000. The Ward Member is the ex-officio Convenor of the Grama Sabha of that ward. The Grama Sabha has to meet at least once in three months. The last of the meetings of the Grama Sabha of her ward convened by her in the year 2001 was on 14.11.2001. So the next meeting should have been convened on or before 14.2.2002. In the meantime, the Government employees went on strike on 6.2.2002 which ended only on 8.3.2002. 3. The Vice President of the Panchayat was voted out by a no-confidence motion on 7.4.2002 and the President was voted out on 16.4.2002. Thereafter, new President was elected on 7.5.2002 and a Vice President was elected on 14.5.2002. The six months' period for convening the meeting expired on 14.5.2002. The meeting was convened on 22.6.2002 by notice dated 30.5.2002. The 3rd respondent filed a petition before the State Election Commission under Section 36 of the Kerala Panchayat Raj Act seeking to disqualify the petitioner under Section 35(p) of the Act on 13.8.2002. Ext. P1 is the said petition, to which the petitioner filed Ext. P2 objection. After hearing both sides and taking evidence, the Election Commission, by Ext. P4 order dated 7.3.2003, declared that the petitioner has ceased to be the member of the Panchayat with effect from 14.5.2002. This Original Petition is filed by her challenging Ext. P4. 4. According to the petitioner, the meeting for the month of November was held on 14.11.2002 and so she need convene the next meeting on some date in the months of December, January or February, ie., the meeting was to be convened between 1.12.2001 and 28.2.2002. Because of the strike of Government servants which commenced on 6.3.2002 and called off on 8.3.2002, the meeting could not be convened in the month of February. Therefore, the petitioner submits, the next meeting need be convened on some date in the months of March, April or May, ie., between 1.3.2002 and 31.5.2002. The petitioner has convened the meeting on 30.5.2002 by Ext. P3. According to her, convening means, the issuance of notice for the meeting. Therefore, it is submitted that she was not disqualified. It is also her case that the date and time of the meeting have to be fixed by the President of the Panchayat in the light of the relevant provisions of the Act and Rules. In the case of hand, the President has never discharged his duty in this regard. The disqualification will be attracted only if she fails to convene the meeting even after the President has fixed the date and time of the meeting. So, it is contended that the order of the Election Commission is unsustainable. 5. The 3rd respondent has filed a counter affidavit. According to him, the meeting has to actually take place within the three months' period. The three month's period has to be calculated from the date of the last meeting. Since the last meeting was held on 14.11.2001, the next meeting should be convened before 14.2.2002 and the second meeting should be convened before 14.5.2002. The petitioner has failed to do that. If the issuance of notice is treated as the convening, the meeting on 14.11.2001 was convened by notice dated
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Lissy Valsalan vs State Election Commission on 30 October, 2003

20.10.2001 and so, even going by the petitioner's contention, notice for the first meeting should be issued before 20.1.2001 and the second meeting before 20.4.2002. If the petitioner's method of computation of months is taken with reference to the date of issue of the notice, the six months' period was over between November and April. So, in any view of the matter, the petitioner is disqualified, it is submitted. It is further submitted that the petitioner has to take the initiative for convening the meeting, being the Convenor of the Grama Sabha. She cannot put the blame on the President of the Panchayat and wriggle out of the liability. So the 3rd respondent prays for dismissal of the Original Petition. 6. I heard both sides. Though several contentions were raised by the learned Counsel for the petitioner, the most important among them is regarding the responsibility of the President of the Panchayat in the matter of convening the meeting. According to the Counsel, the petitioner could convene the meeting only if the President of the Panchayat fixes the date and time of the meeting. Therefore, the failure to convene the meeting could be attributed to her only if the President has performed his part. To understand this contention properly, reference to the relevant statutory provisions will be fruitful. Article 343(b) defines Grama Sabha as follows:"Grama Sabha means a body consisting of persons registered in the Electoral Rolls relating to a Village comprised within the area of Panchayat at the Village level". The relevant portion of Section 3 of the Kerala Panchayat Raj Act dealing with Grama Sabha reads as follows:"3. Grama Sabha (1) For the purpose of this chapter, each constituency of a Village Panchayat may be specified as a village under Clause (g) of Article 243. (2) All persons whose names are included in the electoral rolls relating to a village comprised within the area of a Village Panchayat shall be deemed to be constituted as Grama Sabha of such village; (3) Grama Sabha shall meet atleast once in three months at the place fixed by the Village Panchayat and to such meetings, the Convenor of the Village Panchayat shall, compulsorily invite the member of the Block Panchayat, the District Panchayat and the Legislative Assembly representing the area of the Grama Sabha. Provided that the Convenor shall, on a request in writing made by not less than ten percent of the members of any Grama Sabha, convene a special meeting of the Grama Sabha within fifteen days with the agenda given along with the request: Provided further that such special meeting shall be convened only once within the period between two general meetings. (4) The member of a Village Panchayat representing the constituency comprised in the area of a village shall be the convenor of that Grama Sabha: however due to any reason, physical or otherwise the Convenor is unable to perform his functions as such, the President may appoint a member representing any adjacent constituency as the Convenor. (5) Every meeting of the Grama Sabha shall be presided over by the President of the Village Panchayat or in his absence, the Vice President or in the absence of both of them, by the Convenor of Grama Sabha."

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Lissy Valsalan vs State Election Commission on 30 October, 2003

Sub-section (1) of Section 3 provides that each constituency of a Grama Panchayat will be a village as provided under Article 243. Constituency is defined in Section 2(7) of the Kerala Panchayat Raj Act as a ward of the Panchayat. Sub-section (2) of Section 3 says that all persons included in the electoral rolls relating to a village comprised within the area of the Grama Panchayat shall be constituted as the Grama Sabha of that village. 6. In the light of the above statutory provisions, the Ward Member is the Convenor of the Grama Sabha. The President of the Grama Panchayat will be its President ordinarily. It can also be seen that the Grama Sabha shall meet at the place fixed by the Village Panchayat. Section 3A(4) of the Act provides, the quorum of the Grama Sabha shall be ten percent of the number of voters of its area and the procedure for convening and conducting meetings of the Grama Sabha shall be such as may be prescribed. The President of the Grama Panchayat has to fix the date and time of the meeting in consultation with the Convenor as per Rule 4 of the Rules governing the convening and meeting of Grama Sabha published as per SRO No. 321/95. As per the very same Rule, the Secretary of the Grama Panchayat has to notify the date and time of the meeting in various public places and the Convenor of the Grama Sabha has to endeavor to make all the members of the Grama Sabha to participate in the meeting. Sub-section (3) of Section 3 provides that the Convenor has to invite the members of Block Panchayat, District Panchayat and the Legislative Assembly representing the area of the Grama Sabha to the Grama Sabha. The proviso to the said section says that the Convenor shall, on a request being received from not less than 10% of the members of the Sabha, convene a special meeting of it. Sub-section (3) does not say that the ordinary meetings of the Grama Sabha should be convened by the Convenor. Only the special meeting has to be convened by him. When Sub-section 3 of Section 3 and Rule 4 of the above mentioned Rules are read together, they will reveal the following points regarding the meeting of the Grama Sabha:01. The place of meeting of the Grama Sabha shall be fixed by the Village Panchayat. 02. The date and time of the meeting have to be fixed by the President in consultation with the Convenor. 03. Any special meeting oh the request of the members of the Sabha shall be convened by the Convenor. 04. The Convenor has to compulsorily invite the members of the Block Panchayat, District Panchayat and the Legislative Assembly representing the area of the Grama Sabha. 05. He shall try to ensure the participation of all the members of the Grama Sabha in it. 7. In view of the above position, the failure to convene the meeting can be attributed to the Convenor only if he fails to convene the meeting after the President of the Panchayat fixes the date and time of the meeting or after the required number of members of the Sabha gives a requisition for the meeting. In the case on hand, nobody has a case that the petitioner failed to convene the meeting after the President of the Panchayat fixed the date and time of the meeting. 8. If the Convenor fails to convene two consecutive meetings, he incurs disqualification under Section 35(p). The said provision reads as follows:35. Disqualification of members: - Subject to the provisions of Section 36 or Section 102, a member shall cease to hold office as such, if he(a) .................. (b) .................. ....................
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Lissy Valsalan vs State Election Commission on 30 October, 2003

(p) has failed thrice consecutively, to convene the meetings of the Grama Sabha, due once in three months, of which he is the Convenor: ...................................... Disqualification is provided as the wages of failure. Therefore, the relevant provisions have to be strictly construed. 9. Further, there are no positive words in the Act or Rules mandating the Convenor to take the initiative to convene the meeting except in the case of a meeting to be convened on the request of the requisite number of members. Going by the fundamentals, a man can be punished only for violation of law and law alone. It is a fundamental principle of law that in a law what are the commissions or omissions which will entail penal consequences, should be defined with precision and notified in advance so that a citizen can avoid doing them. Vagueness in a penal provision renders it ultra vires and unconstitutional. Douglas, J. in the decision in Krishian v. Board of Regents, (1967) 385 US 589, has stated as follows:".......... a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves Judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not, in each particular case...... Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government to impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce". The Supreme Court, in Kartar Singh v. State of Punjab (1994 (3) SCC 569), has reiterated this principle in the following words:"130. It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also Judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." In the light of the above principles of law, the vagueness, if any, in the statutory provisions should go in favour of the petitioner. 10. By interpreting the statutory provisions, some additional duty cannot be cast upon the petitioner and thereafter disqualify her for the failure to perform the same. That was what has been done by the Election Commission in Ext. P4. In paragraph 12 of the impugned order, it has been held as follows:"It is relevant to note that the Convenor of the Grama Sabha will have to fix a particular date for convening the meeting and discuss it with the President and convene the meeting on the date suggested and the time fixed". So, according to the Election Commission, the Convenor of the Grama Sabha has to take the initiative to convene the meeting. But the relevant statutory Rule provides that it is for the President to take the initiative and to fix the date and time in consultation with the Convenor. Thus, the finding of the Election Commission which led to the disqualification of the petitioner runs counter to the statutory scheme. 11. Sub-section (5) of Section 3 of the Act provides that the President of the Panchayat has to preside over the meeting of the Grama Sabha. Every Grama Sabha has to meet mandatorily atleast four times in a year. A
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Lissy Valsalan vs State Election Commission on 30 October, 2003

Panchayat having 15 wards will have total 60 meetings of the Grama Sabhas. So, the President has to attend a Grama Sabha atleast once in 6 days. Therefore, the convenience of the President is paramount in convening the meeting. Taking into account this aspect, the Rule making authority has empowered the President to fix the date and time of the meeting and not the Convenor. 12. In this case, as noticed earlier, no one has a case that the petitioner failed to convene the meeting after the fixation of the date and time for the same by the President. Therefore, the impugned order cannot be upheld. The petitioner has raised several other technical contentions also which I have already mentioned hereinabove. I am not rendering any decision on them as the same is unnecessary for the disposal of this case. 13. In the result, the Original Petition is allowed and Ext. P4 is quashed. WP(C) Nos. 21179, 29496, 29509, 29510, 29524, 29525, 29705 & 29721 of 2003. 14. The cases of the petitioners in all these Writ Petitions are more or less identical to the case of the petitioner in OP No. 8164/03. The contentions are also identical. In none of these cases, the respondents have a case that the petitioners have failed to convene the meeting within the statutory time limit even after the President of the Panchayat has fixed the dates and time of the meetings. Therefore, the petitioners are entitled to succeed and the Writ Petitions are allowed quashing the impugned orders of the Election Commission, disqualifying them.

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