Mohammed Ali Vs. Kulukkalloor Grama Panchayat - Court Judgment

Excerpt:
- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]thottathil b. radhakrishnan, j.1. all the 16 seats to be filled up by direct election in terms of section 6 of the kerala panchayat raj act, 1994, for short, the 'pr act', in the first respondent grama panchayat were filled up in 2005 and abdul kareem was elected the president.2. in terms of section 162(1) of the p.r. act, a village panchayat has three standing committees, for finance; development; and welfare. section 162(2) provides that the elected panchayat members, except the president and vice-president, shall be elected as members in any of the standing committees and that the number of members elected to each standing committee shall, as far as possible, be equal. section 162(6) provides that the president shall be an ex-officio member of all standing committees without the right to vote. it further provides that the vice president shall be an ex-officio member and chairman of the standing committee for finance.3. the finance, development and welfare committees of the first respondent panchayat were respectively constituted with the vice president and four members in the finance committee; another five members in the development committee and another five members in the welfare committee. the president, in terms of law, was the ex-officio member of all the committees, without the right to vote.4. abdul kareem ceased to be the president as a no confidence motion was carried against him.5. later, mohandas, a member of the standing committee for welfare was declared by the kerala state election commission as disqualified on account of defection in terms of the kerala local authorities (prohibition of defection), act, 1999, for short, the 'p.d. act'.6. sri. pradeep kumar, then a member of the standing committee for welfare, was elected the president of the panchayat. thereby, he ceased to have the right to vote in the standing committee for welfare and he became an ex-officio member of all standing committees, including that committee, without the right to vote, by virtue of section 162(6).7. the aforesaid facts would show that at a given point of time, the standing committee for welfare had only three members with right to vote.8. respondent no. 5, sri. rajendranunni, resigned from standing committee for finance. on 29.7.2009, he was co-opted as a member of the standing committee for welfare and abdul kareem, the erstwhile president was co-opted as member of the finance committee.9. the materials show that respondent no. 4, rajani, submitted her resignation from the standing committee for finance. that was accepted by the panchayat on 16.9.2009. on that day, acting on an agenda of filling up the vacancy in standing committee, it was decided to make her a member of the standing committee for welfare.10. with the aforesaid fact situation, a notice of a motion of no confidence was brought up against the petitioner, who is the chairman of the standing committee for welfare, by mustering strength on the basis that respondents 4 and 5 are members of the standing committee for welfare. they also joined in signing and giving the proposed motion of no confidence, to the competent statutory authority.11. faced with the aforesaid situation, the petitioner seeks a declaration that respondents 4 and 5 are not entitled to act as members of the standing committee for welfare and that the no confidence motion moved by three persons, including respondents 4 and 5, is unauthorised. he seeks intervention to restrain the tabling and consideration of that motion.12. the above noted facts are not in dispute.13. in fact, the factual controversies centre around certain matters which are unnecessary to resolve this case. respondents 4 and 5 have, by a separate counter affidavit, stated facts which would be relevant only if i were to consider whether the erstwhile president abdul kareem had tendered ext.pl nomination. the plea of the respondents is that the said document is a fabricated one. those disputes are alien to the core is sue here and are excluded from consideration.14. respondent no. 3, the president, pleads that, with only 14 members being available, one vacancy in any one of the standing committees has necessarily to be remained unfilled and the panchayat committee, 'in its prerogative', thought it fit to fill up one post each in the standing committee for welfare and in the standing committee for finance rather than fill up both the vacancies in the standing committee for welfare.15. relying on chathukutty p. v. kalpatta municipality and ors. 2009 (4) klt 303 : 2009 (4) khc 74, the learned senior counsel appearing for the third respondent argued that the writ petition itself is not maintainable in as much as a notice of a motion of no-confidence cannot be challenged. the petitioner in that case moved this court seeking interference on the ground that the motion of no confidence is intended to tarnish his image and that the allegation of negligence leveled against him, was beyond comprehension and, if at all, is only a matter of collective responsibility. this court held that a motion of no confidence does not necessarily depend upon the abilities, capabilities or qualities of the person against whom it is moved and that it is part of political process, support to which, may depend upon various factors, may be even, sometimes, unreasonable in the views of the common man. however, the issue raised in this case, is as to whether respondents 4 and 5 were entitled to hold the office - as members of the standing committee for welfare - and, if not, whether, they had the locus, authority or entitlement to join in giving the notice of an intended motion of no confidence, as against the petitioner who is the chairman of that standing committee. section 162(12) provides for a motion of no-confidence on the chairman of the standing committee other than the standing committee for finance. subject to prescribed provisions and procedures, such motion may be moved. if such a motion is passed with the support of not less than the majority of the members of the standing committee, the chairman of that standing committee shall cease to hold office immediately. therefore, the question whether a person is a member of a standing committee or not is relevant for consideration when a notice of a motion of no confidence against the chairman of that committee is given. in this case, the plea is that respondents 4 and 5 are not members of the standing committee of welfare. the contention is that they have no such identity, referable to any legitimate source, in terms of the p.r. act. therefore, the ratio of chathukutty's case (supra) does not apply to the case in hand. the objection raised by the third respondent in this regard is hence overruled.16. rule 15(1) of the kerala panchayat raj (standing committee) rules, 2000, hereinafter referred to as the 'standing committee rules', provides that a notice, in respect of the intention of presenting a motion expressing no-confidence in the chairman of a standing committee other than the standing committee for finance shall be delivered in person, in form no. 4 appended to those rules, signed by 'not less than one third of the elected members of the standing committee, together with...'; the question whether the notice is signed by not less than one third of the elected members of the standing committee is an issue relevant to decide whether the motion of no-confidence against a chairman of a standing committee is to be tabled on the basis of that notice. the consequence of the motion being carried is that the chairman would be deemed to have vacated the office on such motion being carried. therefore, the provisions have to be construed strictly and, when the question is raised, it needs to be decided as to whether the persons who gave the notice of a no confidence motion had the locus and lawful authority to do so.17. having noticed that rule 15 of the standing committee rules provides opportunity only for the elected members of the standing committee to give notice of a motion of no-confidence, the question that immediately arises is as to whether the movement of respondents 4 and 5 to the standing committee for welfare was by election.18. election to the standing committees is governed by rule 5 of the standing committee rules. the manner of election of members and declaration of result are governed by rules 7 and 8. rule 9 of the standing committee rules provides for filling up of casual vacancies. sub-rule (1) thereof provides that on the occurrence of a casual vacancy of a member in a standing committee, the president shall convene a special meeting of the elected members of the panchayat within the time given under sub-section (10) of section 162 of the p.r. act and conduct election in accordance with the procedure under rules 7 and 8 of the standing committee rules. sub-rule (2) of rule 9 provides that if more than one casual vacancy occur at a time in a standing committee, the vacancies shall be filled up in a single voting.19. reverting to section 162 of the p.r. act, sub-section (10) thereof provides that an election to fill up casual vacancy of the member of a standing committee shall be conducted within thirty days of the occurrence of that vacancy. for immediate recollection, is the provision in the standing committee rules referred to earlier, namely, rule 9, that the election against a casual vacancy of a member in a standing committee has to be held in a special meeting of the elected members convened for that purpose. convening of such a meeting is the duty of the panchayat in terms of that rule.20. sub-section (2) of section 162 provides that 'every standing committee shall consist of such number of members...as decided by the panchayat...'. sub-section (3) provides that the number of members of each standing committee, as decided by the panchayat under sub-section (2), shall not be changed within the term of that panchayat.21. a conjoined reading of sub-sections (2), (3) and (10) of section 162 drives home, without any doubt, that the total number of members of each standing committee shall be as decided by the panchayat in terms of sub-section (2) and, having regard to sub-section (3), the total number of the members of a standing committee is not a matter that could be tinkered in the meetings of the panchayat committee and any casual vacancy has to be filled up, only by election and not otherwise. rule 9(1) of the standing committee rules provides for conducting election for the purpose of filling up the vacancies. the procedure to be followed is that contained in rules 7 and 8 of those rules which deal with the manner of election of members and the manner of recording votes, counting of votes and declaration of result in elections. rule 4 provides that the president shall give notice, for convening the meeting for election of members to standing committee, to all the elected members of the panchayat, five days prior to the date of the meeting. sub-rules (2) and (3) govern the manner in which service of that notice has to be done. rule 7(1) of those rules provides that every candidate who wishes to be elected to a standing committee shall, within the time and date given in the notice under rule 4, inform the president of his candidature in writing and sub-rule (3) provides that if the number of seats vacant in a standing committee and the number of candidates are equal, the chairman shall declare all such candidates duly elected. this procedure is one of election without contest. but, there is no provision by which a member of a panchayat can be christened as a member of a standing committee without going through the process of election, even if it be, an uncontested one. such election has to be in a meeting which is convened by issuing a notice under rule 4 of those rules.22. as of now, that is after the institution of this writ petition, the kerala panchayat raj (amendment) act, 2009 has come into being as on 7.10.2009, whereby sub-section (3) of section 162 stands deleted. this legislative modification is being noted to ensure that on the dates relevant for this case and even as on the date of institution of this writ petition, the law was nothing but that contained in sub-sections (2) and (3) of section 162 as considered above. even if sub-section (3) of section 162 is deleted, that would only enable the committee to change the number of members of each standing committee, even during the term of the panchayat. that does not water down, in any manner, the statutory dictate in the different sub-sections of section 162 which provide election as the only mode of filling up the vacancy of a member of a standing committee, as held above.23. on the face of all the aforesaid statutory provisions, is the plea of the third respondent that, the panchayat committee, in its prerogative, thought it fit to fill up one post each in the standing committees for welfare and finance rather than fill up both the vacancies in the standing committee for welfare. indisputably, no notice under rule 4 of the standing committee rules was issued; no special meeting was convened in terms of rule 9(1) of those rules; there was no election, even an uncontested one, to the vacancies in the standing committee for welfare. hence, the defence offered is wholly contrary to the statutory provisions contained in the p.r. act and the standing committee rules as noticed above. the impugned action is, therefore, unconstitutional and void, having regard to article 14 and the provisions in chap.ix of the constitution. firstly, on the face of the embargo on sub-section (3) of section 162, the panchayat committee could not have changed the number of members of a committee fixed under sub-section (2). secondly, and more importantly, without conducting an election in a meeting specially convened for that purpose, the casual vacancy could not have been filled up. even if there is no contest, the declaration that one is elected uncontested, can be only in that meeting. thirdly, even if the casual vacancies were filled up by election, if there were two vacancies, as in the case in hand, the election has to be by the first preference vote. having not followed any of the aforesaid procedures, it has to be necessarily held that respondents 4 and 5 are not entitled to act as members of the standing committee for welfare, of the first respondent grama panchayat. they had no authority to join in giving notice for the motion of no confidence against the petitioner. the motion of no confidence for which notice is given with respondents 4 and 5 also as signatories, has also to necessarily fail.in the result, this writ petition is allowed declaring that respondents 4 and 5 are not entitled to act as members of the standing committee for welfare of the first respondent grama panchayat. it is declared that the notice of intended motion of no confidence signed by respondents 4 and 5 also, is void to that extent and hence, the tabling and consideration of any no confidence motion on the basis of ext.p7 notice is hereby prohibited. no costs.