Krishna Kumar vs Kerala State Election Commission

Thottathil B. Radhakrishnan, J.—This Writ Petition is before us on a reference by the learned single Judge on the premise that there is conflict of opinion between the judgments of this Court in Kunjappan Vs. Rajan, and Vinodkumar Vs. Faizal, .

The petitioner incurred cessation of office by the operation of Section 35(1)(k) of the Kerala Panchayat Raj Act, 1994, hereinafter, the ''K.P.R. Act'', for short. A decision to that effect by the Election Commission has been upheld by this Court in Krishna Kumar v. Kerala State Election Commission 2010 (3) KLT 315. The issue which has now brought the petitioner before this Court is referable to the question as to whether the operation of any disqualification referable to cessation of membership on account of Section 35(1)(k) of the K.P.R. Act is a perpetual disqualification or whether it is co-terminus with the cessation of the term of the committee, of which he ceases to be a member by the effect of Section 35(1)(k).

In Kunjappan (supra), after noticing the different aspects of the matter, including the power of the remaining members of the committee to even order restoration of the membership as enjoined by Section 37(2), this Court concluded that the disqualification of a member u/s 35(1)(k) is not a permanent feature and what is incurred is disqualification to hold that office for the rest of the term unless his membership is restored u/s 37(2). In Vinodkumar (supra), it was stated that the effect of Sections 29(f) and 31(1)(n) are automatic and run along with incurring of disqualification u/s 35(1)(q). The ground u/s 35(1)(q) is that which relates to the failure to file declaration of assets within the time limit prescribed in Section 159.

Though the Writ Petition in hand has been referred to the Division Bench, the incurring of disqualification and the continued effect of the disqualification in this case is referable only to Section 35(1)(k). Therefore, for the purpose of the case in hand, all that is needed to he noticed is that Kunjappan has been decided clearly laying down that a member who is disqualified on account of the provision in Section 35(1)(k) is disqualified to hold that office for the rest of the term and that such disqualification is not a permanent feature. Law as so laid is in no manner contradicted by the views in. Vinodkumar. For the purpose of clarity, we state that it is the law that the disqualification incurred by cessation of office on account of a ground referable to Section 35(1)(k) of the K.P.R. Act is co-terminus with the term of office of the committee of which the person incurring the disqualification was a member and in relation to which he incurs such disqualification.

As rightly pointed out by the learned Counsel for all parties appearing, that in terms of the provisions of the K.P.R. Act, the question whether a particular candidate is qualified or not is to be determined with reference to the date of scrutiny of nomination.

While we clarify the position of law as stated above, there is no reason to issue any particular order in this case, the Writ Petition having been filed merely on the basis of information furnished under the Right to Information Act, which, in our view, is only an information of an officer and cannot be acted upon by the Returning Officer, abridging his statutory power. It would also not tie down the Election Commission in any manner. The Writ Petition is ordered accordingly.