Panchayat:Repo18/Law Manual Page0206: Difference between revisions

Latest revision as of 04:04, 24 January 2019

then he cannot be deemed to have been validly elected. Therefore, as far as the prayer made in the election petition is concerned, the disqualification attached to a candidate, after he became a member cannot strictly become infructuous. Therefore, by a clear provision inserted subsequently, if the Legislature has intended that a by-election shall be conducted within the prescribed time, merely because an unpleasant situation may arise, in case the election petition is ultimately allowed, cannot injunct the Election Commission from proceeding to conduct the by-election, when it is mandated by the provisions and thereby bound to exercise its duty and to conduct the by-election within the said framework, unless there is any other provision which empowers the authority or the Act to relax time limit as prescribed thereunder. – Pulkuzhiyil Mohammedkutty v. Pookkottil Sadanandan and Another - 2010 (1) KHC 806 (DB): 2010 (1) KLT 1018: ILR 2010 (2) Ker. 217.

The provision of filing statement and the requirement to have it up-dated as and when changes occur in the assets and liabilities, abundantly show that the object sought to be achieved by that provision is to have information available with competent authorities even in the eventuality of any allegation being attributed to any conduct of a member of a panchayat which may, ultimately, turn out to be of, amassing wealth disproportionate to known sources of income. In that context, it would be meaningless to say that if a statement of assets and liabilities has been despatched or put in transit through a post office to the competent authority, it has to be presumed that the member has duly filed or submitted the statement in obedience to the legislative commands in Section 159. The despatch, even if proved, would not absolve the duty of the member of a panchayat to file the statement before the competent authority. The clear intention is that the statement shall be available in the file of the competent authority. The liability to ensure that it is filed is that of the member. Therefore, even having regard to the object of the provisions being interpreted, it cannot but be held that a member of a panchayat has to file the statement before the competent authority by ensuring that it is available before the competent authority, in the physical sense. The member cannot escape the clutches of Section 159 read with Section 35(1)(q), by contending that he had put the statement of assets and liabilities in transmission through post and that it ought to be presumed that he has discharged the obligation of filing the statement before the competent authority. (Para 20) - Faisal C.P. Another v. Kerala State Election Commission, Tvm, and Others - 2010 (1) KHC 32. 2010 (1) KLT SN 59. V.S. Krishnan v. Westfort Hi-tech Hospital Ltd. 2008 (2) KA

SCC 363 : 2008 (3) SCALE 184 : ILR 2008 (2) Ker. 253 2008 (2) KLT SN 75 (Paras 6, 19) - Referred to:). Failure to file a declaration is outside the purview of S.35(q) of the Act and is not a ground for disqualification. A mere filing of an incorrect statement will not attract the consequences of S. 159(3). On the other hand, the statement filed must be false and the member should know and believe the same to be false and also should not believe the same to be true, in order to render himself liable to be proceeded against. If all the aforesaid ingredients of the section are satisfied, then the consequence is that he is liable to be proceeded against in accordance with law, for filing such a false statement. A combined reading of the aforesaid provisions contained in S.159 of the Act indicates that a member can be disqualified from continuing as a member if he has failed to file a statement and if a false statement is filed, he is liable to be proceeded against in accordance with law, provided the other ingredie section are also satisfied. – Karthikeyan P. T. v. Kerala State Election Commissioner and Others - 2008 (4) KHC 260: 2008 (3) KLJ 341 : 2008 (4) KLT 63 : ILR 2008 (4) Ker.119.

60. 51[Honorarium] to members of Panchayats and other perquisites of the President of District Panchayats.- (1) There shall be paid 52[honorarium) at such rate as may be prescribed to the President, the Vice-President and other elected members of Panchayat.

(2) The President of a District Panchayat shall be entitled without payment of rent, to the use of a house at the headquarters of the District Panchayat throughout his term of office and for a period of fifteen days immediately thereafter or in lieu thereof to a house rent allowance as may be prescribed.

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-Panchayat members, to submit statements regarding Assets. — (1) A member of the Panchayat shall, within **[fifteen months] from the date of assuming his office, file a statement of assets and liabilities of himself and of the members of his family, in the form prescribed before the competent authority authorised in this behalf by the Government by notification in the Gazette:
+then he cannot be deemed to have been validly elected. Therefore, as far as the prayer made in the election petition is concerned, the disqualification attached to a candidate, after he became a member cannot strictly become infructuous. Therefore, by a clear provision inserted subsequently, if the Legislature has intended that a by-election shall be conducted within the prescribed time, merely because an unpleasant situation may arise, in case the election petition is ultimately allowed, cannot injunct the Election Commission from proceeding to conduct the by-election, when it is mandated by the provisions and thereby bound to exercise its duty and to conduct the by-election within the said framework, unless there is any other provision which empowers the authority or the Act to relax time limit as prescribed thereunder. – Pulkuzhiyil Mohammedkutty v. Pookkottil Sadanandan and Another - 2010 (1) KHC 806 (DB): 2010 (1) KLT 1018: ILR 2010 (2) Ker. 217.
-Provided that, a person who is a member of the Panchayat at the commencement of this Act shall submit such a statement to the competent authority, before the date specified by the Government in this behalf.
-(2) Where a member of the Panchayat who filed a statement under sub-section (1) acquires any asset in the name of himself or other members of his family or disposes or creates any liability thereafter on the assets specified in the statement he shall file a statement in this regard to the competent authority within three months from the date of such acquisition or disposal or creation of liability, as the case may be.
+The provision of filing statement and the requirement to have it up-dated as and when changes occur in the assets and liabilities, abundantly show that the object sought to be achieved by that provision is to have information available with competent authorities even in the eventuality of any allegation being attributed to any conduct of a member of a panchayat which may, ultimately, turn out to be of, amassing wealth disproportionate to known sources of income. In that context, it would be meaningless to say that if a statement of assets and liabilities has been despatched or put in transit through a post office to the competent authority, it has to be presumed that the member has duly filed or submitted the statement in obedience to the legislative commands in Section 159. The despatch, even if proved, would not absolve the duty of the member of a panchayat to file the statement before the competent authority. The clear intention is that the statement shall be available in the file of the competent authority. The liability to ensure that it is filed is that of the member. Therefore, even having regard to the object of the provisions being interpreted, it cannot but be held that a member of a panchayat has to file the statement before the competent authority by ensuring that it is available before the competent authority, in the physical sense. The member cannot escape the clutches of Section 159 read with Section 35(1)(q), by contending that he had put the statement of assets and liabilities in transmission through post and that it ought to be presumed that he has discharged the obligation of filing the statement before the competent authority. (Para 20) - Faisal C.P. Another v. Kerala State Election Commission, Tvm, and Others - 2010 (1) KHC 32. 2010 (1) KLT SN 59. V.S. Krishnan v. Westfort Hi-tech Hospital Ltd. 2008 (2) KA
-(3) Any member of the Panchayat who makes a statement under sub-section (1) or sub-section (2) which is false and which he knows or believes to be false or does not believe to be true shall be liable to be proceeded against in accordance with law, for filing such false statement.
-(4) Where a member of the Panchayat fails to file such a statement to the competent authority within the date specified under sub-section (1) and sub-section (2), action may be taken to disqualify him from continuing as member of the Panchayat under Section 35.
+SCC 363 : 2008 (3) SCALE 184 : ILR 2008 (2) Ker. 253 2008 (2) KLT SN 75 (Paras 6, 19) - Referred to:).
-Explanation 1.- For the purpose of this section "family" of a member of the Panchayat means, wife or husband of that member and his parents, unmarried sisters and children who are dependent on him.
+Failure to file a declaration is outside the purview of S.35(q) of the Act and is not a ground for disqualification. A mere filing of an incorrect statement will not attract the consequences of S. 159(3). On the other hand, the statement filed must be false and the member should know and believe the same to be false and also should not believe the same to be true, in order to render himself liable to be proceeded against. If all the aforesaid ingredients of the section are satisfied, then the consequence is that he is liable to be proceeded against in accordance with law, for filing such a false statement. A combined reading of the aforesaid provisions contained in S.159 of the Act indicates that a member can be disqualified from continuing as a member if he has failed to file a statement and if a false statement is filed, he is liable to be proceeded against in accordance with law, provided the other ingredie section are also satisfied. – Karthikeyan P. T. v. Kerala State Election Commissioner and Others - 2008 (4) KHC 260: 2008 (3) KLJ 341 : 2008 (4) KLT 63 : ILR 2008 (4) Ker.119.
-Explanation 2.- For the purpose of this section "asset" means all immovable properties and movable properties worth not less than Rupees ten thousand.]
-NOTES When a member is disqualified under Sec. 35(q) read with Sec. 159, he is presumed to be validly elected. Whereas, in the election petition filed before the Munsiff Court by the appellant herein, the very election of the first respondent is under challenge. If the election of the first respondent is declared void,
+'''60. 51[Honorarium] to members of Panchayats and other perquisites of the President of District Panchayats.'''- (1) There shall be paid 52[honorarium) at such rate as may be prescribed to the President, the Vice-President and other elected members of Panchayat.
+(2) The President of a District Panchayat shall be entitled without payment of rent, to the use of a house at the headquarters of the District Panchayat throughout his term of office and for a period of fifteen days immediately thereafter or in lieu thereof to a house rent allowance as may be prescribed.