Panchayat:Repo18/vol1-page0166

NOTES ON CASES Going by Section 10 of the Kerala Municipality Act (for short KMA), it can be seen that the exercise by way of rotation has to be done by the State Election Commission for each general election. The Commission has explained that the total number of Municipalities is 60 and 21 of them have been excluded wherein the Offices of Chairperson were reserved last time. Not less than 50% have to be reserved for women which includes Scheduled Caste (Women). The Commission will have to adopt the procedure of rotation under sub-section (6). The allotment of office of Chairperson will therefore, have to go by the Municipality having the highest percentage of population of Scheduled Caste, Scheduled Tribe or Women, as the case may be, going by sub-section (6) of Section 10. It is not a case where, as the petitioner contents, that the rotation should be in respect of each categories, viz Scheduled Caste, Scheduled Caste (Women) or Women (General) also, by taking them as one unit, vis-a-vis general quota. The method suggested by the petitioner to treat them as one unit and apply it in respect of alternate election is not one recognised by Section 10 of the Act. The first step will be to exclude the Municipalities covered by the reservation in the last election, herein being 21. When the statute prescribes a particular mode of doing things the said method alone has to be adopted and none else. There is no need to have a rotation between these three categories, going by Sections 10(2), 1 O(4), 10(5) and 10(6) of the KMA to form a cycle of rotation. A combined reading of the said sections show that in respect of each general election, the matter will have to be considered by the Election Commission separately - Velayudhan C. v. Kerala State Election Commission, Tvm and Another-2010 (3) KHC 838: 2010 (3) KLT856: ILR 2010 (4) Ker. 77 : 2010 (3) KLJ 168. Muhammed v. State of Kerala, 2006 (1) KLT 440; (Paras 5, 8; Union of India and Others v. Rakesh Kumar and Others, 2010 KHC 4021. 2010 (4) SCC 50: 2010 (1) KLTSN. 54: 2010 (1)SCALE 281 ; (Para 5) - Referred tol. Section 153 (16) of the PR Act provides that any casual vacancy arising in the office of the President or the Vice President shall be reported to the Commission, which shall, thereupon, take steps for the conduct of the election of the President or Vice President, as the case may be. In the case of a casual vacancy, the second limb of Rule 5(2) of the Election Rules obliges the Commission to fix the date of the meeting for the re-election "as soon as after the occurrence of the vacancy". The requirement to fill the post of the President of a Panchayat as soon as after the Occurrence of the vacancy, in the event of a casual vacancy arising, can be easily conceived. The large amount of duties and responsibilities enumerated in Section 156 of the PR Act, as functions of the President, are more than sufficient legislative material to state that the casual vacancy of a President of a Panchayat cannot be left unfilled except at the peril of the citizenry, particularly because the LSGIs are the institutions at grassroot level of local self governance in terms of the provisions of the Constitution of India. So much so, it is inadmissible to delay the election to the casual vacancy of the President. (Para 3) - Natakam Suresh v. Kerala State Election Commission and Others - 2009 (4) KHC 299: 2009 (4) KLT 297. [1999 KHC 814 : AIR 1999 Ker 293, (Para 5); 2007(3) KHC 9: 2007 (3) KLT 561, (Para 5), - Referred tol The fact that there is no automatic disqualification of a member on the ground of defection is well settled by the decisions of this Court in Jose Augustine v. State of Kerala, AIR 1999 Kerala 293 and Thangal V. A.K. v. BDO and Others, 2007(3) KLT561. This Court has also laid down in C. M. Mustafa v. State Election Commission judgment dated 01/12/2003 in WP (C) No. 37014/2003 that a person accused of defection is entitled to act as a member of the Panchayat until the date of the order the Commission declaring him as disqualified. That principle has been reiterated in C.P. Hydrose v. Kerala State Election Commission judgement dated 19/01/2004 in WP(C) No. 2047/2004) and in V. C. Kuriakose v. Kerala State Election Commission judgement dated 10/01/2007 in WP (C) No. 813/2007). In view of the law as noticed above, all the petitioner can aspire for is the expeditious disposal of the applications filed by him before the Commission under Section 4 of the Anti-Defection Act, since, obviously, even if any among the respondents before the Commission get elected as the President, that would also, ultimately, be wiped off, if the Commission decides against them in the matters pending before it. (Para 5 & 6) - Natakam Suresh v. Kerala State Election Commission and Others - 2009 (4) KHC 299; 2009 (4) KLT297. 1999 KHC 814: AIR 1999 Ker. 293, (Para 5); 2007(3) KHC 9:2007 (3) KLT561, (Para 5), - Referred tol S. 153 - A petition filed under Sub-section 14 of Section 153(14) cannot be dismissed on the preliminary ground as provided under S.93(1) of the Act. Similarly, though a Court is competent to dismiss an election petition challenging the election of a member of the Panchayat, which does not comply with the provisions of sections 89, 90 and 150, a petition filed under section 153(14) cannot be dismissed on those grounds. - Nimala Keralan v. Joy Cheriyan - 2007 (1) KLT692. On the basis of the percentage of population of women in the Panchayats which came under reservation for different category have been reserved for women in the year 2005. Further it is also noticed that since Panchayats, the office of President whereof were not reserved for women during the previous election were not sufficient to carry out the constitutional mandate of 33% reservation for women, the office of President of Grama Panchayat was reserved for women on the basis of the percentage of population of women in the Panchayat as per the 2001 census. Above mentioned procedure is in conformity with the constitutional principle so as to achieve the object of reservation of women as enshrined in Art. 243-D of the Constitution and Section 153 of the Kerala Panchayat Raj Act. - Muhammed v. State of Kerala — 2006 (1) KLT 440. S.153(3) - Post of president reserved for member of Scheduled Tribe - Subsequently "Maratti' community removed from the list of scheduled tribes. It is particularly so as once the member is elected on the basis that he belonged to the Scheduled Tribe, the same is not intended to result in depriving him of the membership on the ground that he has subsequently ceased to be a member of the Scheduled Tribe, that too, not on account of his volition- Chandra Naik v. Paivalikke Grama Panchayat-2005(2) KLT843. Second proviso to S.153(4)(d) of the Kerala Panchayat Raj Act, 1994 reserving the post of Chairman to women belonging to Scheduled Caste/Scheduled Tribe is not unconstitutional and it does not violate the equality clause enshrined in Art. 14 of the Constitution of India. State Legislature is competent to lay down the provision reserving the office of the president of the Grama Panchayat to women belonging to Scheduled Caste/Scheduled Tribe under the second proviso to S.153(4)(d) of Kerala Panchayat Raj Act and it will not offend the provisions contained in Art. 243D of the Constitution of India.--Suresh v. State of Kerala - 2005 (1) KLT 848. (1995) 4 SCC 520, 2003 (3) KLT (SC) (SN) 118 = (2003)6 SCC 697; (2001), 7 SCC 708; AIR 1963 SC 649 & AIR 1999 Bom. 404 Referred to; AIR 2004 Cal. 27 Dissented from:ļ.