Common Judgment:

1. These writ petitions are connected, and therefore, I am disposing of these cases by a common judgment. When the State Election Commission declares a person disqualified for failure to lodge an account of election, whether a detailed enquiry, after hearing the parties, is necessary is the short point to be decided in this case.

2. The petitioners were candidates in the election conducted in the General Election to the Local Self-Government Institutions in Kerala in the year 2020. They were disqualified as per the impugned orders in these writ petitions invoking the powers under Section 33 of the Kerala Panchayat Raj Act, 1994 (for short, the Act 1994). The short point raised by the petitioners is that such an order is passed without affording an opportunity of hearing to the petitioners and without issuing a show-cause notice. Hence, these writ petitions.

3. Heard counsel for the petitioners, the Special Government Pleader and the Standing Counsel appearing for the State Election Commission.

4. Section 86 of the Act 1994 deals with the lodging of accounts with the officer authorised by the State Election Commission by a contesting candidate at an election. It will be better to extract Section 86 of the Act 1994:

                  “Section 86: Lodging of accounts with the officer authorised by the State Election Commission.

                  Every contesting candidate at an election shall, within 30 days from the date of election of the returned candidate lodge with the officer authorised by the State Election Commission, an account of his election expenses along with the connected records which shall be a true copy of the account kept by him or by his election agent under Section 85. The said officer shall, as soon as may be, immediately after the expiry of the said period of 30 days, make available to the officer appointed by the Commission, the accounts of election expenses received by him along with a list of candidates who did not lodge the accounts of election expenses prescribed by the Commission.”

5. Section 85 of the Act 1994 deals with the mandate of keeping separate and correct accounts of all expenditure in connection with the election by the candidate or his election agent, and also the mandate that the maximum expenditure shall not exceed such amount as may be prescribed. Section 33 of the Act 1994 deals with the disqualification for failure to lodge account of election expenses. It will be better to extract Section 33 of the Act 1994:

                  “Section 33: Disqualification for failure to lodge account of election expenses.

                  If the State Election Commission is satisfied that a person -

                  (a) has failed to lodge an account of election expense within the prescribed time and manner and has no sufficient reason or justification for such failure; or

                  (b) The accounts lodged are false;

                  (c)  Has incurred election expenses exceeding the prescribed limit.

                  the State Election Commission shall, by order published in the Gazette, declare him to be disqualified and any such person shall be disqualified for a period of five years from the date of the order.”

6. Rule 59 of the Kerala Panchayat Raj (Conduct of Election) Rules 1995 (for short Rules 1995) says about the procedure to be followed by the State Election Commission. It will be better to extract Rule 59 of the Rules 1995, which is relevant here.

                  “Rule 59: Report by the officer authorised by the State Election Commission as to the lodging of the account of election expenses and the decision of the State Election Commission thereon

                  (1) As soon as may be after the expiration of the time as specified in Section 86 for the lodging of the account of election expenses at any election, the District Election Officer shall report to the State Election Commission,—

                  (a) name of each contested candidate;

                  (b) whether such candidate has lodged his account of election expenses and if so, the date on which such account has been lodged; and

                  (c) whether such account has been lodged within the time limit and as required by the Act and these rules.

                  (2) Where the officer authorised by the State Election Commission is of the opinion that the account of election expenses of any candidate has not been lodged as required by the Act and these rules, he shall with the report under sub-rule (1) forward to the State Election Commission the account of election expenses of such candidate and the vouchers lodged along with it.

                  (3) A copy of the report forwarded by the District Election Officer under sub-rule (1) shall immediately be published by him in his notice board by affixing the same.

                  (4) Immediately on receipt of a report in sub-rule (1), the State Election Commission shall examine the same and decide whether any contested candidate has failed to lodge the account of election expenses within the time and in the manner required by the Act and these rules.

                  (5) Where the State Election Commission decides under sub-rule (4), that a candidate has failed to lodge the account of election expenses, he shall by notice in writing call upon the candidate to show cause why he should not be disqualified under Section 33.

                  (6) Any candidate who has been called upon to show cause under sub-rule (5) shall within twenty days of the receipt of such notice submit in respect of that matter a representation in writing to the State Election Commission, and that at the same time send to the officer authorised by the State Election Commission a copy of his representation together with a complete account of his election expenses if he had not already furnished such an account.

                  (7) The officer authorised by the State Election Commission shall, within five days of the receipt thereof, forward to the State Election Commission the copy of the representation and the account, if any, with his comments thereon.

                  (8) The State Election Commission shall, after considering the representation submitted by the candidate and the comments of the officer authorised by the State Election Commission thereon and after such enquiry as he thinks fit, take an appropriate decision.”

7. A reading of Rule 59 of the Rules 1995, it is clear that a report is to be submitted by the Authorised Officer regarding the submission of the account of the election expense to the State Election Commission. Immediately on the receipt of a report, the State Election Commission shall examine the same, and decide whether any contested candidate has failed to lodge the account of election expense within the time and in the manner required by the Act and Rules. Thereafter, the State Election Commission decides under sub-rule (4) of the Rules 1995, whether a candidate has failed to lodge the account of election expenses, after issuing a written notice calling upon the candidate to show cause why he should not be disqualified under Section 33 of the Act 1994. Any candidate who has been called upon to show cause under sub-rule (5) of Rules 1995 shall within 20 days of the receipt of such notice submit in respect of that matter a representation in writing to the State Election Commission, and that at the same time, send to the officer authorised by the State Election Commission, a copy of his representation together with a complete account of his election expenses if he had not already furnished such an account. Thereafter, as per sub-rule (8) of Rule 59 of the Rules 1995, the State Election Commission shall, after considering the representation submitted by the candidate and the comments of the officer authorised by the State Election Commission, take a decision.

8. Therefore, a reading of Rule 59 of the Rules 1995 shows  that  a  detailed  procedure  is  contemplated  before disqualification. It is not an empty formality. If the accounts are not submitted within the time prescribed by the statute, serious consequences will follow. A citizen will be disqualified from contesting an election for 5 years, a serious consequence that affects their constitutional rights. Therefore, the State Election Commission must strictly follow the procedures set out in the Act and the Rules. Dilution of the same may create serious consequences for the affected parties. A mandatory notice is necessary to the person concerned before taking a decision regarding disqualification under Section 33 of the Act 1994, and the State Election Commission should see that the notice is served and his version is considered before ordering disqualification.

9. Coming back to the facts of this case, the definite case of the petitioners in these cases is that no notice has been issued to them before the impugned disqualification orders. The Standing Counsel appearing for the State Election Commission was unable to produce any documents to show that a notice had been served on the petitioners. If that is the case, the impugned orders, as far as the petitioners are concerned, are to be set aside.

                  Therefore, these writ petitions are allowed in the following manner:

                  1. The impugned orders in these writ petitions, as far as the petitioners are concerned, alone are set aside.

                  2. I make it clear that this judgment will not stand in the way of the State Election Commission proceeding in accordance with law against the petitioners, if the Commission intends to do so.