George Simon v. Kerala State Election Commission & Others

W.P.(C).No.20137/21 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943** ## **WP(C) NO. 20137 OF 2021** ## **PETITIONER:** GEORGE SIMON, AGED 57 YEARS BOOTH PRESIDENT OF INDIAN NATIONAL CONGRESS (I) PARTY, BOOTH NO. 4, DIVISION NO. 63, GANDHINAGAR, KOCHI , S/O. ANTONY, RESIDING AT KURISINGL HOUSE, 57/2021, GURUDEVAN ROAD, KALOOR P.O., KOCHI 682 017, ERNAKULAM DISTRICT. BY ADVS. C.S.AJITH PRAKASH T.K.DEVARAJAN PAUL C THOMAS BABU M. NIDHIN RAJ VETTIKKADAN HAARIS MOOSA ADESH JOSHI ## **RESPONDENTS:** 1 KERALA STATE ELECTION COMMISSION CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM 695 033, REPRESENTED BY ITS SECRETARY. 2 DISTRICT COLLECTOR/ DISTRICT ELECTION OFFICER, OFFICE OF THE DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD P.O., ERNAKULAM DISTRICT 682 030. W.P.(C).No.20137/21 2 3 THE ELECTORAL REGISTRATION OFFICER/ ADDITIONAL SECRETARY, COCHIN CORPORATION, OFFICE OF THE CORPORATION OF COCHIN , KOCHI 682 011. 4 THE ASSISTANT ELECTORAL REGISTRATION OFFICER, AND REVENUE OFFICER, COCHIN MUNICIPAL CORPORATION, CORPORATION OF COCHIN, 682 011. 5 THE SECRETARY, CORPORATION OF COCHIN, OFFICE OF THE CORPORATION OF COCHIN, KOCHI 682 011. BY ADVS. SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA K.JANARDHANA SHENOY ## **OTHER PRESENT:** ## C.E.UNNIKRISHNAN-SPL.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON 07.10.2021 DELIVERED THE FOLLOWING: W.P.(C).No.20137/21 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.20137 of 2021** **= = = = = = = = = = = = = = = = Dated this the 7[th] day of October, 2021** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “i.To issue a writ of mandamus or any other appropriate writ or order, or direction, directing the respondents 1 to 4 to publish a ‘draft electoral roll’ afresh, after the hearing on registration of fresh electors and the deletion and transposition allowed, upto 29.09.2021 and permit the petitioner to file objection if any on the draft electoral roll, so published pursuant to the consideration of 1305 number Form-4 application and 595 number transposition or deletion of voters; ii. To issue a writ of mandamus or any other appropriate writ or order or direction, directing the respondents 1 to 4 not to publish any final voters list on 30.09.2021 or any day thereafter, before publishing a fresh draft electoral roll, with respect to Division No.63 of Kochi Municipal Corporation and granting sufficient opportunity to file objection to the petitioner as contemplated in Rule-10 to Rule-18 of the Kerala Municipality (Registration of Electors) Rules, 1994 and also to grant sufficient time for filing appeal under Section 81 of the Kerala Municipality Act, after passing orders on the objections if any submitted; iii. To issue a writ of mandamus or any other appropriate writ or order or direction directing the 3° and 4% respondents, not to remove the name of valid voters on the basis of some compliant, without providing an opportunity of hearing to the affected party as contemplated in Sec.79 of -the Kerala Municipality Act, 1994 and proviso. to Rule-20° of the’ Kerala W.P.(C).No.20137/21 4 ## Municipality (Registration of Electors) Rules, 1994; iv. To issue a writ of mandamus or any other appropriate writ or order or direction directing the respondents 1 to 3 to grant permission to sit and watch the proceedings of the ongoing hearing conducted by the officers appointed by the 4th respondent for the purpose of revision of electoral roll on the application for registration or deletion of voters in Division No.63 of the Kochi Municipal Corporation; v. To declare that the draft voters list said to have been published on 06.09.2021 is not the real draft electoral roll as per Rule-8 of the Kerala Municipalities (Registration of Electors) Rules, 1994, in view of the subsequent opportunity given for the fresh applicants to submit Form-4 for registration of their name in the electoral roll. vi. To declare that the petitioner as well as one member of each political party is entitled to attend the hearing scheduled up to 29.09.2021 for the purpose of watching the proceedings taking place in the hearing venue for the purpose of registration of fresh voters and permit to note down the particulars of applicants attending the hearing.” 2.Heard Sri.C.S.Ajith Prakash, the learned counsel for the petitioner, Sri. C.E.Unnikrishnan, learned Special Government Pleader, Sri.Deepu Lal Mohan, learned standing counsel appearing for the Election Commission and Sri. Janardhana Shenoy, the learned standing counsel appearing for the Cochin Corporation. W.P.(C).No.20137/21 5 3.The petitioner, who claims to be a permanent resident and a voter in Division No.63 of the Kochi Municipal Corporation, is the Booth President of the Indian National Congress (I) party. It is submitted that the Councillor, who had been elected in the local body elections from Division No.63 passed away on 8.05.2021, necessitating a by-election on or before 8.11.2021. It is submitted that the 4[th] respondent has appointed and designated staff of the Corporation for preparation and revision of the electoral rolls. The online or offline registration of new voters is permitted from 7.9.2021 to 20.9.2021. Hearing of objections is scheduled to be conducted on 29.9.2021. It is contended that the persons appointed as per Exhibit P2 are persons associated with the Staff Organisation supported by the CPI(M) political party and are taking a biased attitude in the registration of new voters by including ineligible voters and excluding eligible voters. It is submitted that the petitioner has pointed out the chances of malpractices by Exhibit P3 representation before respondents 1,2 and 4 with a request to permit at least one member from W.P.(C).No.20137/21 6 each political party to have access to the hearing venue arranged for the preparation and revision of electoral rolls. 4.The learned counsel for the petitioner submits that the publication of a draft electoral roll is mandated under the Kerala Municipality (Registration of Electors) Rules, 1994 and that the petitioner is to be permitted to sit and watch the hearing for the preparation and revision of electoral rolls so as to verify if irregularities are committed by the officers. It is further contended that there are several requests for deletion and objections preferred to the same and that a proper verification will not be made by the respondents, which will lead to a situation where ineligible voters are included in the list and eligible voters will be excluded. The learned counsel would also contend that Section 81 of the Kerala Municipality Act provides a provision for appeal to the District Election Officer concerned and that the chance for submitting an appeal has been lost due to the fact that no draft voter's list has been published by the respondents in the instant case. W.P.(C).No.20137/21 7 5.A statement has been placed on record by the 1[st] respondent. It is stated that there is a bar to interference by this Court under the provisions of Article 243 ZG(b) of the Constitution of India and that the writ petition, therefore, shall not be entertained by this Court. It is contended that the attempt of the petitioner is to postpone the by-election and that the Apex Court in **A.K.M.Hassan Uzzaman v. Union of India** [(1982) 2 SCC 218], **Lakshmi Charan Sen v. A.K.M.Hassan Uzzaman and others** [AIR 1985 SC 1233], **Anugrah Narain Singh v. State of U.P.** [(1996) 6 SCC 303] has held that the Courts exercising jurisdiction under Article 226 should observe a self imposed limitation and should not interfere in matters where the effect of such interference would be the postponement of the elections, which are duly notified. The decisions of a Division Bench of this Court in **State Election Commission v. V.Krishnan** [2001 (1) KLT 285] and of a learned single Judge in **Mohammed Ali.v. State Election Commission** [2006 (3) KLT 496] are also relied on. W.P.(C).No.20137/21 8 ## 6. Further it is submitted that casual vacancies of Councillors in 32 constituencies in different local self Government institutions in Kerala have been reported to the State Election Commission and that the Commission has to fill up those vacancies within six months of occurrence of vacancies. It is submitted that before a by-election is conducted, the State Election Commission has to revise the electoral roll of the concerned ward /Division as provided under Section 78 (2) (a) (ii) of the Kerala Municipality Act. It is submitted that since casual vacancy has occurred on 8.5.2021 in Division No.63 of the Kochi Municipal Corporation, the by-elections have to be conducted on or before 8.11.2021. It is submitted that the byelections to Division No.63 of the Kochi Municipal Corporation have not been notified as yet. ## 7.It is further submitted at paragraph 10 of the statement as follows:- “10. Therefore, as per letter No. B1-48223-2021-SEC dated 02-092021, the State Election Commission has issued directions for revision of electoral rolls in the 32 constituencies wherein byeelections are to be held. The photocopy of letter No. B1-482232021-SEC dated 02-09-2021 issued by the 1[st] Respondent is W.P.(C).No.20137/21 9 produced herewith and marked a, ANNEXURE-R1(a). As per Annexure-R1(a), the Commission has notified the date of publication of draft electoral rolls in these constituencies as 06-092021 and publication of final electoral roll as 30-09-2021. However, the bye-elections to these constituencies are yet to be notified. 11. In this context, it may be noted that the inclusion and deletion of names from the electoral roll is a continuous process which has to go on elections or no elections. The only ban period is from the last date of making nomination to the completion of electoral process for an election as provided in Section 80 (3) of the Kerala Municipality Act, 1994 which provides that no amendment, transposition or deletion of any entry shall be made under Section 79 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this Section after the last date for making nominations for an election in that constituency and before the completion of that election. 8. It is further submitted that a report had been called for from the 3[rd] respondent Electoral Registration Officer and a report had been furnished by the said officer to the State Election Commission, which is produced as Exhibit R1(b). It is stated that preparation and revision of electoral roll is being carried out in strict compliance with the prescribed statutory procedure and that the averments to the contrary are baseless. It is further submitted that there is absolutely no W.P.(C).No.20137/21 10 provision for permitting political parties to attend the hearing scheduled with regard to the objections to inclusions and exclusions from the electoral roll and that the said prayer cannot be considered in the absence of any such statutory provision. It is further stated that the attempt to prolong the imminent by-elections may not be permitted. - 9.I have considered the contentions advanced on both sides. Section 78 of the Kerala Municipality Act provides for preparation and revision of electoral rolls. Sub-section (2) provides for revision by the Election Registration Officer in the prescribed manner before each by-election to fill a casual vacancy in a Council. The manner of preparation and revision of electoral rolls are prescribed under the Municipality (Registration of Electors) Rules, 1994. Rule 8 thereof provides for the Registration Officer to publish a draft electoral roll making a copy thereof available for inspection and displaying a notice in Form 3 at his office and in such places as may be specified by the State Election Commission. Rule 9 provides for further publicity of the roll and notice. Rule 10 to 20 is the W.P.(C).No.20137/21 11 procedure to be followed with regard to the objections to the roll and the consideration of the same. Thereafter, a final electoral roll shall be published under Rule 21. Rule 22 provides that an appeal shall lie from any decision of the Registration Officer under Rule 18, 19 or Rule 20 where the person filing such appeal had made representations to the Registration Officer on the matter or availed of the right to be heard in such matter. This is the provision with regard to the submission of appeals where objections are raised and not considered by the electoral officer before the draft electoral roll is finalized. 10.After finalisation of the electoral roll also, there is a further chance of appeal to objectors under Section 81 of the Kerala Municipality Act and Rules, which is governed by the provision of Rule 26 of the Municipality (Registration of Electors) Rules. It is the specific case of the learned counsel appearing for the Corporation that the procedure prescribed by the Rules is being scrupulously followed by the electoral officers in the instant case as well. It is contended that a list of applications W.P.(C).No.20137/21 12 received online and offline for both inclusion in the list as well as deletion or transposition are published in the office notice board on each day and the hearing notices are issued in due forms to the concerned voters and to the objectors in accordance with the rules. It is stated that there is absolutely no infringement of the procedure and that the further prayers raised by the petitioner are completely devoid of merits and cannot be accepted. 11.Having considered the contentions advanced and having perused the judgments of the Apex Court and of this Court in detail, which are relied on by the parties, I find that the right of the petitioner is only to insist that the due procedure in accordance with law must be followed in the matter of revision of the electoral roll before the by-elections. It is contended that the electoral roll which was in existence has been published as the draft electoral roll and that all the material is available on the web site of the Kerala State Election Commission and is also duly published as provided in the Act and the Rules. It is also contended that the list of the W.P.(C).No.20137/21 13 applications for inclusion, deletion or transposition have been duly put up on the notice board of the Corporation and notices are being issued in accordance with law. - 12.In the above factual situation, the contention of the petitioner that there was no draft electoral roll published in accordance with the provisions of the Act and the Rules cannot be accepted. In view of the statement placed on record by the 1[st] respondent, the prayers raised in this writ petition are not liable to be allowed. Needless to say that the respondents are duty bound and are enjoined by the Act and the Rules to function strictly in accordance with the provisions with regard to the revision of electoral rolls. 13. The writ petition is, therefore, disposed of with a direction to the respondents to carry out the revision of the electoral rolls specifically in accordance the provisions of Section 78 to 80 of the Act and the provisions of the Kerala Municipality (Registration of Electors) Rules, 1994. W.P.(C).No.20137/21 14 14.The further prayer of the petitioner made at the time of hearing for an opportunity to file appeals is not being considered in view of the fact that the specific objectors or voters who have a grievance against any exclusions or inclusions in the final voters list and whose objections had not been duly considered definitely have a right to appeal first under Rule 21 of the Kerala Municipality (Registration of Electors) Rules, 1994 against the orders passed while finalising the list and thereafter, under Rule 26 after finalisation of the list. In the above view of the matter, no further directions are called for in the writ petition. **==> picture [24 x 12] intentionally omitted <==** ## **Anu Sivaraman, Judge** sj W.P.(C).No.20137/21 15 ## **APPENDIX OF WP(C) 20137/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE RELEVANT PAGES OF THE ELECTORAL ROLL CONTAINING THE NAME OF THE PETITIONER IN DIVISION OL; 63 OF THE KOCHI CORPORATION. - Exhibit P2 A TRUE COPY OF THE PROCEEDINGS NO. COC/ELE/026177/21 DATED 06.09.2021 ISSUED BY THE ASSISTANT ELECTORAL REGISTRATION OFFICER AND REVENUE OFFICE OF KOCHI MUNICIPAL CORPORATION. - Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED 20.09.2021 SUBMITTED BY THE PETITIONER TO THE IST 2ND AND 4TH RESPONDENTS. - Exhibit P4 A TRUE COPY OF THE RECEIPT DATED 22.09.2021 ISSUED TO THE PETITIONER FROM THE KOCHI MUNICIPAL CORPORATION. - Exhibit P5 A TRUE COPY OF THE PROOF OF SENDING HE E MAIL FROM THE PETITIONERS E- MAIL I.D. TO THE 2ND RESPONDENT E MAIL ADDRESS. - Exhibit P6 A TRUE COPY OF THE REPRESENTATION DATED 22.09.2021 SUBMITTED TO RESPONDENTS 1 TO 4. - Exhibit P7 A TRUE COPY OF THE RECEIPT NO. 23483 DATED 23.09.2021 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. - Exhibit P8 A TRUE COPY OF THE RECEIPT NO. 23467 DATED 23.09.2021 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT. TRUE COPY PS TO JUDGE