Sabu Joseph v. Kerala State Election Commission and Mini Savio

## ' **CR'** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 28TH DAY OF FEBRUARY 2020 / 9TH PHALGUNA, 1941 ## WA.No.371 OF 2020 AGAINST THE JUDGMENT IN WP(C) 8834/2019(D) OF HIGH COURT OF KERALA DATED 28.01.2020 ## APPELLANT/PETITIONER: SABU JOSEPH, S/O. JOSEPH, PLATHOTTATHIL HOUSE, THIDANADU P.O, KOTTAYAM 686 123. BY ADV. SRI.M.FATHAHUDEEN ## RESPONDENTS/RESPONDENTS: - 1 KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, STATE ELECTION COMMISSION OFFICE, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM 695 033 - 2 MINI SAVIO, W/O. SAVIO, THENGUMMOOTTIL, THIDANADU P.O, KOTTAYAM DISTRICT PIN 686 123, MEMBER WARD NO. 13, TIDANADU GRAMA PANCHAYAT R1 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM. ## R2- SRI.JUSTINE JACOB THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A. No. 371 of 2020 : 2 : ## **'CR'** ## **Dated this the 28[th] day of February, 2020.** ## **JUDGMENT** ## **SHAJI P. CHALY, J** Appellant, the petitioner in W.P.(C) No. 8834 of 2019, challenges the judgment of the learned single Judge dated 28.01.2020, upholding the decision of the Kerala State Election Commission condoning the delay of 8 days in filing a petition in terms of proviso to Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 ('Rules, 2000' for short). 2. Brief material facts for the disposal of the writ appeal are as follows: Appellant and second respondent, one Mini Savio, were elected as the members of the Thidanadu Grama Panchayat in the General Election of the Local Bodies held in November, 2015, as the official candidates of the Kerala Congress (M), which is a constituent of United Democratic Front, (UDF). Being a majority political front, it formed the Panchayat Committee and the second respondent was W.A. No. 371 of 2020 : 3 : elected as the President. Second respondent has filed a petition before the Kerala State Election Commission as per the provisions of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 ('Act, 1999' for short) and the Rules above specified that a No Confidence Motion was moved against the President and Vice President which was tabled for discussion on 15.05.2018 and the Kerala Congres (M) party decided to abstain from attending the meeting. The District President of the Kerala Congress (M) had issued whip to all the elected members of the party, including the appellant, directing them to abstain from attending the meeting on 15.05.2018 and from voting in the 'No Confidence Motion'. However, the appellant disobeyed and participated in the election. Thus, according to the second respondent the appellant has committed defection inviting disqualification as provided under Section 3(1)(a) of Act, 1999. 3. As per the provisions of Rules, 2000, an application is to be filed within 30 days as it stood amended as per G.O. (P) No. 136/2014 dated 23.07.2014. Fact remains, the original petition was filed only on 22.06.2018 along with W.A. No. 371 of 2020 : 4 : I.A. No. 87 of 2018 to condone the delay of 8 days in filing the Original Petition. Second respondent in the application for condonation of delay has submitted that since he fell ill due to the extreme body pain and high fever, he could not file the application within the period prescribed under law and he has produced certificate issued from the Primary Health Centre, Thidanad dated 14.06.2018 advising rest for a week. It is also submitted that thereafter, she had to proceed to Bombay for a personal matter and she reached Trivandrum only on 21.05.2018. In the application for condonation of delay, petitioner as well as the Doctor were examined as PWs 1 and 2 and after assimilating the fact situations and the evidence adduced, State Election Commission has condoned the delay holding that the delay of 8 days is sufficiently explained by the second respondent. It was thus, challenging the order of the Election Commission, writ petition was filed. 4. Learned single Judge, after taking into account the rival submissions and materials on record, has concluded that there is no illegality or arbitrariness in the order passed by the State Election Commission, justifying W.A. No. 371 of 2020 : 5 : interference in a proceedings under Article 226 of the Constitution of India. 5. The contentions put forth by the appellant is that the explanation offered by the second respondent for condonation of delay was false, which is quite evident and clear from the contradictions in the deposition of PW2, the doctor. It is also pointed out that the second respondent sworn in before the Commission that she went to the Public Health Centre on 14.06.2018, took out patient ticket, met the doctor and secured treatment, and thereafter Ext.P2 medical certificate was obtained. However, the doctor has deposed that the doctor was on casual leave on 14.06.2018 and the second respondent went to his house on that day and she was treated at his residence. It is also submitted that the medical certificate was issued from the house of the doctor. Therefore, the sum and substance of the contention advanced is that the contention put forth by the second respondent that she has availed the medical treatment from the Primary Health Centre through PW2 is a wrong statement and therefore, she has filed the delay condonation petition incorporating false statements, which W.A. No. 371 of 2020 : 6 : should not have been entertained by the Election Commission and ought to have dismissed the same. 6. On the other hand, learned counsel appearing for the second respondent submitted that the delay was sufficiently and satisfactorily explained in the application, and it was taking into account the factual and legal situations, the delay was condoned. 7. We have appreciated the rival submissions made across the Bar and perused the pleadings and documents on record. In our considered opinion, if the delay is properly and satisfactorily explained, every litigant is entitled to get the lis adjudicated on its merit and in accordance with law. We are also persuaded to think that in a democratic polity, rule of law has a vital and significant existence. The citizens of this country are entitled, as of right, to resolve any disputes through appropriately constituted legal fora like courts of law, Tribunals, statutory and other authorities. Basically and fundamentally, that is a right protected under Articles 14 and 21 of the Constitution of India. Therefore, normally all the disputes put forth by a citizen is to be adjudicated by such fora in contemplation of W.A. No. 371 of 2020 : 7 : law and on its merit. However, law of limitation is prescribed, thus, reasonably circumscribing such a right in order to have a time period for putting an end to the litigation. Such a course is adopted to settle the disputes taking into account the social objective of providing peace and harmony in the community and society at large. In absentia of adjudicating the lis through legal fora, the result would be utter chaos, unrest and imbalance in the society, which may lead to a situation, whereby the litigants may take law into their hands and settle scores at their whims and fancies and might and power. It was bearing in mind such adverse situations, the concept of judicial and quasi judicial functionaries are envisioned and constituted. It is also with the intention of considering a lis on its merit that the power is conferred on the statutory authorities to condone the delay, if the delay is satisfactorily and sufficiently explained. Thus, as far as possible and if sufficient cause is shown in a delay petition, the normal rule would be to condone the same and adjudicate the issues providing opportunity to the parties, thus, satisfying the requirements of law avoiding arbitrariness. To put it W.A. No. 371 of 2020 : 8 : otherwise, if sufficient, reasonable and satisfactory reasons are assigned to condone the delay, it need to be accepted. So much so, the system of adjudicating a lis on its merit is a well recognised concept accepted by the people and therefore, it is better that the lis is considered on its merit subject to condonation of delay on sufficient cause shown. It is also well settled that the statute of limitation is founded on public policy, its aim being to suppress fraud and perjury, and for speedy and early disposal of the lis by and between the parties, after taking into account the material evidence on record, and thus to avoid erosion of evidence, complex and complicated situations. 8. It would be fruitful to refer to some of the judgments of the Apex Court in this regard. In **Collector, Land Acquisition, Anantnag and another v. Katiji and** **others** [(1987) 2 SCC 107], it was held by the Apex Court in paragraph 3 as follows: “The legislature has conferred the power to condone delay by enacting Section 5 (Any appeal or any application, other than an application under any of the provisions of Order XXI of the CPC, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient W.A. No. 371 of 2020 : 9 : cause for not preferring the appeal or making the application within such period) of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. W.A. No. 371 of 2020 : 10 : 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grate status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.” ## 9. In **M/s. Dehri Rohtas Light Railway** ## **Company Ltd. v. District Board, Bhojpur and others** [(1992) 2 SCC 598], at paragraph 13, it is held as follows: W.A. No. 371 of 2020 : 11 : 1. “The rule which says that the Court may not inquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Trilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay.” ## 10. In **Basawaraj v. Special Land Acquisition** **Officer** [(2013) 14 SCC 81], it is held in paragraph 15 as W.A. No. 371 of 2020 : 12 : follows: “15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of _bona fide_ on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.” ## 11. Taking into account the facts and circumstances in the case on hand and bearing in mind the principles of law discussed above, we are of the considered opinion that the delay was sufficiently explained by the second respondent to the satisfaction of the statutory authority as per the provisions of Rules, 2000. It is clear from the findings rendered by the State Election Commission as well W.A. No. 371 of 2020 : 13 : as the learned single Judge that the evidence tendered by the doctor--PW2 was found to be trustworthy, and also relied upon the medical certificate, to come to the conclusion that the delay was entitled to be condoned. Therefore, we are of the considered opinion that the appellant has not made out any case of legal infirmity, justifying interference in the judgment of the learned single Judge in an intra-court appeal under Section 5 of the Kerala High Court Act. Resultantly, writ appeal fails, accordingly it is dismissed. sd/- **S. MANIKUMAR, CHIEF JUSTICE.** sd/- **SHAJI P. CHALY, JUDGE.** Rv : 14 : W.A. No. 371 of 2020 ## **APPENDIX** ## APPELLANT'S ANNEXURES: ANNEXURE1 TRUE COPY OF THE INTERIM ORDER DATED 26-032019 OF THIS HON'BLE COURT IN W.P(C) NO. 8834/2019 RESPONDENTS' ANNEXURES: NIL /True Copy/ rv PS to Judge.