Sareena K.M.P. v. Nisar L. and Kerala State Election Commission

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 24TH DAY OF JANUARY 2018 / 4TH MAGHA, 1939** **WP(C).No. 810 of 2018** ## **PETITIONER:** **SAREENA K.M.P., D/O.P.K.RAHIM MASTER, RESIDING AT P.K. HOUSE, PONKUTHI, KOLACHERY P.O., KANNUR DISTRICT - 670 601.** **BY ADVS.SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN** ## **RESPONDENTS:** **1. NISAR L., S/O. SOOPI, RESIDING AT LALILAKATH HOUSE, KAMBIL, KOLACHERY P.O., KANNUR DISTRICT - 670 601.** **2. THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM - 695 001, REPRESENTED BY ITS SECRETARY.** **R2 BY SRI.MURALI PURUSHOTHAMAN, SC, K.S.E.C.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 810 of 2018 (A)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE PETITION IN OP.41/2011 ON THE FILE OF STATE ELECTION COMMISSION,THIRUVANANTHAPURAM. EXHIBIT P2 A TRUE COPY OF THE IA NO.101 OF 2017 IN OP.41 OF 2017. EXHIBIT P3 A TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT HEREIN IN IA.101/2017 IN OP.41 OF 2017. EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 24.11.2017 IN IA NO. 101 OF 2017 IN OP.41 OF 2017 ON THE FILE OF KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM.** ## **RESPONDENT(S)' EXHIBITS** **NIL** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **A.K.JAYASANKARAN NAMBIAR, J.** **................................................................... W.P.(C).No.810 Of 2018 (A) ..................................................................... Dated this the 24[th] day of January, 2018** ## **J U D G M E N T** The petitioner in the writ petition is the respondent in O.P.No.41 of 2017 on the files of the Kerala State Election Commission, Thiruvananthapuram and the petitioner in I.A.No.101 of 2017 in the above O.P. The original petition referred above was filed by the 1[st] respondent in the writ petition under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 for a declaration that the petitioner herein had committed a defection, and therefore, she became disqualified to be a member of the Kolachery Grama Panchayat and also to contest the election to any local body for a period of six years. In the writ petition, the petitioner is aggrieved by Ext.P4 order of the State Election Commissioner, which dismissed Ext.P2 application preferred by the petitioner and left open the question of maintainability to be decided after taking evidence in the case. It is this preliminary order of the Election Commission that is impugned by the petitioner. 2 **W.P.(C).No.810 Of 2018 (A)** 2. The main ground of challenge in the writ petition is to be found in Ground E, which reads as follows: “E. As per Clause 2 of Section 3(2) of the Local Authorities (Provision of Defection Act) says that the direction in writing issued for the purpose of clause A and B of Section (1) shall be given to the members concerned in the manner as may be prescribed and copy of such direction in writing shall be given to the Secretary of the Local Self Government Institutions concerned. Ext.P1 O.P there is no averments or assertion to the effect that the alleged direction of writing issued to the petitioner for the purpose of Clause A and B of Sub Section (1) is given to the Secretary of the Panchayat. The said section is incorporated for the purpose that the written direction to the members has been duly served and acknowledged and the same also is furnished to the Secretary to evidentiate that they complied the mandatory act of serving of the written direction of the authorised agent. In the case on hand as stated above the respondent herein has no case that they had complied with the procedure laid down in Sub Section 2 of Section 3 ## **W.P.(C).No.810 Of 2018 (A)** 3 of the Act. Hence by going through the provisions of the Act it can be seen that the said clause is a mandatory one and the non compliance of Section 3(2) is fatal to the proceedings of O.P and therefore the State Commission ought to have dismissed Ext.P1 O.P filed by the respondent herein on the ground that it is not compliance with the provisions of the Kerala Local Authorities (Provision of Defection). 3. I have heard the learned counsel appearing for the petitioner and also the learned Standing counsel appearing for the Election Commission. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that before the Election Commission, the issue of maintainability was raised on two grounds namely, (i) That the affidavit filed along with the original petition was not a proper one. (ii) That the document produced by the petitioner along with the original petition to show the party affiliation of the respondent was a 4 **W.P.(C).No.810 Of 2018 (A)** manipulated document. The Election Commission considered the said contention and in respect of the 1[st] issue regarding the filing of affidavit in a proper form found that as per Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, or in the Rules framed thereunder, there was no requirement that an affidavit should be filed along with the petition. It was found that there was in fact a verified petition and a proper verification clause in the original petition where the petitioner therein had clearly indicated that what was stated in the original petition was true at the best of his knowledge. The petitioner in the original petition was also found to have sworn to an affidavit affirming the facts stated in the original petition. The Election Commissioner found this to be sufficient compliance with the requirement of the Act and Rules. As regards the 2[nd] issue with regard to the alleged fabrication of the document by the original petitioner, it was found that the document produced along with the original petition showed the party affiliation of the respondents and the issue as to whether it was a manipulated document or not was one that could be decided only after taking evidence, and therefore, could not be decided as 5 ## **W.P.(C).No.810 Of 2018 (A)** a preliminary issue. 5. On a perusal of Ext.P4 preliminary order passed by the State Election Commission, I do not find any jurisdictional error or any other error apparent on the face of the order, which would vitiate it for the purposes of interference in these proceedings under Article 226 of the Constitution of India. The finding of the State Election Commissioner also finds support in the decision of this Court in **Ramaswamy v. Kamaraj Ponnuswamy [2010 (1) KLT 255],** where, in the context of adopting a procedure for filing an original petition, it was held as follows: “7. The power of the Commission under S.4 of the Act is to decide on the question as to disqualification on the ground of defection. Sub-s. (2) of S.4 requires that the Commission shall decide such issue after making such enquiry as it deems necessary. That provision also gives statutory finality to the decision of the Commission. The prescription in S.5(1) that the provisions of C.P.C. as may be applicable for trial of suit would apply for the disposal of the petition filed under S.4(1) and the enumeration in 6 ## **W.P.(C).No.810 Of 2018 (A)** S.5(2), of the different powers from among those contained in C.P.C., which the Commission may use for the purpose of the trial of the petition, affirm that the Act does not say that C.P.C. Will mutatis mutandis apply. The conduct of enquiry 'as it may deem necessary' and the application of the C.P.C. for the disposal gives a fair room to follow the procedural system within the format of C.P.C., however, not being tied down to the strict rules as may be available in C.P.C. 8. Reverting to the Civil Rules of Practice, it needs to be noted that they are specifically provided for institution of matters before the Civil Courts. Those rules of practice are issued by the High Court of Kerala in exercise of its power under S.122 of the C.P.C. and other enabling powers, including those under the Kerala Court Fees and Suits Valuation Act, 1959. Those rules do not get incorporated into the Code of Civil Procedure. The prescription that C.P.C. is applicable for trial and disposal of matters before the Election Commission does not bring the Civil Rules of Practice applicable, with all its rigour, to the proceedings before the Election Commission, through a relevant and guiding beacon could be borrowed. This approach would only give effect to 7 ## **W.P.(C).No.810 Of 2018 (A)** the provisions of the Act in terms of the objects sought to be achieved by that legislation. The evil of political defection is a matter of national concern. If not combated, it would undermine the very foundations of our democracy and the principles which sustain it. This led to the 52[nd] Amendment to the Constitution incorporating the Tenth Schedule. The provisions in the Act also proceed to the same goal.” 6. In the writ petition, as already noted, the petitioner raises a fresh contention with regard to the procedure that had to be followed by the original petitioner while instituting a petition against the writ petitioner. A reference is made to the provisions of Section 3 (2) of the Kerala Local Authorities (Prohibition of Defection) Act, which requires that the direction in writing issued for the purposes of Clause A and B of Sub Section (1) shall be given to the members concerned in the manner prescribed and a copy of such direction in writing shall be given to the Secretary of the Local Self Government Institution concerned. It is the case of the writ petitioner herein that in the Original petition filed before the State Election Commissioner, there was no averment or assertion to the effect that the alleged direction in writing was 8 ## **W.P.(C).No.810 Of 2018 (A)** given to the Secretary of the Panchayat. The petitioner cites the non-compliance with the above provisions as a ground that would render the original petition filed by the respondents before the State Election Commissioner not maintainable. I find, however, that on this aspect also the petitioner would have to lead evidence to indicate that the procedure itself had not been complied and the State Election Commissioner would be able to consider the issue only after evaluating the evidence that is adduced before him. At any rate, this could not have been an issue that could have been decided as a preliminary issue by the Election Commissioner. I therefore, see no reason to interfere with Ext.P4 order, which only defers a decision on the issue of maintainability. The writ petition, in its challenge against Ext.P4, fails, and is accordingly dismissed. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/24.01.18 9 **W.P.(C).No.810 Of 2018 (A)**