High Court of KeralaSingle Judge2023-09-13Writ petition dismissed

Smt. Radhika M. v. Kerala State Election Commission and ABOOBACKER P.K.

Case / Petition Number:W.P.(C) No.21899/2023

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2023-09-13
Court Decision / Holding: The writ petition is dismissed; Ext.P5 is not found to be a preliminary issue that would invalidate OP 35/2022, and maintainability is considered appropriate at the evidence stage rather than at the preliminary stage.
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

SMT. RADHIKA M.

Respondents

KERALA STATE ELECTION COMMISSION
ABOOBACKER P.K.

Legal Representation & Advocates

Counsels for Petitioners

• K. Sujai Sathian
• Preethi P.V.
• M.V. Balagopal
• Gouri Meempat
• Sangeetha Sreekumar
• T. Sethumadhavan (Sr.)

Counsels for Respondents

• DeePu Lal Mohan (Standing Counsel)

Case Synopsis & Summary

The petitioner, an elected member from Ward No.16 of Kappur Grama Panchayat (General Election-2020), seeks to quash Ext.P5, an order of the Kerala State Election Commission, and to declare OP No.35/2022 as not maintainable. The petitioner contested as an independent with the ‘Autorickshaw’ symbol; Ward No.16 is reserved for Scheduled Castes and Scheduled Tribes, and the petitioner belongs to the Paraya community (a Scheduled Tribe). The 2nd respondent filed OP No.35/2022 contending that after contesting against LDF and UDF, the petitioner joined the LDF and made a Rule 3(2) declaration, allegedly violating the Kerala Local Authorities (Prohibition of Defection) Act, 1990, thereby warranting disqualification. The petitioner resisted on the ground that Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 requires filing an election petition within 30 days of deemed disqualification, and that there is no provision to condone delay; the petition (Ext.P1) was thus procedurally irregular. IA No.39/2023 sought to treat maintainability as a preliminary issue; the Election Commission dismissed it. The court discusses precedents such as Unni K.G. v. N. Abdul Rasheed (2010) and Abdul Gafoor T.P. (2015) to hold that maintainability need not be decided preliminarily and that disqualification questions should be decided after a full trial. It notes Rule 5 of the 2000 Rules requiring the Commission to conclude proceedings within 120 days and concludes that the writ petition fails. The petition is dismissed and the OP is allowed to proceed at evidence stage if appropriate.

Provisions of Law Cited

Kerala Local Authorities (Prohibition of Defection) Act, 1990 – Sections 3, 4(1)Kerala Local Authorities (Prohibition of Defection) Act, 1999Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 – Rule 4AKerala Panchayat Raj Act, 1994 – Section 35(o), 36(1), 139

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that Ext.P1 (OP 35/2022) is not maintainable as it was not filed within the 30-day period prescribed by Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, and there is no provision for condoning delay. She contends that Ext.P5 denial of preliminary maintainability is premature and that maintainability should be adjudicated at the initial stage, with the disqualification question to be decided only after a full trial. She relies on established jurisprudence requiring timely petitions and on the constitutional principle that procedural irregularities should not obstruct remedy. The petitioner seeks quashing Ext.P5 and a declaration that OP 35/2022 is not maintainable, arguing that the matter should proceed within the statutory framework rather than by a writ petition.

Contentions of Respondents

The respondents argue that OP 35/2022 was filed under Sections 3 and 4(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1990, alleging defection after contesting against LDF/UDF candidates. They contend that there is no express provision to condone delay in filing such petitions and that the maintainability issue is intertwined with evidence; Ext.P5 correctly directed that such questions be decided at the time of evidence rather than at the preliminary stage. They emphasize the 120-day statutory timeline under Rule 5 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, and the need for timely proceedings. They rely on precedents to affirm the authority of the Election Commission to adjudicate maintainability and the jurisdiction of the adjudicatory forum to decide issues, including defection, without recourse to Article 226. The respondents submit that the petition should be addressed in due order within the statutory framework and the matter should proceed to evidence stage.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Unni K.G. v. N. Abdul Rasheed and another	2010 (1) KHC 176	Positive	Cited to support that maintainability questions should not be determined solely as a preliminary issue and that disqualification matters require full trial.
Abdul Gafoor T.P. v. Kerala State Election Commission, Thiruvananthapuram and others	2015 (2) KHC 231	Positive	Cited to establish that the adjudicatory forum has the necessary power to adjudicate such issues and that frivolity or lack of merit should not prevent adjudication.
WA No.1356 of 2022	WA No.1356 of 2022	Mentioned Only	Referenced for factual timeline regarding judgment publication and its impact on the cause of action; not used as a controlling legal principle.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 13[TH] DAY OF SEPTEMBER 2023/22ND BHADRA,1945** **WP(C) NO. 21899 OF 2023** ## **PETITIONER:** **SMT.RADHIKA M., AGED 39 YEARS D/O. CHAATHU, MADAKKATTU VEEDU, KUMARANELLOOR P.O., PALAKKAD, PIN-679 552 (MEMBER, WARD NO.16, KAPPUR GRAMA PANCHAYAT)** **BY ADVS. K.SUJAI SATHIAN PREETHI. P.V. M.V.BALAGOPAL GOURI MEEMPAT SANGEETHA SREEKUMAR T.SETHUMADHAVAN (SR.)** ## **RESPONDENTS:** - **1 KERALA STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY CORPORATION OFFICE COMPOUND, LMS JUNCTION THIRUVANATHAPURAM, PIN – 695033** - **2 ABOOBACKER P.K., AGED 40 YEARS, S/O. KHADHAR, PARAYIL, KOTTAPULLY, KAPPUR P.O., PALAKKAD, PIN – 679552 (MEMBER, WARD NO.6, KAPPUR GRAMA PANCHAYAT)** **BY ADV SRI.DEEPU LAL MOHAN, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.21899/2023 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.21899 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 13[th] day of September, 2023_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who is an elected Member of Kappur Grama Panchayat, seeks to quash Ext.P5 order of the 1[st] respondent-Kerala State Election Commission and to declare that the election petition OP No.35/2022 before the 1[st] respondent is not maintainable. 2. The petitioner was elected as Member from Ward No.16 of the Kappur Grama Panchayat in the General Election-2020 held to Local Self Government Institutions, on 10.12.2020. The Ward was reserved for Scheduled Castes and Scheduled Tribes. The petitioner belongs to “Paraya” community which is a Scheduled Tribe. The petitioner contested as independent candidate with “Autorickshaw” as election symbol. W.P.(C) No.21899/2023 : 3 : 3. The 2[nd] respondent filed OP No.35/2022 alleging that after contesting the election against LDF and UDF candidates and winning, the petitioner joined LDF and gave Rule 3(2) declaration to that effect and that the action of the petitioner was against the Kerala Local Authorities (Prohibition of Defection) Act, 1999 and warrants disqualification. 4. The petitioner resisted the OP on the ground that as per Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, an election petition must be filed within 30 days of deemed disqualification. The petitioner filed an application (IA No.39/2023) for hearing the maintainability as a preliminary issue. The 1[st] respondent-Election Commission dismissed the IA as per Ext.P5 order dated 11.05.2023. 5. The petitioner would urge that Ext.P1 OP is filed in violation of the Kerala Local Authorities (Prohibition of Defection) Act and Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000. As W.P.(C) No.21899/2023 : 4 : Ext.P1 OP is procedurally irregular, the OP cannot be proceeded any further. 6. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the 1[st] respondent. 7. The 2[nd] respondent filed OP No.35 of 2022 before the 1[st] respondent-Election Commission invoking Sections 3 and 4(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1990 alleging that the 2[nd] respondent is disqualified to continue as a Member of Kappur Grama Panchayat on the ground of defection. It is alleged that the petitioner, after contesting as an Independent Candidate against a candidate of LDF, has joined the LDF Coalition. 8. The petitioner filed IA No.39 of 2023 seeking to consider the maintainability of OP No.35 of 2022 filed by the 2[nd] respondent as a preliminary issue. The argument is that the OP was not filed within 30 days from the date of deemed disqualification and there is no provision in the Act,1999 or Rules made thereunder, to condone the delay. W.P.(C) No.21899/2023 : 5 : 9. As regards delay, the 2[nd] respondent has stated in Ext.P1 OP itself that the 2[nd] respondent became aware of the decision on the subject by the High Court of Kerala only after the judgment in WA No.1356 of 2022 was published on 28.09.2022 and hence the cause of action for filing the OP runs from 28.10.2022. Considering the averments made in the OP, the 1[st] respondent in Ext.P5 order held that all these matters should be considered at the time of evidence and the question of maintainability cannot be considered as a preliminary point. 10. This Court considered the powers of the State Election Commission in the matter of consideration of questions as preliminary issue. This Court noted that in _**Unni K.G. v. N. Abdul Rasheed and another** [2010 (1) KHC 176],_ this Court has considered the provisions of Sections 35(o), 36(1) and 139 of the Kerala Panchayat Raj Act, 1994 and held that even where an issue regarding maintainability is raised, the Election Commission need not consider the issue as a preliminary one and that the question W.P.(C) No.21899/2023 : 6 : with regaed to disqualification has to be decided after a full trial. 11. In _**Abdul Gafoor T.P. v. Kerala State Election Commission, Thiruvananthapuram and others** [2015 (2) KHC 231]_ , this Court held that a particular adjudicatory forum, either acting as a court or as a quasi judicial authority, has necessary power to entertain an issue for adjudication. The alleged frivolity or lack of merit of the matter does not detain it from adjudicating the issue. Once the constitutional court comes to a conclusion that the authority has necessary power of jurisdiction to adjudicate, it cannot invoke Article 226 of the Constitution of India to interdict the said power. Any exercise of such power amounts to usurpation or abrogation of adjudicatory powers of a competent forum which is not permissible in law. 12. As per Rule 5 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, the Election Commission is statutorily bound to conclude the proceedings within 120 days positively. In the facts of the W.P.(C) No.21899/2023 : 7 : case, the refusal by the Election Commission to adjudicate the maintainability of the OP as a preliminary issue does not prejudice the petitioner in any manner. The writ petition fails for the afore reasons and consequently, the writ petition is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/31.07.2023 W.P.(C) No.21899/2023 : 8 : ## **APPENDIX OF WP(C) 21899/2023** ## **PETITIONER’S EXHIBITS** |**Exhibit P1**|**A TRUE COPY OF PETITION IN O.P 35/2022**| |---|---| ||**BEFORE THE HONORABLE STATE ELECTION**| ||**COMMISSION** **OF** **KERALA,**| ||**THIRUVANANTHAPURAM DATED 25.11.2022**| |**Exhibit P2**|**A TRUE COPY OF WRITTEN STATEMENT IN**| ||**O.P 35/2022 BEFORE THE HONORABLE STATE**| ||**ELECTION** **COMMISSION** **OF** **KERALA,**| ||**THIRUVANANTHAPURAM DATED 09.01.2023**| |**Exhibit P3**|**A TRUE COPY OF I.A 39/2023 FILED IN**| ||**O.P 35/2022 BEFORE THE HONORABLE STATE**| ||**ELECTION** **COMMISSION** **OF** **KERALA,**| ||**THIRUVANANTHAPURAM DATED 18.04.2023**| |**Exhibit P4**|**A TRUE COPY OF COUNTER AFFIDAVIT TO**| ||**I.A 39/2023 FILED IN O.P 35/2022**| ||**BEFORE THE HONORABLE STATE ELECTION**| ||**COMMISSION** **OF** **KERALA,**| ||**THIRUVANANTHAPURAM DATED 02.05.2023**| |**Exhibit P5**|**A TRUE COPY OF ORDER DATED 11/5/2023**| ||**IN I.A 39/2023 FILED IN O.P 35/2022**| ||**BEFORE THE HONORABLE STATE ELECTION**| ||**COMMISSION** **OF** **KERALA,**| ||**THIRUVANANTHAPURAM**|