Sunny Poulose and Bini Sunny v. Kerala State Election Commission and Others; Siby Joseph v. Kerala State Election Commission and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942** ## **WP(C).No.16869 OF 2020(G)** ## **PETITIONER/S:** - **1 SUNNY POULOSE, AGED 55 YEARS, S/O.POULOSE, KALAPPURACKAL HOUSE, MUNDANMUDI P.O., KALLIPPARA, VANNAPURAM, IDUKKI - 685 607.** - **2 BINI SUNNY, W/O.SUNNY POULOSE, KALAPPURACKAL HOUSE, MUNDANMUDI P.O., KALLIPPARA, VANNAPURAM, IDUKKI - 685 607.** ## **BY ADV. SRI.A.RAJASIMHAN** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE COMPLEX, LMS JUNCTION, THIRUVANANTHAPURAM - 695033.** - **2 APPELLATE OFFICER OF ELECTION REGISTRATION, DEPUTY DIRECTOR OF PANCHAYAT, THODUPUZHA P.O., IDUKKI - 685 584.** - **3 ELECTION REGISTRATION OFFICER, G-22, PANCHAYAT OFFICE, VANNAPURAM, IDUKKI - 685 607.** - **4 VIDHYADARAN, PLATHOTTATHIL VEEDU, MUNDANMUDI P.O., KALLIPPARA, VANNAPURAM, IDUKKI - 685 607.** - **5 REMANAN DHAMODHARAN, KARUKAPPILLIL, BLATHIKAVALA, MUNDANMUDI P.O., VANNAPURAM, IDUKKI - 685 607.** - **6 VINOD, S/O.GOPALAPILLA, KOTTAKKUPURATH, KALLIPARA, MUNDANMUDI P.O., KALLIPPARA, VANNAPURAM,** - **IDUKKI- 685 607.** - **7 SUNIL SASI, THANNIMOOTTIL, PULIKKATHOTTI P.O., VELLELLU, VANNAPURAM, IDUKKI - 685 607.** ## **ADDL.R8 VANNAPURAM GRAMA PANCHAYATH, VANNAPURAM,** **DUKKI-685 607, REPRESENTED BY ITS SECRETARY.** **(IS IMPEADED AS PER ORDER DATED 13-10-20 IN IA 1/20)** **R4 BY ADV. SRI.JOHN JOSEPH(ROY) R5-7 BY ADV. SRI.LIJI.J.VADAKEDOM R5-7 BY ADV. SRI.RAJEEV JYOTHISH GEORGE R8 BY SRI.K.C.JOSEPH KADALIYIL, SC, VANNAPPURAM GRAMA PANCHAYAT** **BY SRI.MURALI PURUSHOTHAMAN, SC, KSEC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.11.2020, ALONG WITH WP(C).18519/2020(L), THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942** ## **WP(C).No.18519 OF 2020(L)** ## **PETITIONER/S:** **SIBY JOSEPH, AGED 40 YEARS, S/O.JOSEPH CHACKO, KAYYANIYIL HOUSE, VANNAPPURAM GRAMA PANCHAYAT, PULIKKATHOTTY P.O, IDUKKI-685 602.** **BY ADV. SRI.GIGIMON ISSAC** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTION COMMISSION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.** - **2 DEPUTY DIRECTOR OF PANCHAYAT, IDUKKI-685 603.** - **3 THE SECRETARY, VANNAPPURAM GRAMA PANCHAYAT, IDUKKI-685 582.** - **4 SUNNY POULOSE, AGED 52 YEARS, S/O.POULOSE, HOUSE NO.4/54A, KALAPPURACKAL HOUSE, KODUVELI P.O, KODIKULAM, IDUKKI-685 581.** - **R1 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMISSION R3 BY SRI.K.C.JOSEPH KADALIYIL, SC, VANNAPPURAM GRAMA PANCHAYAT R4 BY ADV.SRI.A.RAJASIMHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.11.2020, ALONG WITH WP(C).16869/2020(G), THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:** ## =================================== W.P.(C).Nos.16869/2020 & 18519/2020 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ ## J U D G M E N T Dated this the 18[th] day of November, 2020 The writ petition, W.P.(C).No.16869/2020 was filed by Sunny Poulose and his wife Bini Sunny challenging the decision of the Electoral Registration Officer in excluding their names from the electoral roll of the Vannapuram Grama Panchayat. That order was appealed before the Deputy Director of Panchayat, who is an Appellate Authority under the law. That appeal was also dismissed. This order is also under challenge in this writ petition. The writ petitioners herein are referred to by their names. 2. W.P.(C).No.18519/2020 was filed by one Siby Joseph seeking consideration of a complaint raised against Sunny Poulose before the State Election Commission. That complaint was moved to remove the name of Sunny Poulose from the electoral roll of Vannapuram Grama Panchayat. The decision W.P.(C).Nos.16869/2020 & 18519/2020 -:2:- in this case would depend upon the outcome of the decision in W.P.(C).No.16869/2020. 3. Sunny Poulose is the Vice President of Vannapuram Grama Panchayat. It appears that he has been elected to the Grama Panchayat on several occasions. 4. One of the requisites to qualify for contesting in a Panchayat Election is that the name of such a contestant shall appear in the electoral roll of any constituency in the Panchayat {See Section 29(a) of the Kerala Panchayat Raj Act, 1994 ('KPR Act' for short)}. Section 18 of KPR Act bars registration in the electoral roll for more than one constituency. Section 16 of KPR Act contemplates publication of electoral roll of each constituency. Section 20 stipulates conditions for registration in the electoral roll. One of the requisites is that the person should be ordinarily resident in a constituency. 5. Siby Joseph, the petitioner in W.P. (C).No.18519/2020 and certain others approached the authorities complaining that Sunny Poulose and his Wife Bini Sunny are not ordinarily residents of the Vannapuram Grama W.P.(C).Nos.16869/2020 & 18519/2020 -:3:- Panchayat. The Electoral Registration Officer, after conducting an inquiry, found that Sunny Poulose and Bini Sunny are not ordinarily residents. Following are the reasons: a. The building situated within the Vannapuram Grama Panchayat, claimed to be the residence of Sunny and his wife is having only 16 sq.mts. b. The above building is a single room. There is no kitchen, toilet, electricity, water facility etc. The inquiry reveals that Sunny Poulose and Bini Sunny are residing permanently in Kodikulam Grama Panchayat in a building owned by Sunny's wife, Bini Sunny. They produced documents like driving licence, aadhaar card, pan card, ration card, licence etc. to prove that they are ordinarily residents of Vannapuram Grama Panchayat. Sunny Poulose also produced a rent deed of a building within Vannapuram Grama Panchayat. According to Sunny Poulose and Bini Sunny, they were staying in the rented house from 10/10/2019 onwards. The rent deed was not relied upon by the Electoral Registration Officer on the ground that the stamp paper in W.P.(C).Nos.16869/2020 & 18519/2020 -:4:- which the rent deed was executed was procured only on 29/1/2020. 6. The production of public documents itself would not prove that a person is an ordinarily resident within the Panchayat. The building owned by Sunny Poulose within the Panchayat was found unfit for human occupation. Ext.P19 produced in W.P.(C).No.16869/2020 by Sunny Poulose itself would show that he is a resident of Kodikulam Grama Panchayat. 'Ordinarily resident' is defined under Section 21 of KPR Act as follows: 1. A person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein. 2. A person absenting himself temporarily from his place of ordinary residence shall not by reason thereof cease to be ordinarily resident therein. 3. A member of Parliament or of the State Legislature or President or Vice-President of a Panchayat at any level shall not during the term of his office cease to be ordinarily resident in the constituency, in the electoral roll of which he is registered as an elector, at the time of his election as such member, or President or Vice President by reason only of his absence from that constituency in connection with his duties as such member or President or Vice-President, as the case may be. 4. A person who is a patient in any establishment maintained wholly or mainly for the reception and treatment of persons suffering from mental illness or mental defectiveness, or who is detained in prison or other legal custody at any place, shall not by reason thereof only be deemed to be ordinarily resident therein. 5. If in any case a question arises as to whether a person is ordinarily resident at a place at any relevant time, the question shall be determined by the Election Commission with reference to all the facts of the case and to such rules as may be made in this behalf. W.P.(C).Nos.16869/2020 & 18519/2020 -:5:- 7. The Apex Court in **Election Commission of India and Another v. Dr.Manmohan Singh and Others [(2000) 1 SCC 591]** adverted to the meaning of 'ordinarily resident' and at para.9 held as follows: “i) That the ordinary resident in a constituency as mentioned in the Representation of the People Act, 1950 shall mean a habitual resident of that place or a resident as a matter of fact in regular, normal or usual course. It means an usual and normal resident of that place. The residence must be permanent in character and not temporary or casual. It must be as above for a considerable time, he must have the intention to dwell permanently. He must have a settled abode at that place for a considerable length of time for which a reasonable man will accept him as the resident of that state.” 8. The meaning of the ordinarily resident shows that the person must be habitually residing in a place and the residence must have a permanent character. The building within Vannapuram Grama Panchayat was found without any facilities for the purpose of residence. Admittedly, Bini Sunny is a teacher. So also it is submitted that they own a car. The evidence clearly shows that there is no road to reach the building within the Vannapuram Grama Panchayat. Confronted with this evidence, Sunny Poulose attempted to W.P.(C).Nos.16869/2020 & 18519/2020 ## -:6:- mislead everyone by producing a rent deed. Absolutely there is no evidence to show that the couple were residing in the building referred in the rent deed. On the other hand, the evidence clearly shows that they are residing in Kodikulam Grama Panchayat. 9. Sunny Poulose and Bini Sunny availed appellate remedy. They were unsuccessful. The decision of the authorities was based on appraisal of the evidence. This Court cannot find any infirmity with the finding of facts. If a decision was taken based on material facts and relevant facts, this Court cannot interfere with such a decision. Pending writ petition, W.P.(C).No.16869/2020, Sunny Poulose and Bini Sunny were given an opportunity to register their names in the forthcoming elections. That was considered by the Electoral Registrar Officer of the Vannapuram Grama Panchayat. Again their request were rejected stating that they are not ordinarily residents. With liberty to challenge the subsequent order, W.P. (C).No.16869/2020 is dismissed. In the light of the dismissal of W.P.(C).No.16869/2020, no directions are W.P.(C).Nos.16869/2020 & 18519/2020 -:7:- required in W.P.(C).No.18519/2020. Accordingly, W.P. (C).No.18519/2020 is also dismissed. No costs. **Sd/-** ms **A.MUHAMED MUSTAQUE** **JUDGE** ## **APPENDIX OF WP(C)NO.16869/2020** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE DATED 8/6/2020 ISSUED TO THE 1ST PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 11/6/2020 ISSUED TO THE 1ST PETITIONER BY THE 3RD RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 11/6/2020 ISSUED TO THE 1ST PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 11/6/2020 ISSUED TO THE 1ST PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE NOTICE DATED 11/6/2020 ISSUED TO THE 1ST PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE NOTICE DATED 8/6/2020 ISSUED TO THE 2ND PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 11/6/2020 ISSUED TO THE 2ND PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE NOTICE DATED 11/6/2020 ISSUED TO THE 2ND PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P9 TRUE COPY OF THE REPLY DATED 12/6/2020 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF THE REPLY DATED 12/6/2020 SUBMITTED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P11 TRUE COPY OF THE LIST DATED 16/6/2020 PUBLISHED BY THE 3RD RESPONDENT. EXHIBIT P12 TRUE COPY OF THE ORDER DATED 16/6/2020 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P13 ORIGINAL OF THE POSTAL ENVELOP ISSUED TO THE 1ST PETITIONER. EXHIBIT P14 TRUE COPY OF THE APPEAL (EXCLUDING ANNEXURES) SUBMITTED BY THE 1ST PETITIONER DATED 1/7/2020.** - **EXHIBIT P15 TRUE COPY OF THE APPEAL (EXCLUDING ANNEXURES) SUBMITTED BY THE 2ND PETITIONER DATED 1/7/2020.** - **EXHIBIT P16 TRUE COPY OF THE ORDER DATED 25/7/2020 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P17 ORIGINAL OF THE POSTAL ENVELOP ISSUED TO THE 1ST PETITIONER.** - **EXHIBIT P18 ORIGINAL OF THE POSTAL ENVELOP ISSUED TO THE 2ND PETITIONER.** - **EXHIBIT P19 TRUE COPY OF THE CERTIFICATE DATED 18/5/2020 ISSUED BY THE SECRETARY OF VANNAPURAM GRAMA PANCHAYAT.** - **EXHIBIT P20 TRUE COPY OF THE DETAILS OF PROPERTY TAX ASSESSMENT REGARDING THE PETITIONERS PROPERTY** - **EXHIBIT P21 TRUE COPY OF THE RELEVANT PAGES OF THE LETTER DATED 08.10.2020 OF SECRETARY, KODIKULAM GRAMA PANCHAYAT TO THE ELECTORAL REGISTRATION OFFICER, THODUPUZHA** - **EXHIBIT P22 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, VANNAPURAM DATED 04.09.2020 ADDRESS TO THE DISTRICT COLLECTOR, IDUKKI** - **EXHIBIT P23 PHOTOGRAPHS OF THE PETITIONERS HOUSE.** - **EXHIBIT P24 TRUE COPY OF THE ORDER NO.B3-1552/2020 DATED 9.11.2020 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P25 TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, KODIKULAM DATED 9.11.2020** - **EXHIBIT P26 TRUE COPY OF THE ORDER OF THE ELECTORAL REGISTRATION OFFICER, THODUPUZHA DATED 30.10.2020.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R4 A TRUE COPY OF THE CURRENT PHOTO OF THE SHED NO.5/207(2/206) OF VANNAPURAM GRAMA PANCHAYATH** **EXHIBIT R4 B TRUE COPY OF THE ELEVATION OF THE RESIDENTIAL BUILDING OF THE PETITIONERS UNDER NO.4/54-A OF KODUKULAM GRAMA PANCHAYATH.** **EXHIBIT R4 C TRUE COPY OF THE PROCEEDING OF THE KERALA STATE ELECTION COMMISSION DATED 13.08.2020. EXHIBIT R4D TRUE COPY OF THE ORDER NO.C4/7767/2020 DATED 06/11/2020 OF THE IDUKKI DISTRICT OPANCHAYATH DEPUTY DIRECTOR/ APPELLATE AUTHORITY.** ## **APPENDIX OF WP(C)NO.18519/2020** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE LAWYER NOTICE DATED 22-05-2020 SENT TO RESPONDENTS 3 AND 4.** **EXHIBIT P2 TRUE COPY OF A/D CARD EVIDENCING PRESENT ADDRESS PROOF OF R4.** - **EXHIBIT P3 TRUE COPY OF THE REPORT OF THE SECRETARY, GRAMA PANCHAYAT, VANNAPPURAM DATED 12-06-2020** - **EXHIBIT P4 TRUE COPY OF THE VOTERS LIST 2020 OF 05 KALLIPPARA CONSTITUENCY** - **EXHIBIT P5 TRUE COPY OF THE PETITION NO. A2-250/2020 SUBMITTED BEFORE THE ELECTION COMMISSION DATED 29-06-2020.** - **EXHIBIT P6 TRUE COPY OF THE ORDER OF DEPUTY DIRECTOR OF PANCHAYAT DATED 25-07-2020.** - **EXHIBIT P7 TRUE COPY OF THE INTERLOCUTORY APPLICATION (NOT NUMBERED) SUBMITTED BEFORE THE ELECTION COMMISSION DATED 20-08-2020.** **EXHIBIT P8 TRUE COPY OF THE ORDER PASSED BY THE ELECTION COMMISSION, KERALA IN PETITION NO. A2-250/2020 DATED 24-08-2020.** ## **RESPONDENTS EXHIBITS:NIL.** **//TRUE COPY//** **P.S.TO JUDGE**