Udayakumar v. State of Kerala and Others (Thrikkakkara Bye-Election)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944 WP(C) NO. 15849 OF 2022`** ## **`PETITIONER`** ``` UDAYAKUMAR AGED 50 YEARS S/O. GOPINATHAN NAIR, ARIPPURATH HOUSE, EDAPPALLY NORTH P.O., ERNAKULAM DISTRICT-682 024 BY ADVS. P.K.VARGHESE P.S.ANISHAD K.R.ARUN KRISHNAN R.ROHITH M.T.SAMEER REGHU SREEDHARAN K.S.ARUN KUMAR ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REP BY CHIEF SECRETARY TO GOVERNMENT , GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001`** - **`2 KERALA STATE ELECTION COMMISSION, REPRESENTED BY STATE ELECTION COMMISSIONER, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM,PIN-695 033`** - **`3 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, FIRST FLOOR OF CIVIL STATION, KUNNUMPURAM , KAKKANAD, ERNAKULAM DISTRICT-682 304`** - **`4 THE ELECTORAL REGISTRATION OFFICER FOR THE BYE ELECTION OF THRIKKAKARA LEGISLATIVE ASSEMBLY CONSTITUENCY AND THAHSILDAR, KANAYANNUR THALUK, ERNAKULAM DISTRICT-682 011`** ``` WP(C) NO. 15849 OF 2022 ``` ``` 2 ``` ``` BY ADVS. ASOK M.CHERIAN SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA SHRI.DEEPU LAL MOHAN, SC, ELECTION COMMISSION OF INDIA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 15849 OF 2022 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 23[rd] day of May, 2022 The petitioner, who is a resident of Thrikkakkara Legislative Assembly Constituency in Ernakulam, is before this Court seeking to command the 4[th] respondent-Electroal Registration Officer to conduct an enquiry as contemplated under Section 22 of the Representation of the People Act, 1950 (hereinafter referred to as the ‘Act,1950’), as to the entitlement of voters pointed out in Exts.P3 to P5 to remain in the electoral roll for the bye-election scheduled to be conducted to Thrikkakkara Legislative Assembly Constituency in a time bound manner. The petitioner also seeks to command the 4[th] respondent to consider Ext.P2 in a time bound manner and take a decision thereon before finalising the final electoral roll for the bye-election scheduled. ``` WP(C) NO. 15849 OF 2022 ``` ``` 4 ``` 2. The petitioner states that the bye-election to Thrikkakkara Legislative Assembly Constituency is scheduled to be held on 31.05.2022. A large number of ineligible voters are included in the voters list. The petitioner is aggrieved by the unauthorised and illegal inclusion of ineligible voters in the list. 3. The petitioner would point out that the voters list as on 01.01.2022 is the voters list/electoral roll for the byeelection in Thrikkakkara Legislative Assembly. The Commission has to publish a voters list based on the list prevailing as on 01.01.2022. When the petitioner noticed that a large number of ineligible voters are included, petitioner submitted Ext.P2 complaint to the 4[th] respondent invoking Section 22 of the Act, 1950. The petitioner also submitted separate lists of ineligible voters included in the final list. The 4[th] respondent has a duty to consider the complaint filed by the petitioner. It is in the said circumstances that the petitioner is ``` WP(C) NO. 15849 OF 2022 ``` ``` 5 ``` before this Court. 4. The learned counsel for the petitioner pointed out that through Exts.P3, P4 and P5, the petitioner had specifically named the ineligible voters. According to the petitioner, more than 700 ineligible voters are included in the voters list. The election notification was published on 04.05.2022. The petitioner had made the complaint on the next day itself, on 05.05.2022. 5. The learned counsel for the petitioner urged that the Election Commission has power to revise the electoral roll at any point of time. Section 21(3) of the Act, 1950, enables the Election Commission to correct the voters list, for reasons to be recorded. Therefore, the respondents are compellable to revise the voters list, urged the learned counsel for the petitioner. 6. The learned Standing Counsel representing the 4[th] respondent opposed the writ petition. The Standing Counsel ``` WP(C) NO. 15849 OF 2022 ``` ``` 6 ``` submitted that there is a Constitutional bar on any litigation against the Election Process in view of Article 329(b) of the Constitution of India. Under Section 23(3) of the Act, 1950, the final voters list published by the Election Commission will stand freezed and no alteration can be done to the voters list. Therefore, the complaints, if any, preferred by the petitioner cannot in any manner affect the present process of election. 7. The learned Standing Counsel relied on the judgment of the Hon’ble Apex Court in _**Narendra Madivalapa Kheni v. Manikrao Patil and others [AIR 1977 SC 2171]**_ to urge that after the last date, no corrections can be made to the final voters list. The learned Standing Counsel further pointed out that the polling process has already commenced and the service voters have already started casting their votes. Therefore, it is too late for the petitioner to seek any remedy in this regard. ``` WP(C) NO. 15849 OF 2022 ``` ``` 7 ``` 8. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the 4[th] respondent. 9. In _**Lakshmi Charan sen v.A.K.M Hassan Uzman and Others (AIR 1985 SC 1233]**_ , the Constitution Bench of the Hon’ble Apex Court held that the High Courts must observe a self-imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will result in an indefinite postponement of elections to legislative bodies, which are very essence of the democratic foundation and functioning of our Constitution. That limitation ought to be observed irrespective of the fact whether the preparation and publication of electoral rolls are part of the process of ‘election’ within the meaning of Article 329(b) of the Constitution. 10. In the present case, the election notification was published on 04.05.2022. The election process has therefore already commenced. In view of the consistent stand taken by the Hon’ble Apex Court in the matter of interference in election matters under Article 226 of the Constitution of India, this Court cannot intervene in the election process commenced by notification dated 04.05.2022. For the said reason, no relief can be granted in this writ petition. However, the petitioner will be at liberty to prosecute his complaint regarding inclusion of ineligible voters in the voters list, in accordance with law. The writ petition is dismissed with the said observations. sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) NO. 15849 OF 2022 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 15849/2022`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1 ``` ``` Exhibit P2 ``` ``` A TRUE COPY OF THE PRESS NOTE PUBLISHED IN THE WEBSITE OF ELECTION COMMISSION OF INDIA DATED 02.05.2022 ``` ``` A TRUE COPY OF THE COMPLAINT DATED 05.05.2022 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT ``` ``` Exhibit P3A TRUE COPY OF THE LIST OF VOTERS DIED IN THRIKKAKARA CONSTITUENCY PREPARED AND SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT ALONG WITH EXHIBIT P2 Exhibit P4A TRUE COPY OF THE LIST OF VOTERS WHO CHANGED THE PLACE OF RESIDENCE FROM THE THRIKKAKARA ASSEMBLY CONSTITUENCY PREPARED AND SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT ALONG WITH EXHIBIT P2 Exhibit P5A TRUE COPY OF THE LIST OF VOTERS WHO WENT FORM THE NATIVE PLACE (THRIKKAKARA CONSTITUENCY) PREPARED AND SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT ALONG WITH EXHIBIT P2 ```