Unnikrishnan C. v. P. Muhammed Basheer and The Kerala State Election Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941** ## **WP(C).No.25006 OF 2019(A)** ## **PETITIONER:** **UNNIKRISHNAN C AGED 61 YEARS S/O.NARAYANAN,CHALI HOUSE,MANALODI, NILAMBUR.P.O,MALAPPURAM DISTRICT.** **BY ADVS. SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.THOMAS P.KURUVILLA SRI.R.GITHESH SMT.HANI P.NAIR SRI.P.T.SHEEJISH SRI.AJAY BEN JOSE SRI.MANJUNATH MENON SRI.SACHIN JACOB AMBAT SHRI.HARIKRISHNAN S.** ## **RESPONDENTS:** **1 P.MUHAMMED BASHEER S/O.ABDULLA KOYA,POOKKUNNATH HOUSE,MAYYAMTHANI CHANDAKUNNU.P.O, MALAPPURAM DISTRICT,PIN-679342. 2 THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM,PIN-695033, REPRESENTED BY ITS SECRETARY.** **R1 BY ADV. SRI.S.MUHAMMED HANEEFF R1 BY ADV. SRI.M.H.ASIF ALI R1 BY ADV. SMT.SHAIMA VAHAB R1 BY ADV. SMT.CHINMAI AJITH R2 BY ADV. SRI.MURALI PURUSHOTHAMAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-022020, THE COURT ON 18-03-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.25006/19 2 ## **JUDGMENT** **Dated this the 18[th] day of March 2020** - 1.This writ petition is filed with the following prayer:- - “Call for the records leading to Exhibit P6 and quash the same by issue of a writ of Certiorari or such other writ, order or direction.” - 2.Heard the learned counsel for the petitioner, learned counsel for the 1[st] respondent and the learned standing counsel for the 2[nd] respondent. - 3.The learned counsel for the petitioner submits that the petitioner filed O.P.No.4 of 2019 before the 2[nd] respondent under Section 4 (1) of Kerala Local Authorities (Prohibition of Defection) Act, 1999 and Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules 2000 to disqualify the 1[st] respondent as a Councillor of Nilambur Municipality. The petitioner is the Councillor of Nilambur Municipality representing Division No.26. The 1[st] respondent contested from Division No.11 as an independent candidate and was declared elected. W.P.(C).No.25006/19 3 4. On 22-12-2018, the petitioner happened to see the 1[st] respondent participating in a meeting organised by Nilambur Local Committee of Communist Party of India (CPI), a political party. On enquiry, it was revealed that 1[st] respondent joined the political party CPI on 01-02-2016 and attracted disqualification under Section 3(1)(c) of the Act. 5. The 1[st] respondent filed Exhibit.P2 preliminary objection contending that Exhibit.P1 petition is barred by limitation and also filed Exhibit.P3 I.A. to hear the maintainability as preliminary issue to which petitioner filed Exhbit.P4 objection. Evidence was taken and the deposition of the petitioner is Exhibit.P5. However, the 2[nd] respondent by Exhibit.P6 held that Exhibit.P1 was filed beyond 30 days from the date of defection and is therefore barred by limitation, which is under challenge. - 6.The learned counsel for the petitioner relies on the decision of the Apex Court in is in **Jagjit Singh v. State of Haryana and** W.P.(C).No.25006/19 4 **others** [(2006)11 SCC 1]. It is submitted that the purpose of the enactment is to be considered and the adjudicating authority should act in a manner conducive to the furtherance of the said purpose. - 7.Counter affidavit has been placed on record by the 1[st] respondent. It is submitted therein that the averment that the 1[st] respondent had joined CPI is false and misconceived and that he is a permanent invitee to the Nilambur Mandalam Committee as the Councillor of the Muncipality and not as a nominee of the CPI. It is submitted that the very contentions of the petitioner was that the 1[st] respondent had joined the CPI on 1.2.2016 and therefore his approaching the respondent was per se belated. - 8.The learned counsel for the respondent places reliance on the decisions of the Apex Court in **State of Rajasthan v. Babu Ram** [(2007) 6 SCC 55], **B.Premanand and others v. Mohan Koikal and others** [ (2011) 4 SCC 266], **Shivram Anand Shiroor v. Radhabai Shantaram Kowshik and another** W.P.(C).No.25006/19 5 - [ AIR 1984 SC 756], **Nelson Motis v. Union of India and another** [AIR 1992 SC 1981] and judgment of this Court dated 24[th] March, 2015 in W.P.(C).No.23505/2014 and connected cases. - 9.The learned Standing Counsel for the State Election Commission submits that the decision taken was in accordance with the pleadings raised by the parties and was legal and valid. The decision of the Apex Court in **Mahachandra Prasad Singh (Dr) v. Chairman, Bihar Legislative Council [** (2004) 8 SCC 747] and **Rajendra Singh Rana v. Swami Prasad Maurya** [(2007) 4 SCC 270] and of this Court in **Vinayakumar R and others v. A.A. Raouf and another** [2015(3) KHC 787] are also relied on. - 10.I have considered the contentions advanced. The specific findings in Exhibit P6 with regard to the contentions of the petitioner is as follows:- - “15. According to the petitioner, the respondent joined in CPI on - 01.02.2016 and he came to know about the said fact only on W.P.(C).No.25006/19 6 22.12.2018 when he was found in a Kudumbasadassu organized by CPI. His further case is that he conducted an enquiry in the matter and on enquiry he found that the respondent joined CPI on 01.02.2016. It is very easy for a person to give a date in the original petition and to, say that he came. to know of the defection only on that date with a view to defeat the provision of limitation. That cannot be countenanced. The alleged act of defection was on 01 .02.2016 as per the averments in the petition. As noticed above, this kind of petition has to be filed within 30 days of the alleged disqualification of the member as per sub rule (2) of Rule 4A of the Rules. The act which the petitioner complains in this case took place on 01.02.2016 and thereafter. The petitioner cannot show an imaginary date in the petition according to his convenience. 16. From the evidence and circumstances in this case it cannot be said that the petitioner was not aware of the alleged act of joining of the respondent in CPI till 22.12.2018. It can only be an imaginary date. This original petition ought to have been filed within 30 days from 01.02.2016. But. it is seen filed till 14.01 2019 ie.; after about three years. So it cannot be; said that the above original petition is filed within the period specified in Rule 4(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules. There is no petition or request to condone the delay in this case. So the question W.P.(C).No.25006/19 7 of considering that aspect does not arise in this case.The original petition is clearly barred by limitation. It is not maintainable as it is barred by limitation. The original petition is hence only to be dismissed. “ - 11.Having considered the contentions advanced on either side and in view of the specific provisions of Section 3 of the the Kerala Local Authorities (Prohibition of Defection) Act, 1999 read with Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules,2000, I am of the opinion that the findings rendered in Exhibit P6 do not suffer from any legal infirmity. The writ petition fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.P.NO.4 OF 2019 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** **EXHIBIT P2 TRUE COPY OF COUNTER AFFIDAVIT DATED 19.03.2019 FILED BY THE 1ST RESPONDENT TO EXHIBIT P1 BEFORE THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF I.A.NO.85 OF 2019 FILED BY THE 1ST RESPONDENT BEFORE THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF OBJECTION TO EXHIBIT P3 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF DEPOSITION OF RW1 EXHIBIT P6 TRUE COPY OF THE ORDER DATED 16.08.2019 IN I.A.NO.85 OF 2019 IN O.P.NO.4 OF 2019 OF THE 2ND RESPONDENT.** True copy **PS to Judge**