Usha Vijayan v. State Election Commission, Kerala (WP(C) Nos. 43722 & 43792 of 2023)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 ``` ## **`WP(C) NO. 43792 OF 2023`** ## **`PETITIONER(S):`** ``` USHA VIJAYAN, AGED 51 YEARS, D/O PADMANABHAN, ADICHUMKAL VEEDU, KOOVAPPALLI P.O, IDUKKI, PIN - 685590 ``` ``` BY ADVS. ``` ``` V.K.SUNIL ``` ``` P.RAVINDRA BABU ``` ``` K.SEENA ``` ## **`RESPONDENT(S):`** - **`1 STATE ELECTION COMMISSION, KERALA, VIKAS BHAVAN, JANAHITHAM,NEAR LEGISLATIVE ASSEMBLY THIRUVANANTHAPURAM, PIN - 695033`** - **`2 ANGALEENA,`** ``` AGED 38 YEARS, W/O SIJO,MEMBER, WARD NO.2,KUDAYATHOOR GRAMA PANCHAYATH, IDUKKI DISTRICT, NOW RESIDING AT 2/4,KANJAAR, KUDAYATHOOR,IDUKKI DISTRICT, PIN - 685590 ``` ``` BY ADV SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, ALONG WITH WP(C).43722/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOS.43722 & 43792 OF 2023 ``` 2 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 WP(C) NO. 43722 OF 2023 ``` ## **`PETITIONER(S):`** ``` USHA VIJAYAN, AGED 51 YEARS, D/O PADMANABHAN, ADICHUMKAL VEEDU, KOOVAPPALLI P.O, IDUKKI, PIN - 685590 ``` ``` BY ADVS. V.K.SUNIL K.SEENA P.RAVINDRA BABU ``` ## **`RESPONDENT( S ) :`** - **`1 STATE ELECTION COMMISSION, KERALA, VIKAS BHAVAN, JANAHITHAM, NEAR LEGISLATIVE ASSEMBLY, THIRUVANANTHAPURAM, PIN - 695033`** - **`2 PROF.M.J.JACOB, AGED 65 YEARS S/O JOSEPH, PRESIDENT, KERALA CONGRESS, IDUKKI DISTRICT COMMITTEE, RESIDING AT MUNDANCKAL HOUSE, KUDAYATHOOR.P.O, IDUKKI, PIN - 685590`** ``` BY ADV SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION, KERALA ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, ALONG WITH WP(C).43792/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NOS.43722 & 43792 OF 2023 ``` 3 **P.V.KUNHIKRISHNAN, J. -----------------------------------------------W.P.(C)Nos.43722 & 43792 of 2023 -----------------------------------------------Dated this the 10[th ] day of January, 2024** ## **JUDGMENT** These two writ petitions are connected and therefore, I am disposing of these two writ petitions by a common judgment. 2. The petitioners in these writ petitions are the respondents in O.P. Nos.3/2022 & 7/2022 on the file of the Kerala State Election Commission. These petitions were filed by the 2nd respondents in these cases for disqualification of the petitioner as a member of the Panchayath. 3. The petitioner is an elected member and the president of Kudayathoor Grama Panchayath. Exhibit P1 petition was filed before the 1[st] respondent to ``` WP(C) NOS.43722 & 43792 OF 2023 ``` 4 disqualify the petitioner under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act. 4. The allegation is that the petitioner was elected to the Panchayath as a candidate of the Kerala Congress (M) Joseph fraction and she violated the written instruction issued by that party’s authorized officer in a no confidence motion moved against her by that party and its coalition partners. The petitioner’s contention was that the Kerala Congress (M) Joseph was not a registered party and hence Section 3(1)(a) of the Act is not applicable. It is submitted that the case was posted on 02.11.2023 for the evidence of the petitioner. However, it is submitted that the clerk attached to the office of the petitioner’s advocate erroneously taken down the posting date as 07.11.2023. The petitioner had already filed her chief affidavit and also a witness schedule, is the submission. But, due to the mistake 5 ``` WP(C) NOS.43722 & 43792 OF 2023 ``` mentioned above by the clerk, she could not appear for the cross examination on 02.11.2023 and the 1[st] respondent closed the evidence of the petitioner even without taking any action on Ext.P3 witness schedule filed by the petitioner. Hence, the petitioner filed Ext.P5 application to reopen the evidence, but it was also dismissed by Ext.P6 order. Aggrieved by Ext.P6 order, these writ petitions are filed. 5. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the 1[st] respondent. 6. The learned counsel appearing for the petitioner reiterated the contentions raised by the petitioner in this writ petition. The learned Standing Counsel appearing for the 1[st] respondent seriously opposed these writ petitions. The learned Standing Counsel submitted that, in the light of paragraph 41 of the Judgment of the Apex Court in **Kihota Hollohon** 6 ``` WP(C) NOS.43722 & 43792 OF 2023 ``` **v. Zachillhu and others [1992 KHC 694]** , these writ petitions itself are not maintainable. Moreover, the Standing Counsel takes me through the order and submitted that altogether 11 postings were given to the petitioner to adduce evidence and when the case was posted on 02.11.2023, the petitioner was absent. Therefore, the case was posted for hearing. Moreover, the Standing Counsel also submitted that, this Court while disposing WP(C) No.8421/2023 filed by the respondent observed that the Election Commission is statutorily bound to complete the proceedings expeditiously and positively within 120 days. It is submitted that when the statute restrict the period within which a dispute is to be resolved, it will be open to the Election Commission to decide how the complaint is to be proceeded with. Hence, it is submitted that, the intention of the petitioner is only to drag the matter. ``` WP(C) NOS.43722 & 43792 OF 2023 ``` 7 7. After hearing the learned counsel for the petitioner and the learned Standing Counsel appearing for the 1[st] respondent, I think, there is some force in the argument of the 1[st] respondent. I see no reason to interfere with the reasoning in Ext.P6. But, it is a fact that the petitioner is the respondent in the Election Petition, in which the prayer is to disqualify her under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act. The petitioner submitted that there is a mistake on the part of her advocate clerk in noting the date of the posting of the case and therefore, she was not able to appear before the court on 02.11.2023. 8. If that be the case, I am of the considered opinion that the 1[st] respondent can reconsider the matter, if a fresh application is filed with an affidavit of the advocate clerk concerned. If such an application is filed, the 1[st] respondent will consider the same and ``` WP(C) NOS.43722 & 43792 OF 2023 ``` **==> picture [7 x 10] intentionally omitted <==** pass appropriate orders in it, with notice to the petitioner and the second respondent. The 1[st] respondent should keep in mind that it is a case in which the petitioner is the respondent and the Election Petition is filed to disqualify her and she want only an opportunity to adduce evidence. But, I make it clear that if the first respondent allow the petition, the 1[st] respondent can fix a date for adducing evidence by the petitioner alone and if the petitioner is not adducing the evidence on that day, the 1[st] respondent can proceed with the case. Therefore, these writ petitions are disposed of with the following directions; I. The petitioner is free to file a fresh petition in O.P. No.3/2022 and O.P. No.7/2022 before the 1[st] respondent for reopening the evidence and to adduce evidence. II. If such a petition is filed, the 1[st] respondent ``` WP(C) NOS.43722 & 43792 OF 2023 ``` 9 will consider the same and pass appropriate orders in it after giving an opportunity of hearing to the petitioner and the 2[nd] respondent, untrammeled by the observation in Ext.P6 produced in these writ petitions. III. In the event of allowing the above petition, the 1[st] respondent need to allow the petitioner alone to adduce evidence and that also on a particular date fixed by the 1[st] respondent and if the petitioner is not adducing evidence on that day, the 1[st] respondent is free to proceed with the case. nvj Sd/- **P.V.KUNHIKRISHNAN JUDGE** ``` WP(C) NOS.43722 & 43792 OF 2023 ``` 10 ## **`APPENDIX OF WP(C) 43722/2023`** ``` PETITIONER EXHIBITS ``` ``` EXHIBITP1TRUE COPY AND LEGIBLE TYPED COPY OF THE PETITION DATED 20.4.22 (O.P NO 7/22) SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT EXHIBIT P2TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P. NO 7/22 DATED AS JULY, 2022 EXHIBIT P3TRUE COPY OF THE WITNESS SCHEDULE SUBMITTED BY THE PETITIONER IN O.P.NO 7/22 BEFORE THE 1ST RESPONDENT EXHIBITP4TRUE COPY OF THE PROOF AFFIDAVIT DATED 26.10.2023 FILED BY THE PETITIONER IN O.P NO 7/22 BEFORE THE 1ST RESPONDENT EXHIBIT P5TRUE COPY OF THE APPLICATION (IA 91/2023 IN OP 7/22) DATED 5.11.2023 EXHIBIT P6TRUE COPY OF THE ORDER DATED 14.11.23 IN I.A NO 91/23 IN O.P NO 7/22 OF THE 1ST RESPONDENT ``` ``` WP(C) NOS.43722 & 43792 OF 2023 ``` 11 ## **`APPENDIX OF WP(C) 43792/2023`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT P1TRUE COPY AND TYPED LEGIBLE COPY OF THE PETITION (O.P 3/22) DATED 19.2.22 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT EXHIBIT P2TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P. NO 3/22 DATED AS JULY, 2022 EXHIBIT P3TRUE COPY OF THE WITNESS SCHEDULE SUBMITTED BY THE PETITIONER IN O.P.NO 3/22 BEFORE THE 1ST RESPONDENT EXHIBIT P4TRUE COPY OF THE PROOF AFFIDAVIT DATED 26.10.2023 FILED BY THE PETITIONER IN O.P NO 3/22 BEFORE THE 1ST RESPONDENT EXHIBIT P5TRUE COPY OF THE APPLICATION (IA 90/2023 IN OP 3/22) DATED 5.11.2023 EXHIBIT P6TRUE COPY OF THE ORDER DATED 14.11.23 IN I.A NO 90/23 IN O.P NO 3/22 OF THE 1ST RESPONDENT ``` RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE