Sindhu Anilkumar vs Election Commission Represented By Its Secretary

Anu Sivaraman, J

This writ petition is filed with the following prayers:-

”(i)Issue a writ in the nature of certiorari or such other direction calling for the records leading upto Exhibit P7 passed by the 1st respondent and quash the same.

(ii)Declare that the O.P.No.14/2021 filed by the respondents herein before the State Election Commission, Thiruvananthapuram is non-maintainable in law and on facts.”

Heard the learned counsel for the petitioner, the learned standing counsel appearing for the Kerala State Election Commission and the learned counsel appearing for the 2nd  respondent.

It is submitted that the petitioner was elected as an independent candidate from Ward No.1 of the Pavaratti Grama Panchayat. The 2nd respondent is the elected member from Ward No.7. It is contended that the petitioner had filed her nomination as an independent candidate with the support of the Indian National Congress (INC for short) and had also sworn to an affidavit after the election that she is an independent member sharing the coalition with the INC. It is submitted that O.P.No.14/2021 had been filed by the 2nd respondent alleging that the petitioner is disqualified under Section 3(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, since she had voted against the written instructions issued by the INC in the election and had contested as President candidate with the support of LDF. The petitioner had submitted Exhibit P5 objections and had raised a preliminary objection with regard to the maintainability of the original petition. However, Exhibit P7 order was passed stating that the question whether the petitioner become subject to disqualification as provided under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act is a mixed question of fact and law and could be adjudicated only after taking evidence and conducting a full trial of the case. On these contentions, the preliminary objection was declined, which is under challenge in this writ petition.

The learned counsel for the petitioner submits that this Court in Santhosh George v. P.S.Mathai and Another [2006 KHC 1017] had held that the maintainability of an election petition has to be considered as a preliminary issue and if the defect pointed out is so patent and can be decided without any enquiry, the Court should consider the same as a preliminary issue. The learned counsel for the petitioner contends that the issue raised by the petitioner as a preliminary issue, as is evident from Exhibit P5, is not what is perceived by the Commission in Exhibit P7 and therefore the order is bad in law.

The learned counsel for the respondent, on the other hand, contends that the decision relied on by the petitioner is specifically with regard to the maintainability of an election petition and that the provisions are drastically different in the present case, where what was being considered by the Commission was an original petition under the Kerala Local Authorities (Prohibition of Defection) Act and as per the provisions under the Kerala Local Authorities (Disqualification of Defected Members) Rules. It is submitted that the question whether a disqualification has occurred is itself a mixed question of fact and law and it can be decided only after taking evidence. It is submitted that the said position is evident from the decisions of this Court in Unni K.G. v. N.Abdul Rasheed and Another [2010 (1) KHC 176] and Abdul Gafoor T.P. v. Kerala State Election Commission, Thiruvananthapuram and others [2015(2) KHC 231]. It is contended that since the objection raised by the petitioner had been considered and the State Election Commission had arrived at the conclusion that the preliminary objection raised by the petitioner cannot be properly adjudicated unless evidence is taken there is absolutely no prejudice caused to the petitioner and that the order is in accordance with law.

I have considered the contentions advanced. The allegation in the original petition is specifically that the petitioner was an independent candidate supported by the INC and that she had contested the presidential candidate against the official candidate of the coalition to which the INC belonged. It is also alleged that ignoring the specific directions issued by the INC she had abstained from voting in the election to the post of Vice President of the Panchayat. This Court in Unni KG's case (supra) has considered the provisions of Section 35(o), Section 36(1) and Section 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 with regard to disqualification has to be decided after a full trial.

In Abdul Gafoor's case (supra) also, it was held that once a particular adjudicatory forum, either acting as a court or as a quasi judicial authority, has a 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. It was further held that once the constitutional court comes to a conclusion that the authority has the necessary power or jurisdiction to adjudicate, it cannot invoke Article 226 of the Constitution of India to interdict the said power of the Tribunal or the Commission. Any exercise of such power amounts to usurpation or abrogation of adjudicatory powers of a competent forum which is impermissible in law.

Having considered the contentions advanced on either side and in view of the fact that the writ petitioner does not dispute the fact that he had submitted a nomination for election as member of the Panchayat specifically pointing out that he is an independent candidate supported by the INC and that he had submitted affidavits after the election aligning himself with the UDF, I am of the opinion that the contentions raised by the petitioner are not sustainable. Since the Election Commission has the power to adjudicate on the question of disqualification, the refusal to adjudicate the maintainability as a preliminary issue does not prejudice the petitioner.

The writ petition, therefore, fails and the same is accordingly dismissed.