Smt.Radhika M vs Kerala State Election Commission

N. Nagaresh, J

The petitioner, who is an elected Member of Kappur Grama Panchayat, seeks to quash Ext.P5 order of the 1st respondent-Kerala State Election Commission and to declare that the election petition OP No.35/2022 before the 1st respondent is not maintainable.

The petitioner was elected as Member from Ward No.16 of the Kappur Grama Panchayat in the General Election-2020 held to Local Self Government Institutions, on 10.12.2020. The Ward was reserved for Scheduled Castes and Scheduled Tribes. The petitioner belongs to “Paraya” community which is a Scheduled Tribe. The petitioner contested as independent candidate with “Autorickshaw” as election symbol.

The 2nd respondent filed OP No.35/2022 alleging that after contesting the election against LDF and UDF candidates and winning, the petitioner joined LDF and gave Rule 3(2) declaration to that effect and that the action of the petitioner was against the Kerala Local Authorities (Prohibition of Defection) Act, 1999 and warrants disqualification.

The petitioner resisted the OP on the ground that as per Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, an election petition must be filed within 30 days of deemed disqualification. The petitioner filed an application (IA No.39/2023) for hearing the maintainability as a preliminary issue. The 1st respondent-Election Commission dismissed the IA as per Ext.P5 order dated 11.05.2023.

The petitioner would urge that Ext.P1 OP is filed in violation of the Kerala Local Authorities (Prohibition of Defection) Act and Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000. As Ext.P1 OP is procedurally irregular, the OP cannot be proceeded any further.

I have heard the learned counsel for the petitioner and the learned Standing Counsel for the 1st respondent.

The 2nd respondent filed OP No.35 of 2022 before the 1st respondent-Election Commission invoking Sections 3 and 4(1) of the Kerala Local Authorities (Prohibition of Defection) Act, 1990 alleging that the 2nd respondent is disqualified to continue as a Member of Kappur Grama Panchayat on the ground of defection. It is alleged that the petitioner, after contesting as an Independent Candidate against a candidate of LDF, has joined the LDF Coalition.

The petitioner filed IA No.39 of 2023 seeking to consider the maintainability of OP No.35 of 2022 filed by the 2nd respondent as a preliminary issue. The argument is that the OP was not filed within 30 days from the date of deemed disqualification and there is no provision in the Act,1999 or Rules made thereunder, to condone the delay.

As regards delay, the 2nd respondent has stated in Ext.P1 OP itself that the 2nd respondent became aware of the decision on the subject by the High Court of Kerala only after the judgment in WA No.1356 of 2022 was published on 28.09.2022 and hence the cause of action for filing the OP runs from 28.10.2022. Considering the averments made in the OP, the 1st respondent in Ext.P5 order held that all these matters should be considered at the time of evidence and the question of maintainability cannot be considered as a preliminary point.

This Court considered the powers of the State Election Commission in the matter of consideration of questions as preliminary issue. This Court noted that in Unni K.G. v. N. Abdul Rasheed and another [2010 (1) KHC 176], this Court has considered the provisions of Sections 35(o), 36(1) and 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 regaed to disqualification has to be decided after a full trial.

In Abdul Gafoor T.P. v. Kerala State Election Commission, Thiruvananthapuram and others [2015 (2) KHC 231], this Court held that a particular adjudicatory forum, either acting as a court or as a quasi judicial authority, has 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. Once the constitutional court comes to a conclusion that the authority has necessary power of jurisdiction to adjudicate, it cannot invoke Article 226 of the Constitution of India to interdict the said power. Any exercise of such power amounts to usurpation or abrogation of adjudicatory powers of a competent forum which is not permissible in law.

As per Rule 5 of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, the Election Commission is statutorily bound to conclude the proceedings within 120 days positively. In the facts of the case, the refusal by the Election Commission to adjudicate the maintainability of the OP as a preliminary issue does not prejudice the petitioner in any manner.

The writ petition fails for the afore reasons and consequently, the writ petition is dismissed.