USHA VIJAYAN v. STATE ELECTION COMMISSION, KERALA

THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 10TH 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 2 STATE ELECTION COMMISSION, KERALA, VIKAS BHAVAN, JANAHITHAM, NEAR LEGISLATIVE ASSEMBLY, THIRUVANANTHAPURAM, PIN - 695033 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 10th 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 1st 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 WP(C) NOS.43722 & 43792 OF 2023 5 mentioned above by the clerk, she could not appear for the cross examination on 02.11.2023 and the 1st 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 1st 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 1st 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 WP(C) NOS.43722 & 43792 OF 2023 6 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 1st respondent, I think, there is some force in the argument of the 1st 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 1st 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 1st respondent will consider the same and WP(C) NOS.43722 & 43792 OF 2023 8 pass appropriate orders in it, with notice to the petitioner and the second respondent. The 1st 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 1st 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 1st 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 1st respondent for reopening the evidence and to adduce evidence. II. If such a petition is filed, the 1st 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 2nd respondent, untrammeled by the observation in Ext.P6 produced in these writ petitions. III. In the event of allowing the above petition, the 1st respondent need to allow the petitioner alone to adduce evidence and that also on a particular date fixed by the 1st respondent and if the petitioner is not adducing evidence on that day, the 1st respondent is free to proceed with the case. Sd/- P.V.KUNHIKRISHNAN JUDGE WP(C) NOS.43722 & 43792 OF 2023 10 APPENDIX OF WP(C) 43722/2023 PETITIONER EXHIBITS EXHIBITP1 EXHIBIT P2 EXHIBIT P3 EXHIBITP4 EXHIBIT P5 EXHIBIT P6 TRUE 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 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P. NO 7/22 DATED AS JULY, 2022 TRUE COPY OF THE WITNESS SCHEDULE SUBMITTED BY THE PETITIONER IN O.P.NO 7/22 BEFORE THE 1ST RESPONDENT TRUE COPY OF THE PROOF AFFIDAVIT DATED 26.10.2023 FILED BY THE PETITIONER IN O.P NO 7/22 BEFORE THE 1ST RESPONDENT TRUE COPY OF THE APPLICATION (IA 91/2023 IN OP 7/22) DATED 5.11.2023 TRUE 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 P1 EXHIBIT P2 EXHIBIT P3 EXHIBIT P4 EXHIBIT P5 EXHIBIT P6 TRUE 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 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P. NO 3/22 DATED AS JULY, 2022 TRUE COPY OF THE WITNESS SCHEDULE SUBMITTED BY THE PETITIONER IN O.P.NO 3/22 BEFORE THE 1ST RESPONDENT TRUE COPY OF THE PROOF AFFIDAVIT DATED 26.10.2023 FILED BY THE PETITIONER IN O.P NO 3/22 BEFORE THE 1ST RESPONDENT TRUE COPY OF THE APPLICATION (IA 90/2023 IN OP 3/22) DATED 5.11.2023 TRUE 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