IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 RP.No. 1077 of 2009(M) ---------------------- AGAINST THE JUDGEMENT IN WPC.9156/2008 Dated 01/09/2008 .................... REVIEW PETITIONER(S): REVIEW PETITIONER/PETITIONER IN WPC. ---------------------------------------------------------- P.BERNAD, S/O. PATHROSE, AGED 45 ARAMPALLI THOTTARIKATHU VEEDU, HOUSE NO.A.P.VIII/ 357,(OLD NO.787) CHULLIMANOOR P.O., NEDUMANGAD THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENT(S): --------------- 1. P.MANI,S/O.PATHROSE, JAYA MATHA BHAVAN HOUSE NO. PP VI/473,KAZHAKUNNU, CHULLIMANOOR P.O NEDUMANGAD, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R2 SRI.GOPAKUMAR R.THALIYAL FOR R1 SRI.N.P.PRAJEESH FOR R1 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 08/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ANTONY DOMINIC, J. ------------------------- R.P.No.1077 of 2009 in W.P.(C.) No.9156 of 2008 (M) --------------------------------- Dated, this the 8th day of June, 2010 O R D E R Heard learned counsel for the petitioner, learned counsel appearing for the 1st respondent and also learned standing counsel appearing for the 2nd respondent. 2. WP(C) No.9156/2008 was filed by the petitioner herein challenging Ext.P3 proceedings of the 2nd respondent rejecting an application made by him seeking to disqualify the 1st respondent. When the writ petition came up for orders before this Court, on behalf of the Election Commission it was reported that the 1st respondent had tendered his resignation and that the same was accepted. It was also stated that he raised a dispute that the resignation was under compulsion and coercion; and the said application was also rejected by the Election Commission as time barred. Taking note of these developments, on the ground that nothing further survived in the writ petition to be considered on R.P.1077/2009 in WP(C) No.9156/2008 -2- merits, the writ petition was closed by judgment dated 01/09/2008. 3. It would now appear that subsequently against the proceedings of the Election Commission rejecting the application made by the 1st respondent challenging the order accepting his resignation, a writ petition was filed by him and that this Court by judgment dated 25/11/2008 disposed of the writ petition directing reconsideration of the matter. Accordingly, the matter was reconsidered and the Election Commission by its order dated 28/03/2009 restored the membership of the 1st respondent. The Panchayat challenged the order passed by the 2nd respondent, in WP (C) No.10387/2009. This Court by judgment dated 21/05/2009 dismissed the writ petition and that judgment is reported in Anad Grama Panchayat v. Kerala State Election Commission (2009(2) KLT 874). 4. It is thereafter that the petitioner has filed this review petition contending that in view of subsequent developments noticed above, the judgment should be reviewed and that he should be given an opportunity to contest the case on merits. He has also explained the delay in approaching this Court mainly stating that he R.P.1077/2009 in WP(C) No.9156/2008 -3- was unaware of the proceedings resulting the order of the Election Commission and the judgment of this Court restoring membership of the 1st respondent. 5. Counter affidavit has been filed by the 1st respondent wherein this assertion made by the Review Petitioner has been denied. It is stated that the petitioner had filed Annexure R1 impleading petition seeking impleadment in the proceeding before the Election Commission and that the said application was rejected. On this basis, the plea that the Review Petitioner was ignorant of the proceedings is disputed. 6. Although from the counter affidavit filed by the 1st respondent it would appear that the assertion of the petitioner that he was unaware of the proceedings before the Election Commission does not appear to be fully justified, the Election Commission’s proceedings restoring membership of the 1st respondent attained finality only with the dismissal of the writ petition filed by the Panchayat by judgment dated 21/05/2009. This review petition was filed on 20/08/2009 and therefore, at best there is a delay of three months, which is not an inordinate delay requiring rejection of R.P.1077/2009 in WP(C) No.9156/2008 -4- the request of the petitioner on the ground of delay. 7. Facts show that in view of the developments subsequent to the filing of the writ petition, resulting the resignation of the 1st respondent, the petitioner was denied an opportunity to contest the case on merits. In view of the still subsequent developments, I feel, it is only appropriate that he should be given an opportunity to argue the case on merits recalling the judgment in the writ petition. Having regard to the above, I feel, the review petition deserves to be allowed. Accordingly, R.P.No.1077/2009 is allowed. Judgment dated 01/09/2008 in WP(C) No.9156/2008 is recalled. Post the writ petition for hearing afresh. Sd/- (ANTONY DOMINIC, JUDGE) jg //TRUE COPY// PA TO JUDGE.