IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 WP(C).No. 5082 of 2009(E) ------------------------------ PETITIONER: -------------- A.V. GOPINATHAN NAIR, MEMBER, WARD No.6, KOZUVANAL GRAMA PANCHAYATH, KOZUVANAL P.O., KOTTAYAM DISTRICT. BY MR.SUNIL CYRIAC, ADVOCATE. RESPONDENTS: ----------------- 1. THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. GEORGE JOSEPH, MEMBER, WARD No.9, KOZUVANAL GRAMA PANCHAYATH, RESIDING AT: NARIMATTATHIL, MEVIDA P.O., KOTTAYAM DISTRICT. BY MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/02/2009, ALONG WITH W.P.(C) No.5083/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J. -------------------------------------------- W.P.(C)Nos. 5082 & 5083 OF 2009 --------------------------------------------- Dated this the 16th day of February, 2009 JUDGMENT These writ petitions are filed by the respondents in petitions seeking to declare that they are disqualified from holding the post of member of the Kozhuvanal Grama Panchayat, pending before the State Election Commission, seeking a direction to the Election Commission to decide the maintainability of the petitions as a preliminary point in O.P.Nos.143/08 and 148/08. 2. The contention of the petitioners is that since under Section 36(3) of the Kerala Panchayat Raj Act, the Election Commission has to decide petitions before it in accordance with the procedure applicable under the Code of Civil Procedure, the Commission ought to have decided the maintainability of the petition as a preliminary issue. 3. I am of opinion that the Election Commission should not adjudicate petitions before it on piecemeal basis. The issue of maintainability can also be considered and decided by the Election Commission while passing final orders. Even under the W.P.(c)No.5082/09 & Con.case 2 Code of Civil Procedure there is no inviolable Rule that whenever a party seeks consideration of an issue as a preliminary issue the Court should mandatorily decide the issue before taking evidence. It depends on the facts and circumstances of each case and also on the question as to whether for deciding the preliminary issue also evidence is necessary. Petitions before the Commission are to be decided expeditiously by the very nature of the petitions. If preliminary issues are to be decided separately, matter would be prolonged unnecessarily. The petitioners herein would not be prejudiced in any way by deciding the issue of maintainability also in the final order. They can challenge the decision on maintainability also while challenging the final order. In the above circumstances, I am not inclined to entertain these writ petitions. Accordingly the writ petitions are dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.5082/09 & Con.case 3