IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 14TH JANUARY 2010 / 24TH POUSHA 1931 WP(C).No. 1334 of 2010(N) ------------------------- PETITIONER(S): --------------- CHERIAN P.LOB,MEMBER,WARD NO.XI, NATTAKOM GRAMA PANCHAYAT,PUTHENPURACKAL HOUSE, KAKKOOR KARA,NATTAKOM.P.O,KOTTAYAM. BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT(S): --------------- 1. KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 2. SARAMMA THOMAS,MEMBER,WARD NO.XVII, NATTAKOM GRAMA PANCHAYAT,VIZHAZHAPARAMBIL HOUSE, CHINGAVANAM,NATTAKOM VILLAGE,KOTTAYAM. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 SC FOR R2 SRI.M. SREEKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/01/2010 A/W.WP(c).No.1334/2010 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) Nos.1334, 1335,1336,1337, 1338 & 1339/2010 ------------------------------------------------------- Dated this the 14th day of January, 2010 J U D G M E N T Sri. Murali Purushothaman takes notice for R1. Sri M. Sreekumar takes notice for R2. 2. The issue raised in these writ petitions being common, these cases were heard and are disposed of by this common judgment. 3. For convenience, facts in WP(c).No.1334/2010 are referred. 4. Challenge in these writ petitions is against Ext.P6, a common order passed by the first respondent in I.A.Nos.46, 47,48,49,50 and 51/2009 in O.P.Nos.56,57,58,59,60,61/2009 respectively. By this order, allowing the interlocutory applications filed by the 2nd respondent in the cases, challenging the maintainability of the Original Petitions filed by the petitioner in these cases, the Original Petitions have been dismissed as not maintainable. 5. Briefly stated the facts are that, the petitioner herein is a member of the Nattakam Grama Panchayat elected from ward WPC.No. 1334/09& Ors. :2 : No.11, having contested the election as a candidate of Indian National Congress. After the election was over, Sri. Nattakam Suresh was elected as the President of the Panchayat. He also belongs to Indian National Congress. 6. Subsequently, the petitioner along with another member belonging to the Congress party viz Sri. V.P. Shaji, moved a No Confidence Motion against the President of the Panchayat. The motion was discussed in the Panchayat Committee meeting held on 14.8.2009, when the petitioner and Shaji supported and voted in favour of the No Confidence Motion. However, six other members belonging to Congress Party including Sri. Nattakam Suresh, who are impleaded this batch of writ petitions as 2nd respondent, abstained from voting. Accordingly, the motion was carried and Sri. Nattakam Suresh was voted out. 7. Thereafter Sri. Nattakam Suresh approached the first respondent by filing O.P.Nos.53 and 54/09 against the petitioner and Sri. V.P. Shaji respectively under Section 4 of the Kerala Local Authorities(Prohibition of Defection) Act, praying for an order disqualifying them. Ext.P1 is the copy of OP.No.53/09. Petitioner and Sri. V.P. Shaji filed their objections and the proceedings are WPC.No. 1334/09& Ors. :3 : pending. During the pendency of the proceedings petitioner filed O.P.Nos.56,57,58,59,60 and 61/09 contending that by abstaining from voting, the 2nd respondent in this writ petition and 5 others who abstained from voting are also liable to be disqualified. Copy of these petitions are Ext.P3 in these writ petitions. Subsequently interlocutory applications were filed, praying for joint trial of the cases along with O.P.Nos.53 and 54/09 and it is accepted by both sides that joint trial was allowed. 8. While so the respondent in OP.Nos.56 to 61 of 2009, who are impleaded as 2nd respondent in these cases, filed I.A.Nos.46, 47,48,49,50 and 51/2009 contending that the O.P.Nos. 56 to 61.09 filed by the petitioner are not maintainable and should be dismissed on that ground. Petitioner filed his objections to the I.As. The matter was heard and common order was passed allowing the I.As and dismissing the petitions, a copy of which is Ext.P6 in this writ petition. It is challenging this order of the Ist respondent that these writ petitions are filed. 9. The reasoning of the first respondent to allow the interlocutory applications challenging the maintainability of the petitions is contained in paragraph 4 of the order, which reads as WPC.No. 1334/09& Ors. :4 : under. “I have heard the counsel for the IA petitioners and the respondent Sri. Cherian P. Lob and perused the connected records. It is an admitted fact that the petitioners and the respondent were elected to the Panchayat as official candidates of the Congress. It is also revealed from the records that Sri. Nattakom Suresh, the petitioner in I.A.No.46/09 was elected President of the Panchayat as the official nominee of the Congress, a constituent of the UDF. Sri. Cherian. P. Lob himself has admitted that all the members of the UDF including himself and Sri. V.P. Shaji voted for Sri. Nattakom Suresh when he contested for the post of the President in October, 2005 soon after the General Elections to the Panchayat. Sri. Cherian P.Lob himself has admitted that he had moved a no confidence motion along with Sri. V.P.Shaji against Sri. Nattakom Suresh, his own colleague in the Congress. The case of Sri. Cherian P. Lob is that the petitioners in the IA have violated the whip from the Congress Parliamentary Party and the direction from the DCC. But the respondent in the IA does not admit that there is a whip. In paragraph 7 of O.P.No.56/09, he states “ the respondent in cross defiance of the whip if any issued by the Parliamentary party purposefully abstained from voting against the no confidence motion on 14.8.2009.” This shows that he is not ready to admit that there is a whip. This is intentional. Had he admitted the existence of the whip it would have defeated his case in the original petitions moved against him and Sri. V.P. Shaji by Sri. Nattakom Suresh. From the records, it is clear that it is Sri. Cherian P. Lob who acted against the interest of the party by moving no confidence motion against Sri. Nattakom Suresh who was the WPC.No. 1334/09& Ors. :5 : nominee of the Congress for the post of the President of the Panchayat. From the records produced by Sri. Cherian P. Lob himself, it is evident that the petitioners in the IA took part in the discussion on the no confidence motion and opposed the motion. It is also on record that Sri. Cherian P.Lob moved the motion supported it and thereby ousted Sri. Nattakom Suresh from the Presidentship of the Panchayat. The most important aspect is that Sri. Cherian P. Lob has not produced any evidence to show that the petitioners in the IA acted against the interest of the Congress. Sri. Cherian P. Lob is shrewd enough not to produce the whip allegedly violated by the IA petitioners. This is a classic example of addition insult to injury. There is substance in the contention of the IA petitioners that these original petitions are moved by Sri. Cherian P. Lob just to delay the original petitions moved against him and Sri. V.P. Shaji by Sri. Nattakom Suresh. The original petitions filed by Sri. Cherian P. Lob are frivolous and malafide. He has not made out a case that the respondents, the IA petitioners have done anything attracting the provisions of the Act. In view of these facts, the interlocutory application, IA.46/09,47/09,48/09,49/09,50/09 and 51/09 are allowed and the original petitions 56/09,57/09,58/09,59/09,60/09 and 61/09 are dismissed as not maintainable.” 10. If a party to the proceeding raises the question, Ist respondent is entitled to consider the maintainability of a petition filed and even reject a petition on that ground. But that power is to be exercised sparingly with great caution and only in exceptional cases. Such exceptional cases may include cases WPC.No. 1334/09& Ors. :6 : where even on a plain reading of the petition, no prima facie case is made out, a case where the proceedings are barred by statutory provision or for some similar reason, the proceeding can be said to be patently unsustainable. On the other hand, if resolution of the issue raised requires evidence or arguments of both sides are to be heard, Tribunal should not reject the petition at the threshold of the proceedings and thus, deny the citizen his right to have his grievance considered by a statutory authority. Having said this much, the question to be considered is whether, the Ist respondent was justified in passing Ext.P6 order. Having carefully gone through the impugned order and considered the submissions made, in my view, the reasoning adopted in Ext.P6 cannot be sustained for the reason that on the grounds urged in the interlocutory applications filed, it cannot be said that any ground to hold the petitions to be maintainable has been made out. In my view, even to establish the grounds urged, the case has to be tried and parties are to be heard. Therefore, I cannot sustain Ext.P6, the common order passed by the Ist respondent and the order is accordingly quashed. WPC.No. 1334/09& Ors. :7 : 11. Accordingly, these writ petitions are disposed of setting aside Ext.P6 and directing the first respondent to consider O.P.Nos.56,57,58,59,60 and 61/09 on merits along with O.P.Nos.53 and 54/09 filed by Sri. Nattakam Suresh. 12.Counsel for the 2nd respondent Sri. M. Sreekumar submits that the endeavor of the petitioner is to delay the disposal of O.P.Nos.53/09 and 54/09. It is for the first respondent to ensure that these petitions are disposed of on an expeditious basis. It is directed that the matter shall be disposed of as expeditiously as possible and at any rate within 6 weeks from the date of production of a copy of this judgment. It is made clear that this court has not expressed anything on the merits of the case and it is entirely for the first respondent to appreciate their contentions and evidence and decide the matter untrammelled by whatever is stated in this judgment. Writ Petitions are disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 1334/09& Ors. :8 :