IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 WP(C).No. 14637 of 2011(D) ----------------------------------------- PETITIONER(S): ------------------------- M.SHYLAJA, AGED 29 YEARS, W/O.KUNHIKRISHNAN, MEMBER, WARD NO.IX OF PULLUR PERIYA GRAMA PANCHAYATH, MARUTHAMPADY.P.O., HARIPURAM, PULLUR VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. BY ADVS. SRI.JAWAHAR JOSE, SMT.CISSY MATHEWS. RESPONDENT(S): --------------------------- 1. THE KERALA STATE ELECTION COMMISSION, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS SECRETARY. 2. T.V.KARIYAN, AGED 54 YEARS, S/O.UNDA, (MEMBER, WARD NO.XII OF PULLUR PERIYA GRAMA PANCHAYATH), RESIDING AT THATTUMMAL, HARIPURAM.P.O., PULLUR VILLAGE, HOSDURG TALUK, KASARGODE DISTRICT. 671 531. R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN. R2 BY ADV. SRI. SURESHKUMAR KODOTH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2011,THE COURT ON 09/12/2011 DELIVERED THE FOLLOWING: Kss WPC.NO.14637/2011 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMPLAINT/PLAINT FILED BEFORE THE 1ST RESPONDENT. P2: COPY OF THE WRITTEN STATEMENT. P3: COPY OF THE DELAY PETITION. P4: COPY OF THE COUNTER FOR THE DELAY PETITION. P5: COPY OF THE ORDER. RESPONDENT'S ANNEXURES: ANNEX.A: COPY OF THE COMPLAINT DTD. 26/11/2010 SENT BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. ANNEX.B: COPY OF THE LETTER NO.8741/E/2010/SEC DTD. 02/12/2010 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. ANNEX.C: COPY OF THE LETTER NO.8741/E/2010/SEC DTD.31/01/2011 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.14637 Of 2011 ---------------------- Dated this the 9th day of December, 2011. J U D G M E N T The writ petition is filed seeking the following reliefs: i) To issue a writ, order or direction in the nature of certiorari quashing Ext.P5 order. ii) To declare that Ext.P5 order is illegal. iii) To declare that Ext.P1 petition will not be maintainable, either legally or factually, as there is no sufficient pleadings constituting defection and that there is no evidence to establish that there was a direction in writing to the petitioner by Bharathiya Janatha Party. 2. The petitioner is the respondent in I.A.No.5/2011 in O.P.No.145/2011 on the files of the 1st respondent. The I.A was filed by the 2nd respondent herein as petitioner to condone the delay of 9 days in filing the O.P. The original petition was filed under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act 1999. Ext.P3 is the application for condoning the delay. Ext.P1 is the copy of the original petition. The only reason stated in Ext.P3 is that the delay was caused due to the time taken for preparation of the main petition. The State Election Commissioner by Ext.P5 order allowed Ext.P3 application. The Election Commissioner observed that the ::2:: W.P.(C).No.14637 Of 2011 petitioner is hailing from Pullur-Periya Grama Panchayath in the northern most part of the State and it is quite natural for him to make preliminary arrangements to file the petition before the State Election Commission which is situated at Thiruvananthapuram. For the said reason, the I.A was allowed. 3. Heard the learned counsel for the petitioner and learned standing counsel for the 1st respondent and learned counsel for the 2nd respondent. 4. The O.P. was filed for a declaration that the election of the Panchayath President and Vice President of Pullur-Periya Grama Panchayath held on 8.11.2010 is null and void by invoking the relevant provision of Kerala Panchayath Raj Act, Kerala Local Authorities (Prohibition of Defection) Act, 1999 and Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 against the defendant and to conduct fresh election by declaring disqualification of the defendant. The Election Commissioner received a complaint dated 26.11.2010 on 2.12.2010. The complaint dated 26.11.2010 is marked as Annexure A produced along with the statement filed by the 1st respondent. On the same day, i.e., on 2.12.2010, the Election Commissioner ::3:: W.P.(C).No.14637 Of 2011 informed the 2nd respondent that Annexure A could not be acted upon and is rejected and further informed the 2nd respondent that if he is desirous of filing a petition, he can do so in terms of the Civil Procedure Code either in person or through counsel. Annexure B is the said letter. 5. Rule 4A of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 stipulates that the O.P shall be filed within 15 days from the date on which cause of action arose. Proviso to the said Rule empowers the Commissioner to condone the delay in filing the petition on satisfaction of sufficient grounds. 6. On 20.1.2011, the 2nd respondent filed Ext.P1 petition. Ext.P1 is dated 19.1.2011. As on 20.1.2011 there is a delay of 57 days in filing the O.P. No petition for condoning the delay in filing the O.P was filed along with the O.P. On receipt of Ext.P1 petition, the Commissioner by communication dated 31.1.2011 directed the 2nd respondent herein to appear in person before the Commission on 11.2.2011. Annexure C is the copy of the communication dated 31.1.2011. Ext.P3 is the copy of the petition filed to condone the delay in filing the O.P. The said ::4:: W.P.(C).No.14637 Of 2011 petition was filed on 21.2.2011. The number of days delay is stated as '8 days'. The petitioner, who is the contesting respondent in the petition and in the I.A for condoning the delay, pointed out that the number of days delay is 57 days and not 8 days. It is pointed out that election to the post of President and Vice President was held on 8.11.2010. So, the petition before the Election Commissioner has to be filed on or before 23.11.2010 and that the 2nd respondent presented Ext.P1 petition on 20.1.2011. It is pointed out that no application for condoning the delay was filed on the date of presentation of the main petition on 20.1.2011. Subsequently, on 21.2.2011, Ext.P3 petition was filed to condone the delay of '8 days' even though the delay is 57 days. Earlier, the 2nd respondent originally filed a petition through post. The Commissioner rejected the said application since the same has not been presented in the manner prescribed in the Code of Civil Procedure. Since Ext.P1 petition was filed on 20.1.2011, there was a delay of 57 days in filing the main petition. The application is filed for condoning the delay of 8 days as if the delay in filing the petition is only 8 days. No reasons are stated even for condoning the delay of 8 days. The ::5:: W.P.(C).No.14637 Of 2011 alleged reason stated is that the delay was occurred due to the time was taken for preparation of the main petition. In any event, the said reason cannot be taken as a reason for not filing the main petition within time. Moreover, the delay in filing the main petition is not 8 days, but, 57 days. No reasons are stated nor sufficient cause is shown for condoning the delay of 57 days in filing the main petition. In the said circumstances, Ext.P5 order condoning the delay of 8 days in filing the main petition is liable to be interfered with. The finding that the petitioner is a resident of Pullur-Periya Grama Panchayath in the northern most part of the State and it is quite natural for him to make preliminary arrangements to file the petition before the State Election Commission which is situated at Thiruvananthapuram, is not a reason for condoning the delay of even 8 days as mentioned in Ext.P5 order. From the statement submitted by the Election Commissioner it is clear that the petitioner was not at all vigilant in filing the main petition. Originally, the applicant sent a petition through post and not presented the petition in the manner prescribed in the Code of Civil Procedure. He submitted Ext.P1 petition on 20.1.2011, i.e., after 40 days. The conduct ::6:: W.P.(C).No.14637 Of 2011 also shows that the petitioner was not vigilant in prosecuting the main case. 7. The Election Commissioner has got jurisdiction to condone delay in the presentation of an Election petition if the petitioner had sufficient cause for not presenting it within the time prescribed. It is for the applicant to satisfy the Election Commissioner that he had sufficient cause for not preferring the petition in time. Having failed to do so, the impugned order, namely, Ext.P5, allowing the prayer in the I.A to condone the delay in filing the main petition cannot stand. For the aforesaid reasons, the writ petition is allowed. Ext.P5 order is unsustainable in law and hence it is quashed. There will be a direction to the 1st respondent to pass consequential order on the main petition. HARUN-UL-RASHID, Judge. bkn/-