IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).No. 27356 of 2010(T) -------------------------- PETITIONER(S): --------------- SAJI ANTONY, KURISUMMOOTTIL HOUSE, CHAKKAMPUZHA P.O., RAMAPURAM, KOTTAYAM. BY ADV. SRI.ROY CHACKO SRI.K.C.VINCENT RESPONDENT(S): --------------- 1. THE STATE ELECTION COMMISSION, KERALA REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE COMPLEX, LMS JUNCTION, THIRUVANANTHAPURAM- 695033. 2. THE DISTRICT ELECTION OFFICER (DY.DIRECTOR OF PANCHAYATS), KOTTAYAM. 3. THE ELECTRORAL REGISTRATION OFFICER, (SECRETARY, RAMAPURAM GRAMA PANCHAYAT), RAMAPURAM BAZAR P.O., RAMAPURAM. 4. ROY MATHEW, ELIPULIKATTU HOUSE, CHAKKAMPUZHA P.O., KOTTAYAM-686574. BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 BY GOVT. PLEADER SMT.K.R.DEEPA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.27356 of 2010 ------------------------------- Dated this the 14th day of September, 2010 J U D G M E N T The petitioner, who is a resident of Ramapuram Grama Panchayat has filed this writ petition challenging Ext.P2 order issued by the Electoral Registration Officer of Ramapuram Grama Panchayat and Ext.P5 order issued by the Deputy Director of Panchayats, whereby the said authorities rejected Ext.P1 application submitted by the petitioner for deletion of the name of the fourth respondent from the electoral roll of Ward No.11 of Ramapuram Grama Panchayat. 2. The main contention raised in the writ petition is that the fourth respondent has got his own residential house within the local limits of Karoor Grama Panchayat; that the said house is electrified; that the electricity charges are being regularly paid; that there is a telephone installed in the said house and all these lead to the inference that the fourth respondent is ordinarily residing within the local limits of Karoor W.P.(C) No.27356/2010 2 Grama Panchayat. It is also contended that the Electoral Registration Officer ought to have, in view of the fact that a question has arisen as to whether the fourth respondent is ordinarily residing within the local limits of Ramapuram Grama Panchayat, referred the said question to the State Election Commission for adjudication and that, on that short ground, the impugned orders are liable to be set aside. 3. I heard Sri.K.C.Vincent, learned counsel appearing for the petitioner and Sri.Murali Purushothaman, the learned standing counsel appearing for the first respondent. I have also gone through the pleadings and the materials on record. In Ext.P1 application, the petitioner sought the deletion of the name of the fourth respondent from the electoral roll of Ward No.11 of Ramapuram Grama Panchayat, on the ground that he is ordinarily residing in Karoor Grama Panchayat. In support of the said contention, the petitioner relied on Ext.P6 letter sent by the Secretary of Karoor Grama Panchayat wherein it is stated that residential building bearing door No.8/410-A of Karoor Grama W.P.(C) No.27356/2010 3 Panchayat belongs to the fourth respondent and that as per the assessment register, the fourth respondent is in occupation thereof. Reliance is also placed on Ext.P7 letter sent by the Bharat Sanchar Nigam Limited and Ext.P8 letter sent by an officer of Kerala State Electricity Board to contend that the said house is electrified and that a telephone is installed in the premises. The Electoral Registration Officer rejected the said contentions holding that the fourth respondent is not a voter of Karoor Grama Panchayat and that the Electoral Identity card and the ration card which he holds and the registration certificate of his car shows that he is residing in Ramapuram Grama Panchayat. It is also stated that fourth respondent is a member of Ramapuram Grama Panchayat since 2000 and from 13.11.2007 to 9.10.2009, he was also the President of the said Panchayat. The Electoral Registration Officer held that the petitioner has not proved that the fourth respondent has ceased to be ordinarily resident in Ramapuram Grama Panchayat. Ext.P1 application was accordingly dismissed by Ext.P2 order W.P.(C) No.27356/2010 4 dated 4.8.2010. The petitioner carried the matter in appeal before the Deputy Director of Panchayats under Section 25 of the Kerala Panchayat Raj Act, 1994 read with Rule 22 of Kerala Panchayat Raj (Registration of Electors) Rules, 1994. By Ext.P5 order passed on 21.8.2010, the said appeal was rejected. 4. In my opinion, the challenge to Exts.P2 and P5 is without any merit. Under the provisions of section 23 of the Kerala Panchayat Raj Act, 1994 and rule 25 of the Kerala Panchayat Raj (Registration of Electors) Rules, 1994, the name of the fourth respondent can be deleted from the electoral roll of Ramapuram Grama Panchayat only if he has ceased to be ordinarily resident in that grama panchayat. The petitioner has no case that the fourth respondent has ceased to be ordinarily resident in Ramapuram Grama Panchayat. His claim was that the fourth respondent is a resident of Karoor Grama Panchayat. The burden was on the petitioner to show that the fourth respondent had ceased to be ordinarily resident in Ramapuram Grama Panchayat. From the very contents of Ext.P1 W.P.(C) No.27356/2010 5 application, it is evident that at least immediately prior to Ext.P1 application, the fourth respondent was ordinarily residing in Ramapuram Grama Panchayat. The case set out by the petitioner is that presently the fourth respondent is ordinarily residing in Karoor Grama Panchayat. Apart from producing documents to show that fourth respondent owns a residential house which is electrified and has a telephone connection, the petitioner has not produced any material to show that fourth respondent has ceased to be an ordinarily resident within the local limits of Ramapuram Grama Panchayat. In my opinion, the mere fact that a voter of Ramapuram Grama Panchayat owns a residential house elsewhere which is electrified and in which a telephone is installed will not by itself lead to the conclusion that he is ordinarily residing within the local limits of the Grama Panchayat where that house is situated. The petitioner has also been not able to establish that the name of the fourth respondent appears in the electoral roll of Karoor Grama Panchayat. If, as claimed by the petitioner, the fourth W.P.(C) No.27356/2010 6 respondent is ordinarily residing in Karoor Grama Panchayat, his name would certainly have found a place in the electoral roll of that Grama Panchayat. The fact that the name of the fourth respondent does not find a place in the electoral roll of Karoor Grama Panchayat is, in my opinion, proof positive of the fact that he is not ordinarily residing in that grama panchayat. In other words, the materials produced by the petitioner will not show that fourth respondent who was admittedly residing in Ramapuram Grama Panchayat has ceased to be a resident of that grama Panchayat. In such circumstances, the decision taken by the Electoral Registration Officer evidenced by Ext.P2 and by the appellate authority evidenced by Ext.P5 cannot be said to be infirm or illegal. I accordingly hold that there is no merit in the challenge to Exts.P2 and P5. 5. As regards the contention that the Electoral Registration Officer ought to have referred the question to the State Election Commission, I am of the opinion that Section 21 of the Kerala Panchayat Raj Act, 1994, has no application to W.P.(C) No.27356/2010 7 cases where Section 23 of the Kerala Panchayat Raj Act applies. Section 23 enables a voter whose name is entered in the Electoral Roll of a constituency of a Panchayat to seek the deletion of the name of another voter from the electoral roll on the ground that the other voter has ceased to be ordinarily residing in that constituency. When an application raising such a contention is filed, the Electoral Registration Officer will necessarily have to decide whether the case set out by the objector is factually correct. Under the proviso to section 23 of the Kerala Panchayat Raj Act, 1994, a decision on a complaint can be taken only with notice to the person whose name is sought to be removed. Therefore, the mere fact that fourth respondent was put on notice and was heard does not lead to the conclusion that a question has arisen as to whether the fourth respondent is ordinarily residing at a given place. The emphasis in section 23 is on cessation of residence while in cases governed by section 21, the question to be referred to the Election Commission is whether a person is ordinarily resident W.P.(C) No.27356/2010 8 at a particular place at any relevant time. The two provisions operate in two different contingencies and section 21 has no application to a case where the elector of a constituency of a Panchayat moves for deletion of the name of another voter on the ground that the other voter has ceased to be a resident of that constituency. The Electoral Registration Officer was therefore not bound to refer the matter to the State Election Commission. For the reasons stated above, I hold that there is no merit in the writ petition. The writ petition fails and is accordingly dismissed. P.N.RAVINDRAN, Judge. nj.