IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 WP(C).No. 25320 of 2010(L) -------------------------- PETITIONER(S): --------------- 1. GEORGE THOMAS, KOKATTU HOUSE, KALAKETTY P.O., KOTTAYAM DISTRICT. 2. LOVELY GEORGE, KOKATTU HOUSE KALAKETTY P.O., KOTTAYAM DISTRICT. BY ADV. SRI.SHAJI THOMAS PORKKATTIL SRI.N.NAGARESH SRI.BINU PAUL SRI.T.V.VINU RESPONDENT(S): --------------- 1. THE ELECTORAL REGISTRATION OFFICER & SECRETARY, THIDANADU GRAMA PANCHAYAT, THIDANADU P.O., KOTTAYAM-686123. 2. THE DEPUTY DIRECTOR OF PANCHAYATS, KOTTAYAM-686001. 3. THE DISTRICT ELECTION OFFICER, KOTTAYAM-686001. *ADDL.R4. TONY ETTATHOTTU, S/O.SEBASTIAN, EATTATHOTTU HOUSE, KALAKETTY P.O.,. KOTTAYAM DISTRICT. *IS IMPLEADED AS PER ORDER DATED 18.8.2010 IN I.A.11707/10. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R2,3 SRI.K.JAJU BABU FOR R1 SMT.M.U.VIJAYALAKSHMI FOR R1 SRI.P.V.BABY FOR ADDL.RES SRI.A.N.SANTHOSH FOR ADDL.RES THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2010, ALONG WITH W.P(C)No.27679/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C)No.25320/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE PHOTOCOPY OF LEASE DEED DATED 8.8.2009 EXT.P2. TRUE PHOTOCOPY OF LEASE DEED DATED 7.7.2010 EXT.P3. TRUE PHOTOCOPY OF THE OBJECTION DATED 21.7.2010 SUBMITTED BY SRI.TOMY SEBASTIAN. EXT.P4. TRUE PHOTOCOPY OF REPLY LETTER DATED 10.8.2010 EXT.P5. TRUE PHOTOCOPY OF THE ORDER DATED 29.07.2010 ISSUED BY THE 1ST RESPONDENT. EXT.P6. TRUE PHOTOCOPY OF THE ORDER DATED 29.7.2010 ISSUED BY THE 1ST RESPONDENT. EXT.P7. TRUE PHOTOCOPY OF MEMORANDUM OF APPEAL DATED 3.8.2010 SUBMITTED BY THE 1ST PETITIONER. EXT.P8. TRUE PHOTOCOPY OF THE SURRENDER CERTIFICATE DATED 28.6.2010 ISSUED BY THE TALUK SUPPLY OFFICER, ALATHUR. EXT.P9. TRUE PHOTOCOPY OF LETTER DATED 31.7.2010 ISSUED BY THE 1ST RESPONDENT. EXT.P10. TRUE PHOTOCOPY OF LETTER DATED 31.7.2010 ISSUED BY THE 1ST RESPONDENT. EXT.P11. TRUE PHOTOCOPY OF THE COMMUNICATION DATED 7.9.2009 ISSUED BY THE SUB DIVISIONAL OFFICER, TELEGRAPHS, ALATHUR. EXT.P12. TRUE PHOTOCOPY OF THE TELEPHONE BILL DDATED 7.6.2010 ISSUED BY SENIOR ACCOUNTS OFFICER, (TRCC) EXT.P13. TRUE PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 16.5.2008 ISSUED BY THE DEPARTMENT OF NEPHROLOGY, MEDICAL TRUST HOSPITAL, EXT.P14. TRUE PHOTOCOPY OF THE ORDER NO.G3.9687/09 DATED 5.8.2010 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXT.P15. TRUE PHOTOCOPY OF THE ORDER NO.G3.9687/09 DATED 5.8.2010 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER. EXT.P16. TRUE PHOTOCOPY OF THE ORDERS DATED 30.8.2010 ISSUED BY THE ELECTORAL REGISTRATION OFFICER, VADAKKENCHERY GRAMA PANCHAYAT. W.P(C)No.25320/2010 : 2 : RESPONDENTS' EXHIBITS: EXT.R4(a). TRUE EXTRACT OF THE ELECTORAL ROLL DATED 16.8.2010 PUBLISHED BY THE SECRETARY, VADAKKENCHERY GRAMA PANCHAYAT. EXT.R4(b). TRUE PHOTOCOPY OF THE DECISION DATED 29.7.2010 TAKEN BY THE WARD MEMBERS AND POLITICAL PARTY REPRESENTATIVES OF THE THIDANADU GRAMA PANCHAYAT. EXT.R4(c). TRUE PHOTOCOPY OF THE STATEMENT DATED 29.7.2010 GIVEN BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.R4(d). TRUE PHOTOCOPY OF THE CERTIFICATE DATED 5.8.2010 ISSUED BY THE SECRETARY, ERATTUPETTA GRAMA PANCHAYAT. EXT.R1(a) TRUE PHOTO COPY OF THE RECEIPT ISSUED BY THE ELECTORAL REGISTRATION OFFICER DATED 17.8.2010. / TRUE COPY / P.S.TO JUDGE P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).Nos.25320 & 27679 of 2010 ----------------------------------------- Dated this the 7th day of September, 2010 JUDGMENT A common question arises in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. 2. W.P(C)No.25320/2010: The petitioners are husband and wife. They were formerly residing within the local limits of Vadakkencherry Grama Panchayat in Palakkad district. It is stated that later they shifted their residence to building bearing door No.323 of Ward No.IX in Thidanadu Grama Panchayat in Kottayam district. Relying on Ext.P1 and Ext.P2 rent chits it is contended that they started such residence in August 2009 and ever since they are ordinarily residing in Ward No.IX of Thidanadu Grama Panchayat. After setting up residence in Ward No.IX of Thidanadu Grama Panchayat, the petitioners submitted applications dated 13.7.2010 and 14.7.2010 to the Electoral Registration Officer of Thidanadu Grama Panchayat requesting for inclusion of their names in the electoral roll of Ward No.IX of W.P(C).Nos.25320 & 27679 of 2010 -:2:- Thidanadu Grama Panchayat. The said applications were rejected by Exts.P5 and P6 on the short ground that they are not permanent residents of Thidanadu Grama Panchayat. The petitioners carried the matter in appeal before the Deputy Director of Panchayats, Kottayam by filing appeals under rule 22 of the Kerala Panchayat Raj (Registration of Electors) Rules, 1994. By Exts.P14 and P15 orders passed on 5.8.2010 the said appeals were rejected. The appellate authority held that the rent chit produced (Ext.P2) is not a registered instrument and therefore, no reliance can be placed on it to hold that the petitioners are ordinarily residing in Thidanadu Grama Panchayat. In this writ petition the petitioners challenge Exts.P14 and P15 and seek a direction to the respondents to include their names in the electoral roll of Thidanadu Grama Panchayat. 3. W.P(C)No.27679/2010: The petitioner herein, who is the additional 4th respondent in W.P(C)No.25320 of 2010, is the Member representing Ward No.IX of Thidanadu Grama Panchayat wherein the petitioners in W.P(C)No.25320 of 2010 claim to be ordinarily residing since August 2009. He contends that the petitioners in that writ petition who are respondents 1 and 2 herein, had applied for inclusion of their names in the electoral roll of Ward No.IX of Thidanadu Grama W.P(C).Nos.25320 & 27679 of 2010 -:3:- Panchayat without disclosing the fact that their names appear in the electoral roll of Ward No.15 of Vadakkencherry Grama Panchayat and that as they had submitted a false declaration they are liable to be prosecuted and punished under section 27 of the Kerala Panchayat Raj Act. The petitioner contends that respondents 1 and 2 (the petitioners in the connected writ petition) are not ordinarily residing in Ward No.IX of Thidanadu Grama Panchayat and therefore their applications for inclusion of their names in the electoral roll of Ward No.IX of Thidanadu Grama Panchayat was rightly rejected by the Electoral Registration Officer and by the appellate authority. 4. I heard Sri.Shaji Thomas and Sri.P.V.Baby, learned counsel appearing for the respective petitioners, Sri.Murali Purushothaman, learned Standing Counsel appearing for the State Election Commission and the Deputy Director of Panchayats and Sri.Jaju Babu, learned counsel appearing for the Electoral Registration Officer of Thidanadu Grama Panchayat. I have also gone through the files leading to Exts.P5 and P6 that were made available by Sri.Jaju Babu, learned counsel appearing for the Electoral Registration Officer of Thidanadu Grama Panchayat. It is not now in dispute that after these writ petitions were filed, the names of the petitioners were deleted from W.P(C).Nos.25320 & 27679 of 2010 -:4:- the electoral roll of Ward No.15 of Vadakkencherry Grama Panchayat. Ext.P2 produced in W.P(C)No.27679 of 2010 by which the names of the petitioners in W.P(C)No.25320 of 2010 were deleted from the voters' list of Ward No.15 of Vadakkencherry Grama Panchayat necessarily leads to the conclusion that they are no longer electors of Vadakkencherry Grama Panchayat. Though the petitioner in W.P(C) No. 27679 of 2010 has challenged Ext.P2 produced therein, I am of the opinion that he cannot challenge the decision taken by the Electoral Registration Officer of Vadakkencherry Grama Panchayat to delete the names of the petitioners in W.P(C)No.25320 of 2010 from the voters' list of that Grama Panchayat. The petitioner in W.P(C)No. 27679 of 2010 cannot, in my opinion, have a legitimate grievance regarding the deletion of the names of voters from the electoral roll of Ward No.15 of Vadakkencherry Grama Panchayat. He can at best, in view of the fact that he has been impleaded as the additional 4th respondent in W.P(C)No.25320 of 2010, oppose that writ petition and contend that the rejection of the application filed by the petitioners in W.P(C)No.25320 of 2010 for inclusion as voters in Ward No.9 of Thidanadu Grama Panchayat is perfectly in order and does not merit interference. I am therefore of the considered opinion that the relief W.P(C).Nos.25320 & 27679 of 2010 -:5:- prayed for in W.P(C)No.27679 of 2010 cannot be granted. W.P(C) No.27679 of 2010 fails and is accordingly dismissed. 5. I shall now deal with the question whether Exts.P14 and P15, which are impugned in W.P(C)No.25320 of 2010, are liable to be interfered with. It is relying on Exts.P1 and P2 rent chits that the petitioners contend that they are ordinarily residing in Ward No.IX of Thidanadu Grama Panchayat ever since 8.8.2009. However, the files leading to Exts.P5 and P6 disclose that the petitioners had not produced a copy of Ext.P1 before the Electoral Registration Officer. They had only produced a copy of Ext.P2 rent chit dated 7-7-2010. On the application filed by the petitioners for inclusion in the voters' list of Ward No.IX of Thidanadu Grama Panchayat, the Electoral Registration Officer passed an order on 21.7.2010 directing the Assistant Electoral Registration Officer to conduct a local inspection and to submit a report on or before 23.7.2010. The Assistant Electoral Registration Officer accordingly conducted an enquiry and submitted a report dated 22.7.2010. The report discloses that when he went over to house No.IX/323 at 4 p.m. on 22.7.2010 the petitioners in W.P(C)No.25320 of 2010 were present though their children were not present. He also reported that the petitioners claimed that they are residing in that W.P(C).Nos.25320 & 27679 of 2010 -:6:- house ever since 7.7.2010. However, he proceeded to state that on enquiry with the neighbouring residents he came to know that the petitioners and their two children are residing in Erattupetta Grama Panchayat and that the first petitioner is running a business near Erattupetta Bus Stand. Based on the said report, the Electoral Registration Officer rejected the applications submitted by the petitioners. On appeal, the appellate authority held that the rent chit, which is not a registered instrument, cannot be relied on to hold that the petitioners are ordinarily residing within the local limits of Thidanadu Grama Panchayat. He also held that the Electoral Registration Officer was also not satisfied on enquiry that the petitioners are ordinarily residing in Thidanadu Grama Panchayat. In my opinion, the stand taken by the Electoral Registration Officer in Exts.P5 and P6 and by the appellate authority in Ext.P14 and P15 cannot be sustained. The Assistant Electoral Registration Officer had in his report dated 22.7.2010 categorically stated that the petitioners were present in the residential building bearing door No.IX/323 at 4 p.m. on 22.7.2010. There is nothing in the report submitted by the Assistant Electoral Registration Officer to indicate that besides the petitioners any other person or persons are ordinarily residing in that W.P(C).Nos.25320 & 27679 of 2010 -:7:- house. The Panchayat has also no case that house No.IX/323 is lying vacant and unoccupied. The Assistant Electoral Registration Officer has however reported that on enquiry he came to know that the petitioners are residing in Erattupetta Grama Panchayat. The Assistant Electoral Registration Officer did not however make enquiries with the landlord of the building, who had executed Ext.P2 rent chit as to whether at least with effect from 7.7.2010 the petitioners are residing in his house. In view of the admitted fact that the landlord of the building bearing door No.IX/323 has executed a rent chit in respect of that building and the petitioners were found to be residing in that building, the decision taken by the Electoral Registration Officer and the appellate authority that the petitioners are not ordinarily residing in Thidanadu Grama Panchayat cannot be sustained. The Electoral Registration Officer and the appellate authority have no case that Ext.P2 is a fabricated document or that it is a forgery. In such circumstances I am of the considered opinion that the decision taken by the authorities that the petitioners are not ordinarily residing in Thidanadu Grama Panchayat cannot be sustained. I accordingly allow W.P(C)No.25320 of 2010, quash Exts.P5, P6, P14 and P15 and direct the first respondent, the Electoral Registration W.P(C).Nos.25320 & 27679 of 2010 -:8:- Officer of Thidanadu Grama Panchayat to include the names of the petitioners in the electoral roll of Thidanadu Grama Panchayat. Necessary steps in that regard shall be taken and completed within one week from the date on which the petitioners produce a certified copy of this judgment. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).Nos.25320 & 27679 of 2010 ---------------------------- JUDGMENT 7th September, 2010