IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WP(C).No. 32205 of 2009(U) -------------------------------------- PETITIONER(S): ----------------------- 1. SRI.K.V. APPACHAN, MEMBER, WARD NO.8, ARAKULAM GRAMA PANCHAYAT, IDUKKI DISTRICT, RESIDING AT KARADIL, METHANAM TEA ESTATE, ELAPPALLY P.O., IDUKKI. 2. SRI.V.S. JOHN, MEMBER, WARD NO.1, ARAKULAM GRAMA PANCHAYAT, RESIDING AT VAZHIPURAKKAL VEEDU, ARAKULAM IDUKKI. BY ADV. MR.SIBY MATHEW MR.PHILIP J.VETTICKATTU MR.B.PREMNATH (E) RESPONDENT(S): ------------------------- 1. SRI.TOMY JOSEPH, KUNNEL HOUSE, MOOLAMATTAM P.O., IDUKKI DISTRICT. 2. THE KERALA STATE ELECTION COMMISSIONER, TRIVANDRUM. R1 BY ADV. MR.P.FAZIL R2 BY ADV. MR.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. THOTTATHIL B. RADHAKRISHNAN, J. -------------------------------------- W.P.(C) No.32205 OF 2009 -------------------------------------- Dated this the 17th day of November, 2009 J U D G M E N T ~~~~~~~~~~~~~ The two petitioners are members of a Grama Panchayat in Idukki district. The 1st respondent filed two petitions before the State Election Commission seeking a declaration that the writ petitioners are disqualified in terms of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (herein after referred to as 'the PD Act'). Those petitions were filed after the period prescribed for filing them. The 1st respondent sought condonation of ten days delay in filing each of the petitions. He pleaded in his affidavit before the Commission that after collecting the relevant materials from the Municipality he had to go over to Trivandrum and engage a counsel and the entire matter took ten days more. The period fixed, as per The Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, is 15 days. It is the provision in the Rules which empower the Commission to condone delay. W.P.(C) No.32205/2009 2 2. I may, at once, notice that no period of limitation is prescribed in the primary legislation. By the subordinate legislation, the period to institute a proceeding is regulated by fixing a time limit and a power to condone delay is also prescribed. The Election Commission took into consideration the affidavit and has condoned the delay holding that the Panchayat in question is in a remote place in Idukki District and the 1st respondent herein has to shown sufficient cause to condone the delay of ten days. There is no jurisdictional error or legal infirmity in the action of the State Election Commission. I, therefore, do not find any ground for this Court to exercise its visitorial jurisdiction, at any rate, a discretionary one and interfere with the orders of the State Election Commission. This Writ Petition has, therefore, to necessarily fail. 3. The learned counsel for the petitioners then pointed out that the date of cause of action is itself erroneous going by the petitions filed before the Commission. He says that if the acts attributed are referable to the delivery of a direction (whip), the cause of action should have been different. I do not want to express W.P.(C) No.32205/2009 3 anything on that aspect now because, that is an issue which will gain attention of the State Election Commission, if appropriately raised at the time of trial. In the result, the Writ Petition is dismissed in limine. No costs. THOTTATHIL B.RADHAKRISHNAN, Judge ps