The subsequent election will be subject to orders: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY THE 15TH DAY OF FEBRUARY 2022 26TH MAGHA 1943 WP(C) NO.2684 OF 2022 PETITIONERS : SMIJI BINOJ AGED 43 YEARS W O. BINOJ CHIRAYATH HOUSE KANJANI THRISSUR DISTRICT 680 612. SANGEETHA BINOY KUNNATHULLY HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612. KOMALA CHANDRAN W O. CHANDRAN KALLAYIL HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612 SHIMA SALESH W O. SALESH KANAKKANDRA HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612. MOHINI RAJU W O. RAJU KAKKADATH HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612. AJITHA MURALEEDHARAN W O.MURALEEDHARAN KAKKADATH HOUSE P. O. KANJANI THRISSUR DISTRICT 680 612. RESPONDENTS : THE DISTRICT COLLECTOR COLLECTORATE AYYANTHOLE THRISSUR PIN 680 003 MANALUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY MANALUR P. O. THRISSUR DISTRICT PIN 680 612. VILLAGE EXTENSION OFFICER MANALUR GRAMA PANCHAYATH MANALUR P. O. THRISSUR DISTRICT PIN 680 612 BY SMT.DEEPA K.R. SPL.GP BY SRI.V.N.HARIDAS SC THIS WRIT PETITION HAVING COME UP FOR ADMISSION ON 15.02.2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.2684 OF 2022 : 2 : Dated this the 15 th day of February 2022 This writ petition is filed seeking the following reliefs : declare that the petitioners and other six persons elected to ward No.5 Area Development Society of Manalur Panchayat in the election held on 16.01.2022 is the lawfully constituted Area Development Society of Ward No.5 Manalur Grama Panchayat Issue a writ in the nature of mandamus commanding the respondents 1 and 2 not to interfere with the functioning of the Area Development Society elected on 16.01.2022 of Ward No.5 of Manalur Grama Panchayat under the guise that the election is cancelled by the 1st respondent without notice to the petitioners and other elected members of Area Development Society of ward No.5 .” Heard the learned counsel for the petitioners and the learned Government Pleader as well as the learned counsel appearing for the respondent Panchayat. I have also heard the learned counsel for the petitioners in W.P.(C) No.4365 2022 Having heard the learned counsel on all sides I notice that it is admitted that the election to the ADS of Ward No.5 of Manalur Panchayat had been conducted on 16.01.2022. It is submitted that there were 19 Neighborhood Groups and 95 eligible voters in the ADS election. It is stated that 83 of the 95 eligible members participated in the election and 11 members were elected WP(C) NO.2684 OF 2022 : 3 : including the petitioners herein. It is stated that 47members had raised a complaint against the election on the very day of the election and the CDS Returning Officer had considered and upheld the election. However on 19.01.2022 an appeal was filed by the 47 members before the 1st respondent who had considered the appeal and had set aside the election. It is submitted by the learned counsel for the petitioners that the petitioners who were elected members were not heard before the election had been set aside. Though arguments had been raised with regard to the necessity of issuing notice I am of the clear opinion that the election could not have been set aside without hearing the persons who have been elected in the election conducted on 16.01.2022 In the above view of the matter I am of the opinion that the appeal requires a reconsideration with notice to all concerned There will accordingly be a direction to the 1st respondent to forward the appeal filed along with all the records to the District Election Officer who shall issue notice to the appellants as well as the elected members and all other voters by any appropriate electronic means. The District Election Officer of the Thrissur District shall conduct a hearing as informed by the notice through any appropriate means including video conferencing and shall pass orders on the appeal submitted by the 47 members. Copies of the WP(C) NO.2684 OF 2022 : 4 : appeal memorandum shall also be forwarded to the parties through any appropriate electronic means. The subsequent election conducted on 22.1.2022 will be subject to the orders to be passed by the District Election Officer on the appeal. With regard to the CDS elections the elections to the particular Panchayat shall be deferred until orders are passed in the appeal in accordance with law. This writ petition is ordered accordingly Sd ANU SIVARAMAN JUDGE WP(C) NO.2684 OF 2022 : 5 : APPENDIX OF WP(C) 2684 2022 TRUE COPY OF COMPLAINT FILED BY THE 1ST PETITIONER TO THE DISTRICT COLLECTOR DATED TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONERS 1 AND 2 BEFORE THE DISTRICT COLLECTOR DATED 24.01.2022. 

Summary:  The election which is scheduled to be held on 22.02.2022, will be subject to orders passed by the District Election Officer. This was held by the single judge bench of Justice Anu Sivaraman in the case of Smiji Binoj &amp; Ors. v District Collector &amp; Ors. in WP (C) No.  2684 of 2022, decided on 15th of February, 2022. The writ petition has been filed to seek relief on two matters, that is to declare that the petitioners and other members elected in Manalaur Panchayat held on 16.02.2022 is the lawfully constituted Area Development Society (ADS) of Manalaur Gram Panchayat &amp; to issue a writ of mandamus commanding the respondents to not interfere with the functioning of Area Development Society. It is observed that there were 19 Neighborhood groups and 95 eligible voters in the ADS election. Out of those, 83 members participated in the elections &amp; 11 were elected.47 members had filed a complaint against the elections; however, the elections were upheld. Then, on 19th, another appeal before respondent no. 1 was filed who set aside the elections. The grievance is that the elected members were not heard before setting aside the elections. It was held by the judge that even if setting aside is important, it is necessary to provide a notice before. It was ruled that the District Collection Officer of Thrissur district shall conduct a hearing and pass orders on appeals by all the forty-seven members. It was subsequently held that the result of the election shall now depend on the orders of the hearing. Alongside, the election for CDS shall also be now, deferred.