Kerala High Court
Exhibit P10- A True Photocopy Of ... vs Monday on 29 March, 2021
WP(C) 8237/2021 1 / 11
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
Monday,the 29th day of March 2021/8th Chaithra, 1943
WP(C) No.8237/2021
PETITIONER
For information purpose only
THE STATE OF KERALA
REPRESENTED BY THE ADDITIONAL SECRETARY TO THE GOVERNMENT
OF KERALA, FOOD AND CIVIL SUPPLIES DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM.
RESPONDENT
1.THE ELECTION COMMISSION OF INDIA
REPRESENTED BY ITS SECRETARY GENERAL NIRAVACHAN SADAN,
ASOKA ROAD, NEW DELHI-110 001.
2.THE CHIEF ELECTORAL OFFICER OF KERALA,
NIYAMASABHA COMPLEX, THIRUVANANTHAPURAM-695 033.
Writ Petition (civil) praying inter alia that in the circumstances stated in the affidavit
filed along with the WP(C) the High Court be pleased to stay the operation of Exhibit P7
communication, in so far as it defers the proposal for distribution of 10 kg rice at the rate of
Rs 15/kg to Non Priority Ration Card Holders of the Petitioner State during the months of
March and April , 2021,pending final disposal of this writ petition.
This petition coming on for admission upon perusing the petition and the affidavit filed
in support of WP(C) and upon hearing the arguments of SRI.RANJITH THAMPAN,
ADDITIONAL ADVOCATE GENERAL for the petitioner and of SRI.DEEPU LAL
MOHAN, COUNSEL for the respondents, the court passed the following:
P.V.ASHA, J.
------------------------------------
W.P.(C) No.8237 of 2021
------------------------------------
Dated this the 29th day of March, 2021
O R D E R
For information purpose only
Admit.
Adv.Sri.Deepu Lal Mohan takes notice for the
respondents.
2. Petitioner challenges Ext.P7 order to the
extent it deferred the proposal submitted in Ext.P6
relating to distribution of 10 kg rice to non-
prioritised categories of ration card holders in
March and April, 2021. According to the petitioner,
item 17 was based on Ext.P4 order issued on
04.02.2021 on the basis of Ext.P3 budget speech of
the Finance Minister, at a time when an Election in
the month of April, 2021 was not in contemplation.
Moreover, in Paragraph No.9 of the writ petition it
is stated as follows:
"9. As would be revealed from Ext.P4
Order, the Government had also
ordered that the additional rice
required for such distribution must
be procured from the OMSS of the FCI.
W.P.(C) No.8237 of 2021
The State, thereafter, successfully
got in auction acceptance offer for
rice worth Rupees 84 crores from the
OMSS of the FCI. If the scheme is
For information purpose only
not materialised by 30.03.2021, the
auctioned lot not lifted by the
State and not paid for will be re-
appropriated by the FCI and the
State will have to make good the
same by fresh auction, which may
entail additional burden on the
State."
3. Heard Sri.Ranjith Thampan, learned
Additional Advocate General appearing for the
petitioner and Adv.Sri.Deepu Lal Mohan, learned
Counsel appearing for the respondents.
4. A copy of the proceedings relating to
acceptance of offer under OMSS(D) issued by the
Regional Office - (FCI-Kerala), Food Corporation
of India was made available for perusal. The said
proceedings relate to auction for distribution of
rice for 14 depots across Kerala for a sum of
Rs.50,72,00,000/- and for another 19 depots for a
sum of Rs.33,34,00,000/-. As per Ext.P6 letter,
W.P.(C) No.8237 of 2021
the Principal Secretary to Government, General
Administration(Co-ordination) Department forwarded
a circular resolution dated 16.03.2021 to the
Chief
ForElectoral
information
Officer
purpose
to
only and
examine to
recommend urgent proposals from various
departments for the clearance from Election
Commission of India in respect of Model Code of
Conduct 2021. Item No.17 reads as follows:
17 95/D2/2020/ Distribution of 10Kg rice & ASL
F&CSD Food 10Kg of rice at were distributed to
and the rate of Non-Priority card
CivilSuppli Rs.15Kg to Non- holders
es Priority card previously(June,
Department holders in the July & August
month of March 2020), on account
pandemic.
Government have
decided to continue
the same for the
months of March &
April 2021. This
special rice is
essential to the
Non-Priority ration
card holders in
view of the
increase in
unemplyment and
financial distress
and consequential
income loss to
people due tothe
spread of Covid, as
they are getting
W.P.(C) No.8237 of 2021
only less ration
under NFSA.
5. As per Ext.P7 order dated 23.03.2021, the
For information purpose only
Chief Electoral Officer informed that out of the
27 proposals submitted as per Ext.P6, only the
proposal at Sl.Nos.10, 14 & 21 are conceded. With
respect to Serial No.25 it was stated that
concurrence of the Election Commission of India
was necessary and all other proposals are deferred
until the Model Code of Conduct is over. Thus item
17 is also deferred. The petitioner challenges the
order deferring the proposal at item No.17.
6. Relying on the judgment of the Division
Bench in W.P.(C).No.8178/2011(Ext.P8) as well as
the judgment of the Division Bench reported in
2006 KHC 364 in K.M.Babu v. Election Commission of
India and Others(Ext.P10) and the judgment in
2018(5)KHC 627 in Joy Issac P. and others v.
Pharmaceutical Corporation (Indian Medicines)
Kerala Ltd.(Oushadhi) and Others, the learned
Additional Advocate General argued that
implementation of decision which was taken as
W.P.(C) No.8237 of 2021
early as on 04.02.2021, at a time when an election
which was not in contemplation in the month of
April, 2021 cannot attract the Model Code of
For information
Conduct.
purpose only
The learned Advocate General also
referred to the compendium of instructions on
Model Code of Conduct and argued that the
restrictions would not apply to the State Utility
schemes which have already been brought up.
7. On the other hand, the learned Standing
Counsel, Sri.Deepu Lal Mohan pointed out that a
screening committee has been constituted for
submitting proposals before the Election
Commission for clearance and the said screening
committee consisting of the Chief Secretary and
other Secretaries of two Departments had submitted
Ext.P6 proposal, based on which Ext.P7 order was
issued. It is pointed out that Ext.P6 would not
reveal that a decision was taken for distribution
of rice to the non-priority Ration card holders in
March and April, 2021 on the basis of any decision
taken in February 2021, or on the basis of the
implementation of Budget Speech and the
W.P.(C) No.8237 of 2021
circumstances pointed out in the Writ Petition
have not been brought to the notice of the
Election Commission. It was also pointed out that
For information purpose only
there was nothing in the proposal to show anything
relating to the auction or the averments in
Paragraph No.9 of the Writ petition also.
8. The learned Standing counsel submits that
Clause 4 of the Code of Conduct would attract the
proposal made in item No.17, according to which,
there shall not be any fresh sanction for the
Government scheme and it also provides that even
if the schemes are on-going it should be stopped
till completion of election.
9. At the same time it was also pointed out
that under Clause 5.4.1, the Election Commission
would take humanitarian view on the works that are
necessitated due to man made and natural
calamities and in case the purpose behind the
proposal at serial No.17 for decision was brought
to the notice of the Election Commission, that
would have been considered in accordance with
claue 5.4.1.
W.P.(C) No.8237 of 2021
10. As pointed out by the learned Standing
Counsel it is true that item no.17 in Ext.P6
proposal does not refer to Ext.P4 order though it
For information purpose only
refers to Covid-19 pandemic and the necessity for
distribution of rice @ Rs15 per kg.
11. In view of the fact that the proposal in
item no.17 for implementation of a decision was
taken as per Ext.P4 order as early as on
04.02.2021, the said proposal cannot be one
prohibited by model code of conduct in the light
of the judgments in Exts.P8, P10, etc. In Babu v.
Election Commission of India: 2006 (2) KLT 137,
this Court held that in view of the budget speech
and announcement of the Government that
recommendations of the Pay Commission will be
implemented on 10-2-2006, it cannot be stated that
the decision to implement the recommendations of
the Pay Commission was made after the Model Code
of Conduct came into force. In the subsequent
judgment in Rajaji Mathew Thomas' case also the
very same dicta was reiterated.
12. Moreover, the proceedings relating to
W.P.(C) No.8237 of 2021
auction made available to me in support of the
contention made in Paragraph No.9 of the Writ
Petition would show that the last date for payment
For information
towards the auction
purpose
for the
only
purpose of
distribution of rice falls on 30.03.2021.
Unnecessary and huge expenditure will be incurred
on the State in the event of any hindrance to it.
Due to paucity of time it would be practically
impossible for the petitioner to approach the
respondents with another proposal pointing out the
decision taken on the basis of the Budget Proposal
as well as Ext.P4 decision.
13. In these circumstances, I am of the
view that Ext.P7 order requires interference.
Accordingly, there shall be a stay of Ext.P7 order
to the extent it relates to item No.17.
14. The petitioner shall see that all
ostentatious functions relating to the same should
be strictly avoided and no impression should be
given or allowed to be created that such welfare
measures or relief and rehabilitation works are
being undertaken by the Government in office so as
W.P.(C) No.8237 of 2021
to influence the electors in favour of the party
in power.
Hand over.
For information purpose only Sd/-
P.V.ASHA
JUDGE
DM
/true copy/ Sd/- ASSISTANT REGISTRAR
KLHC010217842021 11 / 11
EXHIBIT P3 - A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE BUDGET
SPEECH 2021 PRESENTED BY THE MINISTER FOR FINANCE, GOVERNMENT OF
KERALA, IN RELATION TO "FOOD SECURITY".
EXHIBIT P4 - A TRUE PHOTOCOPY OF GO(MS) NO.5/2021/F & CSD DATED
04.02.2021.
EXHIBIT P6 - A TRUE PHOTOCOPY OF THE LETTER NUMBER CDN4/53/2021/GAD
For information purpose only
DATED 16.03.2021 ISSUED BY THE SECRETARY, GENERAL ADMINISTRATION
DEPARTMENT, GOVERNMENT OF KERALA TO THE SECOND RESPONDENT,
TOGETHER WITH THE PAGE CONTAINING THE PROPOSALS 16 TO 19.
EXHIBIT P7 - A TRUE PHOTOCOPY OF LETTER NO.1540(188)EL4/2021/ELEC
DATED 23.03.2021 OF THE SECOND RESPONDENT, TOGETHER WITH THE
PROPOSALS 16 TO 19.
EXHIBIT P8 -A TRUE COPY PHOTOCOPY OF THE JUDGMENT DATED 21-03-2011
OF THIS HONOURABLE COURT IN WRIT PETITION (CIVIL) NO.8178 OF 2011
EXHIBIT P10- A TRUE PHOTOCOPY OF THE JUDGEMENT OF THIS HONOURABLE
COURT IN KM BABU V. ELECTION COMMISSION OF INDIA AND OTHERS (2006
KHC 364).
