Lijesh K vs State Election Commission, ...
2023 Latest Caselaw 5751 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
  WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                     WP(C) NO. 14663 OF 2023
PETITIONER:

          LIJESH K
          AGED 38 YEARS
          COUNCILOR OF WARD NO.17,
          MANJOODI, THALASSERY MUNICIPALITY,
          KANNUR DISTRICT - 670101.

          BY ADVS.
          ARUN KRISHNA DHAN
          T.K.SANDEEP
          ARJUN SREEDHAR
          ALEX ABRAHAM
          VEENA HARIKUMAR
          SWETHA R.
          HARIKRISHNAN P.B.

RESPONDENTS:

    1     STATE ELECTION COMMISSION, KERALA
          REPRESENTED BY ITS SECRETARY,
          JANAHITHAM, T.C 27/6(2), VIKAS BHAVAN PO,
          THIRUVANANTHAPURAM - 695033.

    2     SECRETARY
          THALASSERY MUNICIPALITY,
          THALASSERY MUNICIPAL OFFICE,
          MG ROAD,PALISSERY, THALASSERY,
          KANNUR - 670101.

    3     THALASSERY MUNICIPALITY
          REPRESENTED BY ITS SECRETARY,
          THALASSERY MUNICIPAL OFFICE,
          MG ROAD, PALISSERY, THALASSERY,
          KANNUR - 670101.

          BY ADV SHRI.DEEPU LAL MOHAN, SC,
          I.V.PRAMOD- S.C
 W.P.(C) No.14663 of 2023
                                  2




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   24.05.2023,   THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C) No.14663 of 2023
                                 3


                        JUDGMENT

Dated this the 24th day of May, 2023

The petitioner, who is a Councilor of the Thalassery

Municipality elected from Ward No.17 of the Municipal Council,

has approached this Court seeking to set aside Ext.P9 order

passed by the Kerala State Election Commission,

Thiruvananthapuram.

2. The petitioner was disqualified as per Ext.P4 order for

consistently absenting himself in the Committee Meetings.

According to the petitioner, he was involved in a criminal case and

for that reason, he could not appear in the Committee Meetings.

The petitioner thereafter was granted bail as per order dated

01.03.2023 in Crl.M.P.No.705/2023 in Sessions Case No.

653/2022 of the Court of the Sessions, Thalassery.

3. The petitioner challenged his disqualification by filing

O.P.No.4/2023 before the Kerala State Election Commission, W.P.(C) No.14663 of 2023

Thiruvananthapuram. In the said O.P., the petitioner moved

I.A.No.24/2023, seeking an interim order permitting the petitioner

to continue and function as Councilor of Ward No.17 of Thalassery

Municipality till a final decision is taken in the original petition. The

State Election Commission considered the interlocutory

application and passed Ext.P9 order. The operative portion of

Ext.P9 order reads as follows:

"The question arise in the original petition is whether the petitioner has become subject to disqualification as provided under Section 91(k) read with Section 92 of the Kerala Municipality Act and hence the matter involved in the case requires detailed consideration. It is seen that the petitioner is enlarged on bail, but with restrictions to enter Mahe Police Station limits, then the ward remained unrepresented in the Council. As such, in his absence, it is quite doubtful whether he could effectively discharge the functions and duties of the Councilor as mandated in the Act or could truly represent the ward and the electors. The I.A is dismissed."

4. The counsel for the petitioner would submit that his

constituency is not within the limits of the Mahe Police Station.

Therefore, the reasoning given by the State Election

Commissioner for rejecting his interlocutory application is W.P.(C) No.14663 of 2023

unsustainable. In the circumstances, Ext.P9 is liable to be set

aside, contented the counsel for the petitioner.

5. Standing Counsel entered appearance on behalf of the

1st respondent-Election Commission and resisted the writ petition.

Standing Counsel denied all the allegations made by the petitioner

in the writ petition. On behalf of the 1 st respondent, it is submitted

that the petitioner has invoked Section 91A of the Kerala

Municipality Act and has challenged his disqualification. The

petitioner has sought stay of disqualification of his Councilorship of

Thalassery Municipality.

6. In the Original Petition, the petitioner moved

I.A.No.24/2023, which was considered by the Election

Commission and the Election Commission has passed a reasoned

and speaking order as per Ext.P9. During the proceedings before

the Kerala State Election Commission, the petitioner had no case

that his constituency is not within the limits of Mahe Police Station.

The petitioner cannot now put up a new case before this Court to W.P.(C) No.14663 of 2023

impugne Ext.P9, urged the Standing Counsel for the 1 st

respondent.

7. I have heard the learned Counsel for the petitioner and

the learned Standing Counsel representing the 1 st respondent.

I have also heard the learned Standing Counsel for respondents 2

and 3.

8. The petitioner was disqualified for remaining

consistently absent from the Council Meetings. The petitioner

therefore invoked Section 92(2) of the Kerala Municipality Act,

1994. The petitioner sought interim order permitting him to

continue and function as Councilor of Ward No.17 till a final

decision is taken in the original petition.

9. It is the specific case of the petitioner that his

constituency/Ward No.17 is not within the limits of the Mahe Police

Station. It is evident from Ext.P9 that one of the reasons relied on

by the State Election Commission for rejecting I.A.No.24/2023

filed by the petitioner is that the petitioner will not be able to W.P.(C) No.14663 of 2023

discharge his duties as Councilor since there are restraints on the

petitioner from entering into the Mahe Police Station limits.

10. If the petitioner's constituency is outside the territorial

limits of Mahe Police Station, then the reasoning of the 1 st

respondent contained in Ext.P9 will not be sustainable. The

petitioner being an elected representative of the Municipality, I am

of the view that the specific point now raised by the petitioner

should be considered by the State Election Commission.

In the circumstances, the writ petition is disposed of directing

the 1st respondent to reconsider I.A.No.24/2023 filed by the

petitioner and pass appropriate orders thereon afresh after giving

an opportunity of hearing to the petitioner. To enable the 1 st

respondent to pass orders afresh, Ext.P9 is set aside.

Sd/-

N. NAGARESH JUDGE ams W.P.(C) No.14663 of 2023

APPENDIX OF WP(C) 14663/2023

PETITIONER EXHIBITS Exhibit-P1. A TRUE COPY OF THE F.I.R IN CRIME NO.

0183 OF 2022 OF THE NEW MAHI POLICE STATION DATED 21.02.2022 Exhibit-P2. A TRUE COPY OF THE DECISION OF THE 3RD RESPONDENT NO. G2.9313/22 DATED 30.04.2022 Exhibit-P3. A TRUE COPY OF THE LETTER NO.

B3/81/2022/SEC DATED 21.12.2022 SEND BY THE STATE ELECTION COMMISSION TO THE 2ND RESPONDENT Exhibit-P4. A TRUE COPY OF THE LETTER NO. G2.9313/22 DATED 05.01.2023 SEND BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit-P5. A TRUE COPY OF THE COUNCIL MEETING DATED 31.01.2023 CONDUCTED BY THE 3RD RESPONDENT Exhibit-P6. A TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 2981/2023 DATED 30.01.2023 Exhibit-P7. A TRUE COPY OF THE RTI REPLY DATED 21.02.2023 Exhibit-P8. A TRUE OFFICE COPY OF THE INTERIM APPLICATION FILED BEFORE THE 1ST RESPONDENT DATED 16-02-2023 Exhibit-P9. A TRUE COPY OF THE IMPUGNED ORDER DATED 04-04-2023 PASSED BY THE 1ST RESPONDENT