Dismissed

The Kerala Panchayat Employees Organization v. the State of Kerala

Kerala HC3 Feb 2020WP(C)/1083/2020

Case brief

AI extract

What is this about?

The High Court of Kerala heard writ petitions challenging an order by the State Election Commission to publish the 2015 voter list as the final electoral roll for 2020 Local Body Elections without a new enumeration. The petitioners argued this violated the statutory requirement to publish a draft roll for verification before finalization. The court rejected these claims, holding that the relevant

What did the court decide?

The writ petitions challenging the notification were dismissed on the ground that the statutory provisions are directory.

The Kerala Panchayat Employees Organization Vs the State of Kerala — Election Law | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE AMIT RAWAL

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MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941

¶5

WP(C).No.815 OF 2020(B)

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PETITIONER/S:

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1 SOOPPY NARIKKATTERI AGED 59 YEARS S/O. KUNJABDULLA HAJI, THAYYIL HOUSE, CHELAKKADU P.O., KOZHIKODE-673 506.

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2 P.HASHIF MILL HOUSE, PETTA, FEROKE P.O., KOZHIKODE-673 631.

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BY ADVS. SRI.P.A.MOHAMMED SHAH SRI.C.R.SYAMKUMAR SRI.K.ARJUN VENUGOPAL SHRI.MUHAMMED JANAISE V. SHRI.ASWIN KUMAR M J SHRI.MOHAMED MUSTHAFA A.K. SMT.HELEN P.A. SRI.SHAHIR SHOWKATH ALI

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RESPONDENT/S:

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STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY, OFFICE OF THE STATE ELECTION COMMISSION, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695 033.

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R1 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM

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GOVERNMENT PLEADER SRI MANURAJ KJ

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2020, ALONG WITH WP(C).1083/2020(I), WP(C).1191/2020(Y), WP(C).1588/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.815/2020 & conn.cases

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¶17

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶18

PRESENT

¶19

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶20

MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941

¶21

WP(C).No.1083 OF 2020(I)

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PETITIONER/S:

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1 THE KERALA PANCHAYAT EMPLOYEES ORGANIZATION STATE COMMITTEE (REGISTER NO.G O (MS)59/2006/LSGD), RAJEEV BHAVAN, NEERAZHI LANE, PULIMOODU JUNCTION, THIRUVANANTHAPURAM, REPRESENTED BY ITS GENERAL SECRETARY MR. NAITO BABY AREEKAL.

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2 MUHAMMED BASHEER A. AGED 54 YEARS S/O. HAMSA, RESIDING AT ANDIKKODAN HOUSE, PUTHANANGADI P.O., ANGADIPURAM, MALAPPURAM-679 321.

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BY ADVS. SRI.ANOOP.V.NAIR SHRI.NIKITHA ANTONY

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE STATE ELECTION COMMISSION OFFICE OF THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, KERALA-695 033 REPRESENTED BY ITS SECRETARY.

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3 THE SECRETARY STATE ELECTION COMMISSION, OFFICE OF THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, KERALA-695 033.

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4 THE CHIEF ELECTORAL OFFICER OFFICE OF THE CHIEF ELECTORAL OFFICER, THIRUVANANTHAPURAM-695 033.

¶31

W.P.(C)No.815/2020 & conn.cases

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5 THE DIRECTOR OF PANCHAYATS DIRECTORATE OF PANCHAYATS, THIRUVANANTHAPURAM-695 033.

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R2 TO R4 SRI.MURALI PURUSHOTHAMAN, SC GOVERNMENT PLEADER SRI.MANURAJ.K.J.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2020, ALONG WITH WP(C).815/2020(B), WP(C).1191/2020(Y), WP(C).1588/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.815/2020 & conn.cases

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¶38

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶39

PRESENT

¶40

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶41

MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941

¶42

WP(C).No.1191 OF 2020(Y)

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PETITIONER/S:

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A.PRASAD, AGED 38 YEARS S/O.LATE VISWANATHAN NAIR, RESIDING AT PRASADAM, VADUKKOOT HOUSE, CHETTUPUZHA.P.O, THIRUSSUR-68062 COUNCILLOR, DIVISION 54, THRISSUR CORPORATION

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BY ADV. SRI.C.R.REKHESH SHARMA

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RESPONDENT/S:

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KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, OFFICE OF THE STATE ELECTION COMMISSION, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695033

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SRI.MURALI PURUSHOTHAMAN, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2020, ALONG WITH WP(C).815/2020(B), WP(C).1083/2020(I), WP(C).1588/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶50

W.P.(C)No.815/2020 & conn.cases

¶51

¶52

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶53

PRESENT

¶54

THE HONOURABLE MR. JUSTICE AMIT RAWAL

¶55

MONDAY, THE 03RD DAY OF FEBRUARY 2020 / 14TH MAGHA, 1941

¶56

WP(C).No.1588 OF 2020(W)

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PETITIONER/S:

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N. VENUGOPAL AGED 70 YEARS S/O. NEELAKANDA PILLA, SREELAKAM,PANDARACHIRA, 1ST CROSS ROAD, KADAVANTHRA SOUTH, PIN-682 020

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BY ADVS.

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SRI.T.K.AJITHKUMAR (VALATH) SRI.P.K.SAJEEVAN

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001

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2 THE STATE ELECTION COMMISSION,

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KERALA, REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM THIRUVANANTHAPURAM-695 033

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3 THE SECRETARY, STATE ELECTION COMMISSION, KERALA CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695 033

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4 THE ELECTION COMMISSION OF INDIA, REPRESENTED BY ITS SECRETARY, NIRVACHAN SADAN, ASOKA ROAD, NEW DELHI-110 001

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R1 BY SRI.P.NARAYANAN, SENIOR GOVT. PLEADER R2-3 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R4 BY SRI.MURALI PURUSHOTHAMAN, SC,ELE.COMMN.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.02.2020, ALONG WITH WP(C).815/2020(B), WP(C).1083/2020(I), WP(C).1191/2020(Y), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.815/2020 & conn.cases

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JUDGMENT

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The captioned writ petitions are filed seeking for a direction to the State Election Commission to prepare the electoral roll for the Local Body Election 2020, keeping the electoral roll of Lok Sabha Election 2019 as a draft and final electoral roll. Since the issues are typical in nature, I heard them together and propose to pass a common judgment. Facts and documents in W.P.(C)No.815/2020 are relied upon to dispose of the writ petitions.

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The State Election Commission issued an order dated 4.1.2020 publishing the voter list used in 2015 General Elections for the purpose of holding the general election for the Local Self Government Institutions. Petitioners, being the voters of various wards of Panchayats as well as the Municipalities, have assailed the aforementioned notification on the ground that, it is not in accordance with the provisions of the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994. Section 16 (2) of the Kerala Panchayat Raj Act envisages draft electoral roll to be published in the respective Panchayat offices and the

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W.P.(C)No.815/2020 & conn.cases

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headquarters of the block and the taluk office, for facilitating the voters to verify the same and only thereafter final list would be prepared. The impugned action of the Election Commission in preparing the list of voters on the basis of 2015 Election is wholly irrational and without basis in as much as in the year 2019, General Lok Sabha Elections were held and data of the voters list is already available. No explanation has come forth as to how and under what manner the voters list of 2015 is being taken into consideration. The aforementioned list has been promulgated for the forthcoming election to Local Bodies, to be conducted during the month of October 2020, thus there is ample time for the Commission to undertake the task of revision of the electoral rolls. The exercise of renewal of the electoral rolls for the purpose of Assembly elections held in 2016 as well as the Lok sabha election 2019 has been undertaken. There is increase of voters and therefore, the notification cannot withstand the test of reasonability or judicial scrutiny of this Court and it is unbecoming of the Election Commission, in promulgating

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W.P.(C)No.815/2020 & conn.cases

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the voters list on the basis of data base of 2015.

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Section 83 of the Municipality Act and Section 146 of the Panchayat Raj Act empower the Election Commission to prepare the electoral rolls of the Municipality or the Panchayat by adopting existing electoral rolls of the Legislative Assembly constituency without conducting any enumeration.

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Rules 3 to 7 of the Kerala Panchayat Raj Act (Registration of Electors) Rules 1994 prescribe the complete procedure for preparation of the rolls in parts, order of name, information to be supplied by occupants of the dwelling houses and appointment of enumerators, access to certain registers, publication of roll in draft etc. etc. Similar is the procedure prescribed for inviting claims and objections rejection thereof, enquiry, finalisation and publication of the roll. In the absence of following any aforementioned procedure, the impugned notification is unsustainable and liable to be quashed, as it lacks rationality.

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Per contra, learned Standing Counsel appearing for the State Election Commission supports the promulgation of

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W.P.(C)No.815/2020 & conn.cases

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the notification on the premise that the Election Commission has been constituted under Articles 243K(4) and 243ZA of the Constitution of India for the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to the Panchayats/Muncipalities. The General Elections to the Local Self Government Institutions in Kerala except Mattannur Municipality was held on 2.11.2015 and 5.11.2015 and the duration of the present LSGIs would be over on 11.11.2020. For the preparedness of the election, the State Election Commission has issued instructions to the Electoral Registration Officers for preparation and revision of electoral rolls in the State. Ext.P1 is one such instruction issued by the State Election Commission to all the District Election Officers, the Electoral Registration Officers and other election related officers. The correctness of Ext.P1 was disputed to be incomplete as it does not contain Annexure 1 and 2 attached thereto, which envisage the procedure to be followed by the officers including the objections, hearings etc., the writ petitions are liable to be

¶86

W.P.(C)No.815/2020 & conn.cases

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dismissed on the aforesaid ground alone.

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The next contention is that a person who have attained the age of 18 years as on 1^st January 2020 and satisfies the conditions of electoral roll as per the provisions of Section 20 of the Kerala Panchayat Raj Act, 1994 and Section 76 of the Kerala Municipality Act, 1994 can be enrolled in the voters list. The last date for submitting claims/applications for inclusion of names and objections to the draft electoral roll is 14^th of February 2020. Correction of the entries and transposition of names in the electoral roll can be submitted online and the final electoral roll is contemplated to be published on 28^th of February, 2020. The said electoral roll would be further revised before the General Election in terms of Section 22 (2) (I) of the Kerala Panchayat Raj Act, 1994 and Section 78 (2) (I) of the Kerala Municipality Act, 1994. The inclusion of names in the electoral roll is a continuous process de hors the fact that there are election or no elections.

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The State Election Commission felt it inevitable to create its own database of photo affixed electoral roll for Local Self

¶91

W.P.(C)No.815/2020 & conn.cases

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Government Institution election. In 2014, it was decided to adopt the electoral roll of the Assembly Constituencies with which the Election Commission of India went to poll for the 2014 Parliamentary elections and create a database of its own by segregation in accordance with the Local Self Government Institutions as the electoral roll for Assembly Constituencies are prepared by the Election Commission of India part-wise, each part covering a polling area which is different from the polling area of Local Self Government Institutions, which are ward wise. Thus, the electoral roll of the Assembly Constituencies was adopted to LSGI constituencies after undertaking a massive exercise, including house-to house verification and with the technical assistance of National Informatics Centre. This was published as a draft electoral roll for the 2015 General Elections to Local Self Government Institutions and thereafter the final electoral roll was published. In 2017, the State Election Commission had taken the decision to revise the existing electoral rolls of all Local Self Government Institutions and to use the same for the By-

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W.P.(C)No.815/2020 & conn.cases

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Elections and for the General Election in 2020, but no such revision of electoral rolls could be carried out, and now as per Ext.P1 the State Election Commission is proceeding with the revision of electoral rolls of all Local Self Government Institutions.

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The language of Section 146 (1) of Kerala Panchayat Raj Act and Section 83 (1) of the Kerala Municipality Act are directory in nature and not mandatory and urge this Court for dismissal of these writ petitions.

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I have heard learned Counsel for the petitioners and the learned Standing Counsel appearing for the State Election Commission and found that there is no force and merit in the contention of learned Counsel representing the petitioners in these writ petitions as the reasons are not one but many.

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Before assigning the reasons, it is appropriate to extract Section 146 (1) of the Panchayat Raj Act and 83(2) of the Kerala Municipality Act.

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Section 146 (1) of the Panchayat Raj Act:

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Special provision for adoption of Electoral roll of the Assembly Constituency: (1) Notwithstanding anything

¶102

W.P.(C)No.815/2020 & conn.cases

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contained in this Act, the State Election Commission may, if it deem necessary, prepare the electoral rolls of Panchayats without conducting an enumeration by adopting the electoral rolls of the Assembly Constituencies as in force for the purpose of election under this Act.”

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Section 83 (1) of the Kerala Municipality Act: Special provision for adopting the electoral roll of legislative constituency: (1) Notwithstanding anything contained in this Act, the State Election Commission may, if it deems necessary, for the purpose of election under this Act, prepare electoral rolls of the Municipality by adopting the existing electoral rolls of the legislative assembly constituency without conducting an enumeration.”

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On going through the aforementioned provisions, it is the prerogative of the State Election Commission to prepare the electoral roll of Panchayats and Municipalities by adopting the existing electoral roll of the Legislative Constituent Assemblies. Annexures 1 and 2 of the notification attached to the counter affidavit expressed the apprehension of not taking into consideration in the electoral rolls the qualifying date of the persons who have attained the age of 18 years as on 1.1.2020. For the reason best known, petitioner intentionally withheld Annexures 1 and 2. The guidelines

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W.P.(C)No.815/2020 & conn.cases

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issued under Annexures 1 and 2 are not emphatically denied in the reply affidavit filed during the course of hearing.

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The guidelines for Electoral Registration Officers on the procedure to be pursued on online application is also selfexplanatory. The website www.lsgd.election.kerala.gov.in is the platform for submission of online application. The aforementioned annexures also justify the provisions of Section 22 (1) of the Kerala panchayat Raj Act and Section 78 of the Municipality Act.

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In such circumstances, I do not think the petitioners have made out any case justifying interference of this Court by exercising the power of judicial review for quashing the notification by a consequential direction to the State Election Commission to undertake the task as per the provisions of Section 146 (1) of the Panchayat Raj Act and 83 (1) of the Municipality Act. The writ petitions stand dismissed. sd/

AMIT RAWAL

JUDGE

Jm/

W.P.(C)No.815/2020 & conn.cases

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APPENDIX OF WP(C) 815/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE ORDER ISSUED BY THE RESPONDENT DATED 4.1.2020 ALONG WITH ENGLISH TRANSLATION.

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EXHIBIT P2 THE TRUE COPY OF THE PETITION FILED BEFORE THE RESPONDENT DATED 8.1.2020.

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EXHIBIT P3

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THE TRUE COPY OF THE PETITION FILED BY THE GENERAL SECRETARY OF THE KERALA PANCHAYATH EMPLOYEES ORGANIZATION DATED 6.1.2020 ALONG WITH ENGLISH TRANSLATION.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R1 A

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THE PHOTOCOPY OF EXHIBIT P1,ORDER NO B1/30139/2019/SEC DATED 4/01/2020 ALONG WITH ITS APPENDIXES ISSUED BY THE RESPONDENT WITH ENGLISH TRANSLATION

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W.P.(C)No.815/2020 & conn.cases

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APPENDIX OF WP(C) 1083/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE RULES AND REGULATIONS/GUIDELINES PRESCRIBED BY THE 2ND RESPONDENT FOR THE REFERENCE OF ELECTORAL REGISTRATION OFFICERS AND BOOTH OFFICERS DATED 30.7.2014. EXHIBIT P2 TRUE COPY OF THE LIST OF LOCAL BODIES IN 2015 PUBLISHED BY LSGD. EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF ELECTION REPORT-2015 PUBLISHED BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE FINAL ELECTORATE DATED 4.4.2019 PUBLISHED BY THE 4TH RESPONDENT. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 4.1.2020 BEARING NO.B1/30139/2019/SEC ISSUED BY THE 2ND RESPONDENT TO LSGD OFFICERS. EXHIBIT P6 TRUE COPY OF THE NEWS REPORT DATED 7.1.2020 PUBLISHED BY THE 2ND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE NEWS REPORT IN RESPECT OF THE MATTER DATED 7.1.2020 PUBLISHED IN DEEPIKA DAILY. EXHIBIT P8 TRUE COPY OF THE NEWS REPORT IN RESPECT OF THE MATTER DATED 12.1.2020 IN MATHRUBHUMI DAILY. EXHIBIT P9 TRUE COPY OF THE NEWS REPORT IN RESPECT OF THE MATTER DATED 7.1.2020 IN MALAYALA MANORAMA DAILY.

¶131

W.P.(C)No.815/2020 & conn.cases

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APPENDIX OF WP(C) 1191/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE ORDER ISSUED BY THE RESPONDENT DATED 04.01.2020 HAVING NO.B1/30139/2019/SEC.

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EXHIBIT P2

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THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 10.01.2020 BEFORE THE RESPONDENT

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R1 A THE PHOTOCOPY OF EXHIBIT P1, ORDER NO B1/30139/2019/SEC DATED 4/01/2020 ALONG WITH ITS APPENDIXES ISSUED BY THE RESPONDENT WITH ENGLISH TRANSLATION

¶140

W.P.(C)No.815/2020 & conn.cases

¶141

¶142

APPENDIX OF WP(C) 1588/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE ORDER DAED 4.1.2020 ISSUED BY THE 3RD RESPONDENT

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EXHIBIT P1 (A) TRUE ENGLISH TRANSLATION OF THE EXHIBIT P1 EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 15.1.2002 SUBMITTED TO THE 2ND RESPONDENT

¶146

RESPONDENT'S/S EXHIBITS:

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EXHIBIT R3 A THE PHOTOCOPY OF EXHIBIT P1,ORDER NOB1/30139/2019/SEC DATED 4.1.2020 ALONG WITH ITS APPEDIXES ISSUED BY THE 2ND RESPONDENT WITH ENGLISH TRANSLATION.

The Kerala Panchayat Employees Organization v. the State of Kerala

Case brief

What is this about?

What did the court decide?

The Kerala Panchayat Employees Organization v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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