Disposed

Yeldho M.E., v. Kerala State Election Commission

Kerala HC16 Nov 2020WP(C)/24988/2020

Case brief

AI extract

What is this about?

A petitioner sought a declaration and direction to permit continuation of government health projects approved before the election announcement, citing Model Code of Conduct restrictions. The court declined specific relief but directed the State Election Commission to consider the projects given extraordinary circumstances.

What did the court decide?

Petition partly allowed; Writ petition disposed with directions to State Election Commission to consider government request to commence projects.

Yeldho M.E., Vs Kerala State Election… — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942

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WP(C).No.24988 OF 2020(S)

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PETITIONER:

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YELDHO M.E., AGED 35 YEARS S/O. EASO, MANAYATHUMALIL HOUSE, ROSE GARDER, NADATHARA P.O. THRISSUR 680 751.

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BY ADVS. SRI.S.NIDHEESH SMT.JISHY P.S.

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RESPONDENTS:

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1 KERALA STATE ELECTION COMMISSION JANAHITHAM, VIKASBHAVAN, THIRUVANANTHAPURAM 695 033.

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2 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM 695 001.

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R1 BY SHRI.MURALI PURUSHOTHAMAN, STANDING COUNSEL R2 BY SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.24988 OF 2020(S)

JUDGMENT

S.MANIKUMAR,CJ

Mr.Yeldho.M.E., a practising lawyer, has filed the instant public interest writ petition for a mandamus directing the State Election Commission to permit the approved projects of the State, where administrative sanction had been granted to be continued.

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Petitioner has sought for a declaration that the State Election Commission cannot insist to stop the approved projects of the State on the basis of the questions and answers in the Code of Conduct. Petitioner has also sought for a declaration against the State Election Commission not to formulate the additional restrictions, which are not in the Code of Conduct formulated by the National Election Commission.

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Petitioner has also sought for a direction against the State Election Commission to permit the ongoing and approved projects and the projects yet to be commenced by the State by considering the extraordinary situation in the State due to COVID-19 and severe flood.

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As per Exhibit P5, Government have approved administrative sanction for the development of primary facilities in 21 hospitals under the Health Department. Government have also accorded administrative sanction for 492 projects on 4.11.2020 under the “Rebuild Kerala Initiative” vide G.O. (MS)

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WP(C).No.24988 OF 2020(S)

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No.170/2020 of the Local Self Government Department.

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COVID-19 pandemic situation is one of the reasons assigned by the petitioner for the delayed action or completion of the projects, as the case may be, and that the directives issued by the Code of Conduct should not impair the projects, wherein administrative sanction has already been granted and continue to be in force.

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Mr.Nidheesh S., learned counsel for petitioner, made submissions on the averments made above and in this regard, invited the attention of this Court to question No.18 in Exhibit P3 and the answer provided thereto and also question No.15 in the Model Code of Conduct to be followed in the election for the Local Self Government Institutions, State Election Commission, Kerala 2020.

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Mr.Murali Purushothaman, learned Standing Counsel for State Election Commission, further submitted that a desk is opened in the office of the State Election Commission, Thiruvananthapuram, to address the issues where permission is required from the State Election Commission. He further submitted that at the District level also, sufficient provision is made to address representations, received from the competent authorities on any issue/s.

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Heard the learned counsel appearing for parties and perused the materials available on record.

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WP(C).No.24988 OF 2020(S)

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Process of election has commenced w.e.f. 6.11.2020 and the Model Code of Conduct has come into force. Question No.18 in Exhibit P3 and the answer to the same are extracted:

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“Q.18. Suppose work order has been issued in respect of a scheme or a

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programme ? Can it be started after announcement of election programme ? Ans. Work shall not be started in respect of which work order has been issued before announcement of election but the work has actually not started in the field. If a work has actually started in the filed that can be continued.”

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Model Code of Conduct to be followed for the election to the Local Self Government Institutions deals with general contract, meetings, procession, polling day etc. and it also deals with certain questions and answers explaining model code of conduct. Question No.15 and answer to the same are extracted hereunder:

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“ Whether the projects which have got sanction for construction by government or local bodies fund can be commenced after the date of declaration of election ?

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Such constructions shall not be commenced after the declaration of election. However, the already commenced works are not to be immobilised during the election period.”

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Thus, reading of the above questions and answers in the

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WP(C).No.24988 OF 2020(S)

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Model Code of Conduct show that the constructions shall not commence after the declaration of election, however, the already commenced works are not to be immobilised during the election period. Exhibit P5 is the Government Order [G.O(ORD) No.2040/2020 HWD dated 3.11.2020] by which the Health and

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Family Welfare Department has granted administrative sanction to various projects. Said Government Order is extracted below:

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Government of Kerala

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Summary

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Health and Family Welfare Department – Health Department – 50548080066 lump sum heading – administrative sanction is granted to various projects – ordered.

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Health and Family Welfare (P) Department GO (ORD) No. 2040/2020 HWD dated 3/11/2020 Thiruvanathapuram.

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ORDER

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Government is intending to develop the primary facilities of selected 21 hospitals under the Health Department, in order to facilitate better patient care and treatment. The required amount of 42.70 Crores of Rupees is available in the lump sum heading 50548080066- details of the projects and required amount is given below.

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SI No.	Name of work	Amount
in crores
1	VALAD PHC BUILDING, MANANTHAVADY	5.00

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WP(C).No.24988 OF 2020(S)

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2	THENGILAKADAV CANCER CENTRE, PROPER FUNCTIONING, KUNNAMANGALAM	1.00
3	NARIKUNNI GOV COMMUNITY HEALTH CENTRE , KODUVALLI	3.00
4	KODUVALLI COMMUNITY HEALTH CENTRE, KODUVALLI	3.00
5	MADAVOOR FAMILY HEALTH CENTRE, KODUVALLI	1.5
6	KATTIPARA FAMILY HEALTH CENTRE, KODUVALLI	1.50
7	PONMUNDAM PANCHAYATH PHC BUILDING CONSTRUCTION, THANOOR	2.00
8	UNNIYAL THEVAR KADAPPURAM PHC BUILDING CONSTRUCTION, THANOOR	1.00
9	MUTHUMALA PRIMARY HEALTH CENTRE, PATTAMBI	1.00
10	KOZHINJAMBARA GOV HOSPITAL, CHITTUR	2.00
11	MADAKKATHARA PHC NEW BUILDING, OLLUR	1.00
12	KOORKKANCHERY PHC NEW BUILDING, OLLUR	1.50
13	PATTIKKAD ELAPALAM FHC NEW BUILDING, OLLUR	1.00
14	MURIYAD PANCHAYATH ANANDAPURAM FAMILY HALTH CENTRE	1.00

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WP(C).No.24988 OF 2020(S)

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15	KARALAM GRAMAPANCHAYATH HOMEO HOSPITAL,IRINJALAKKUDA	0.50
16	PALLURUTHI TALUK HOSPITAL NEW BLOCK, THRIPUNITHURA	5.00
17	THIRUVARPU PHC CONSTRUCTION, ETTUMANOOR	4.00
18	CHETTIKULANGARA GRAMAPANCHAYATH EREZKA VADAKKU SUB CENTRE BUILDING, KAYAMKULAM	0.35
19	KUNDALLUR GRAMAPANCHAYATH WARD 13, KOCHI JETTI SUB CENTRE, KAYAMKULAM	0.35
20	EZHUMATTOOR COMMUNITY HEALTH CENTRE BUILDING,RANNI	2.00
21	THEVALAKKARA PHC BUILDING, CHAVARA	5.00

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TOTAL 42.7

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Matter is examined by the Government and hence administrative sanction is hereby ordered for the above 21 projects of the health department for Rupees 427000000/-. The required amount will be given to the concerned head of account from the lump sum heading 50548080066 by the finance department.

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The health director and homeo director will prepare detailed estimates for the above projects and submit to government.

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By order of the Governor, Rajan N Kobraghade Principal Secretary.”

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WP(C).No.24988 OF 2020(S)

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Perusal of the same shows that, even before the announcement of the elections for Local Self Government Institutions and the Model Code of Conduct coming into force, Government have intended to develop the primary facilities of selected 21 hospitals under the Health Department, in order to facilitate better patient care and treatment. A sum of Rs.42.70 Crores is also available.

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No sooner the election is announced, the Model Code of Conduct comes into force and all the political parties, candidates contesting in the Local Self Government Institutions, are bound to follow the Model Code of Conduct. This Court cannot issue any directions to the petitioner, as prayed for.

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However, having regard to the COVID-19 pandemic situation and the need for improving facilities in the hospitals for better patient care and treatment, and also taking note of the fact that a sum of Rs.42.70 Crores is already available, it is for the Government to take up the matter with the State Election Commission, Thiruvananthapuram, for commencement of the projects mentioned in the Government Order - G.O(ORD) No.2040/2020 HWD dated 3.11.2020, as early as possible, and if any such request is made by the Secretary to the Government, Health and Family Welfare Department, though

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not a party respondent to the writ petition, Kerala State Election Commission, Thiruvananthapuram, respondent No.1, is directed to consider the same, in accordance with the rules.

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WP(C).No.24988 OF 2020(S)

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While declining the reliefs sought for in the writ petition, we hope that Kerala State Election Commission, Thiruvananthapuram, would consider the request, having regard to the fact that health is a facet of Article 21 of

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the Constitution of India.

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Writ petition is disposed of with the above directions.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

smv

JUDGE

WP(C).No.24988 OF 2020(S)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	COPY OF THE IDENTITY CARD ISSUED BY THE ELECTION COMMISSION OF INDIA HAVING NO. LCY1859149.
EXHIBIT P2	COPY OF THE MODEL CODE OF CONDUCT FOR THE GUIDANCE OF POLITICAL PARTIES AND CANDIDATES TAKEN FROM THE WEBSITE OF ELECTION COMMISSION OF INDIA.
EXHIBIT P3	COPY OF THE MODEL CODE OF CONDUCT FOR THE GUIDANCE OF POLITICAL PARTIES, FUNCTIONARIES AND CANDIDATES TAKEN FROM THE WEBSITE OF STATE ELECTION COMMISSION.
EXHIBIT P4	TRUE COPY OF THE MODEL CODE OF CONDUCT FOR THE ELECTION TO LOCAL SELF GOVERNMENTS INSTITUTION FOR THE YEAR 2020 TAKEN FROM THE WEBSITE OF STATE ELECTION COMMISSION IN MALAYALAM.
EXHIBIT P5	GO NO. 2040/2020 DATED 03/11/2020 OF THE HEALTH AND FAMILY WELFARE DEPARTMENT, WITH ITS ENGLISH TRANSLATION.

Yeldho M.E., v. Kerala State Election Commission

Case brief

What is this about?

What did the court decide?

Yeldho M.E., v. Kerala State Election Commission

Case brief

What is this about?

What did the court decide?

What the court decided

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