The Court dismissed a writ petition challenging the State Election Commission's refusal to consider the maintainability of an election petition (defection case) as a preliminary issue. Relying on precedent, it held the Commission must decide such issues during full trial and that no prejudice was caused to the petitioner.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 13TH DAY OF SEPTEMBER 2023/22ND BHADRA,1945 WP(C) NO. 21899 OF 2023
PETITIONER:
SMT.RADHIKA M., AGED 39 YEARS D/O. CHAATHU, MADAKKATTU VEEDU, KUMARANELLOOR P.O., PALAKKAD, PIN-679 552 (MEMBER, WARD NO.16, KAPPUR GRAMA PANCHAYAT)
BY ADVS. K.SUJAI SATHIAN PREETHI. P.V. M.V.BALAGOPAL GOURI MEEMPAT SANGEETHA SREEKUMAR T.SETHUMADHAVAN (SR.)
RESPONDENTS:
1 KERALA STATE ELECTION COMMISSION REPRESENTED BY ITS SECRETARY CORPORATION OFFICE COMPOUND, LMS JUNCTION THIRUVANATHAPURAM, PIN – 695033
2 ABOOBACKER P.K., AGED 40 YEARS, S/O. KHADHAR, PARAYIL, KOTTAPULLY, KAPPUR P.O., PALAKKAD, PIN – 679552 (MEMBER, WARD NO.6, KAPPUR GRAMA PANCHAYAT)
BY ADV SRI.DEEPU LAL MOHAN, STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.21899/2023
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N. NAGARESH, J.
W.P.(C) No.21899 of 2023
Dated this the 13th day of September, 2023
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
The petitioner, who is an elected Member of Kappur Grama Panchayat, seeks to quash Ext.P5 order of the 1st respondent-Kerala State Election Commission and to declare that the election petition OP No.35/2022 before the 1st respondent is not maintainable.
and Scheduled Tribes. The petitioner belongs to “Paraya” community which is a Scheduled Tribe. The petitioner contested as independent candidate with “Autorickshaw” as election symbol.
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that after contesting the election against LDF and UDF candidates and winning, the petitioner joined LDF and gave Rule 3(2) declaration to that effect and that the action of the petitioner was against the Kerala Local Authorities (Prohibition of Defection) Act, 1999 and warrants disqualification.
W.P.(C) No.21899/2023
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Ext.P1 OP is procedurally irregular, the OP cannot be proceeded any further.
W.P.(C) No.21899/2023
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W.P.(C) No.21899/2023
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with regaed to disqualification has to be decided after a full trial.
Commission, Thiruvananthapuram and others [2015 (2) KHC 231] , this Court held that a particular adjudicatory forum, either acting as a court or as a quasi judicial authority, has necessary power to entertain an issue for adjudication. The alleged frivolity or lack of merit of the matter does not detain it from adjudicating the issue. Once the constitutional court comes to a conclusion that the authority has necessary power of jurisdiction to adjudicate, it cannot invoke Article 226 of the Constitution of India to interdict the said power. Any exercise of such power amounts to usurpation or abrogation of adjudicatory powers of a competent forum which is not permissible in law.
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case, the refusal by the Election Commission to adjudicate the maintainability of the OP as a preliminary issue does not prejudice the petitioner in any manner.
The writ petition fails for the afore reasons and consequently, the writ petition is dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/31.07.2023
W.P.(C) No.21899/2023
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APPENDIX OF WP(C) 21899/2023
PETITIONER’S EXHIBITS
| Exhibit P1 | A TRUE | COPY | OF PETITION | IN O.P | 35/2022 |
|---|---|---|---|---|---|
| BEFORE | THE | HONORABLE S | TATE | ELECTION | |
| COMMISS | ION | OF | KERALA, | ||
| THIRUVA | NANTH | APURAM DATED | 25.11 | .2022 | |
| Exhibit P2 | A TRUE |
COPY |
OF WRITTEN |
STAT |
EMENT IN |
| O.P 35/ | 2022 | BEFORE THE H | ONORAB | LE STATE | |
| ELECTIO | N |
COMMISSION | OF | KERALA, | |
| THIRUVA | NANTH | APURAM DATED | 09.01 | .2023 | |
| Exhibit P3 | A TRUE | COPY | OF I.A 39/ | 2023 | FILED IN |
| O.P 35/ | 2022 | BEFORE THE H | ONORAB | LE STATE | |
| ELECTIO | N |
COMMISSION | OF | KERALA, | |
| THIRUVA |
NANTH |
APURAM DATED |
18.04 |
.2023 |
|
| Exhibit P4 | A TRUE |
COPY |
OF COUNTER |
AFFI |
DAVIT TO |
| I.A 39 | /2023 | FILED IN | O.P | 35/2022 | |
| BEFORE | THE | HONORABLE S | TATE | ELECTION | |
| COMMISS | ION | OF | KERALA, | ||
| THIRUVA | NANTH | APURAM DATED | 02.05 | .2023 | |
| Exhibit P5 | A TRUE | COPY | OF ORDER DA | TED | 11/5/2023 |
| IN I.A | 39/2 | 023 FILED I | N O.P | 35/2022 | |
| BEFORE | THE | HONORABLE S | TATE | ELECTION | |
| COMMISS | ION | OF | KERALA, | ||
| THIRUVA | NANTH | APURAM |
3 issues framed by the court
Whether the writ petition challenging the dismissal of the preliminary writ application on maintainability is maintainable.
Whether the Election Commission has the power to decide maintainability as a preliminary issue without full trial.
Whether the refusal to decide maintainability as a preliminary issue prejudices the petitioner given Rule 5 timelines.
Colour shows how this judgement treated each authority
Unni K.G. v. N. Abdul Rasheed and anotherFollowed¶40
[2010 (1) KHC 176]
Abdul Gafoor T.P. v. Kerala State Election Commission, Thiruvananthapuram and othersFollowed¶44
[2015 (2) KHC 231]
3 provisions across 2 enactments
Smt. Radhika M.
Kerala State Election Commission
Aboobacker P.K.
N. Nagares
Judge
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
