Kerala High Court
Aziz vs State Election Commission on 9 November, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942
WP(C).No.23434 OF 2020(D)
PETITIONER/S:
1 AZIZ,
AGED 62 YEARS,
S/O MOIDEEN KUNJU SALI,
KULATHUNGAL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
2 NABEEZA,KULATHUNGAL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
3 SHYNU,KULATHUNGAL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
4 NISHAD,
KULATHUNGAL, PERUNNA.P.O,
CHANGANACHERRY,KOTTAYAM DISTRICT.
5 NISHILA,
KULATHUNGAL, PERUNNA.P.O,
CHANGANACHERRY, KOTTAYAM DISTRICT.
6 HARUN RASHEED,
MURUKKUVELIPARAMBIL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
7 ZEENATH,
MURUKKUVELIPARAMBIL,
PERUNNA.P.O.,
CHANGANACHERRY, KOTTAYAM DISTRICT.
8 ABDUL KHADER,
NERETTUPURAM PUTHUPARAMBIL,
PERUNNA.P.O.,
CHANGANACHERRY, KOTTAYAM DISTRICT.
W.P.(C) No.23434 of 2020
2
9 RASHEEDA,
NERETTUPURAM PUTHUPARAMBIL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
10 SHEMIM KHADER,
NERETTUPURAM PUTHUPARAMBIL,
PERUNNA.P.O.,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
11 DR.ANTONY GEORGE JOSEPH,MALIYIL,
CHANGANACHERRY.P.O.,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
12 MARIYAMMA ANTONY,MALIYIL,
CHANGANACHERRY.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
13 DR.SUNIL ANTONY,MALIYIL,
CHANGANACHERRY.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
14 REKHA G.MURIKKEN,MALIYIL,
CHANGANACHERRY.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
15 DR.SUJITH ANTONY,MALIYIL,
CHANGANACHERRY.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
16 SULFEEKER HAMEED,THOTTATHIL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
17 BEENA,THOTTATHIL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
W.P.(C) No.23434 of 2020
3
18 SULU,THOTTATHIL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
19 MUHAMMED NIZAM,
VALUPARAMBIL,
PATTATHIMUKKU,
PERUNNA.P.O, CHANGANACHERRY,
KOTTAYAM DISTRICT.
20 NAZEEBA.A.N,
VALUPARAMBIL,
PATTATHIMUKKU, PERUNNA.P.O,
CHANGANACHERRY,KOTTAYAM DISTRICT.
21 ADIL SHAJI,
VALUPARAMBIL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
22 RAZIYA SHAJI,
VALUPARAMBIL,
PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
23 THANSEEM.A.P,
ALAYIL AYSHA MANZIL,
PERUNNA.P.O, CHANGANACHERRY,
KOTTAYAM DISTRICT.
24 PRAVEENA,
ALAYIL AYZHA MANZIL,
PERUNNA.P.O, CHANGANACHERRY,
KOTTAYAM DISTRICT.
25 N.SALIM,
KALUNKIL, PERUNNA.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
26 BEEVIYAMMA KASIM,
ARATTUCHIRA(PUTHUPARAMBU),
PATTATHIMUKKU,
PERUNNA.P.O, CHANGANACHERRY,
KOTTAYAM DISTRICT.
W.P.(C) No.23434 of 2020
4
27 SUHARA KHALID,
THOPPIL KUNNAKKAD,
FATHIMAPURAM.P.O,
CHANGANACHERRY,
KOTTAYAM DISTRICT.
BY ADVS.
SRI.JOHN VARGHESE
SRI.A.L.GEORGE
RESPONDENT/S:
1 STATE ELECTION COMMISSION
'JANAHITHAM',VIKAS BHAVAN..P.O,
THIRUVANANTHAPURAM-695033.
2 CHANGANACHERRY MUNICIPALITY,
MUNICIPAL OFFICE,CHANGANACHERRY-686101,REPRESENTED
BY ITS SECRETARY.
3 THE MUNICIPAL ENGINEER(AERO),
MUNICIPAL OFFICE,CHANGANACHERRY-686101.
4 REGIONAL JOINT DIRECTOR,
OFFICE OF THE REGIONAL JOINT DIRECTOR,
URBAN AFFAIRS,DEPARTMENT,LAL BAHADUR SASTRI,STADIUM
BUILDING,KOLLAM-691001.
R1 BY SHRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
BY SRI.M.P.MADHAVAN KUTTY, SC
BY SRI.K.J.MANURAJ, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.23434 of 2020
5
P.B.SURESH KUMAR, J.
-----------------------------------------
W.P.(C) No.23434 of 2020
-----------------------------------------------
Dated this the 9th day of November, 2020.
JUDGMENT
Petitioners were persons included in the electoral roll of Ward No.12 of Changanassery Municipality. When draft electoral roll of Ward No.12 of Changanassery Municipality for the ensuing election was published, objections were raised by third parties as regards the right of the petitioners to be included in the electoral roll. The petitioners preferred explanations to the objections raised as to their right to be included in the electoral roll. Exts.P1 to P7 are the objections preferred by the petitioners. It is stated by the petitioners that the Electoral Registration Officer has ordered to remove the names of the petitioners from the electoral roll, upholding the objections of the third parties. One Ziyad Abdul Rahman filed an appeal before the fourth respondent challenging the decision of the Electoral Registration Officer, and the said appeal was rejected by the appellate authority in terms of Ext.P8 communication stating that he has no locus standi to challenge the decision of the Electoral Registration Officer. The petitioners thereupon preferred representations before the State Election Commission W.P.(C) No.23434 of 2020 6 concerning the decision of the Electoral Registration Officer. Exts.P9 to P19 are the representations preferred by the petitioners before the State Election Commission in this regard. This writ petition is filed thereafter alleging non consideration of Exts.P9 to P19 representations, and seeking orders for retaining the names of the petitioners in the electoral roll of Ward No.12 of Changanassery Municipality.
2. A statement has been filed by the State Election Commission enclosing a report of the Electoral Registration Officer. In the report of the Electoral Registration Officer produced by the State Election Commission, it is stated, among others, that the petitioners are not persons residing ordinarily within the limits of Ward No.12; that the said fact has been admitted by them in the objections filed before the Electoral Registration Officer and that it is in the said circumstances that they were removed from the electoral roll of Ward No.12.
3. Heard the learned counsel for the petitioners, the learned counsel for the Electoral Registration Officer as also the learned Standing Counsel for the State Election Commission.
4. Persons who are residing ordinarily within the limits of the ward alone are entitled to be included in the electoral roll of the ward. The petitioners do not dispute the said proposition. The explanations preferred by the petitioners to the objections raised by third parties as regards their right to be included in the electoral roll, as made available by the petitioners in the writ petition indicate that they are not presently residing within the limits of Ward No.12. Their case is W.P.(C) No.23434 of 2020 7 that they are residing temporarily elsewhere and their names cannot, therefore, be removed from the electoral roll. It is beyond dispute that the Electoral Registration Officer concerned has taken the decision in terms of Rule 20 of the Kerala Municipalities (Registration of Electors) Rules, 1994. Rule 22 of the said Rules provides a right of appeal before the fourth respondent against decisions taken under Rule 20 of the Rules. The petitioners have not chosen to prefer an appeal under Rule
22. Had the petitioners preferred an appeal under the said provision, the appellate authority could have certainly examined the sustainability of the contention taken by them, having regard to the facts. The contention taken by the petitioners to demonstrate that the decision of the Electoral Registration Officer is unsustainable is a contention which is to be examined on a case to case basis, having regard to the facts, and such an adjudication is impermissible in a proceedings under Article 226 of the Constitution.
In the said view of the matter, I do not find any merit in the writ petition and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE rkj W.P.(C) No.23434 of 2020 8 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT DT.15.06.2020.
EXHIBIT P2 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 6TH PETITIONER BEFORE THE 2ND RESPONDENT DT.15.06.2020.
EXHIBIT P3 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 8TH PETITIONER BEFORE THE 2ND RESPONDENT DT.15.06.2020.
EXHIBIT P4 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 13TH PETITIONER BEFORE THE 2ND RESPONDENT DT.15.06.2020.
EXHIBIT P5 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 16TH PETITIONER BEFORE THE 2ND RESPONDENT DT.15.06.2020.
EXHIBIT P6 TRUE COPY OF THE OBJECTION SUBMITTED ON BEHALF OF THE PETITIONERS 19 AND 20 BEFORE THE 2ND RESPONDENT DT.15.062020.
EXHIBIT P7 TRUE COPY OF THE OBJECTION SUBMITTED BY THE 23RD PETITIONER BEFORE THE 2ND RESPONDENT DT.15.06.2020.
EXHIBIT P8 TRUE COPY OF THE ORDER DT.16-10-2020 ISSUED BY THE 4TH RESPONDENT TO SRI.ZIYAD ABDUL REHMAN.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS 1 TO 5 BEFORE THE 1ST RESPONDENT DT.NIL.
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS 6 AND 7 BEFORE THE 1ST RESPONDENT DT.21-10-2020.
EXHIBIT P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS 8 TO 10 BEFORE THE 1ST RESPONDENT DT.21-10-2020 EXHIBIT P12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS 11 TO 15 BEFORE THE 1ST RESPONDENT DT.21-10-2020.W.P.(C) No.23434 of 2020 9
EXHIBIT P13 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS 16 TO 18 BEFORE THE 1ST RESPONDENT DT.NIL.
EXHIBIT P14 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS 19 AND 20 BEFORE THE 1ST RESPONDENT DT.21-10-2020.
EXHIBIT P15 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS 21 AND 22 BEFORE THE 1ST RESPONDENT DT.21-10-2020.
EXHIBIT P16 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS 23 AND 24 BEFORE THE 1ST RESPONDENT DT.21-10-2020.
EXHIBIT P17 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 25TH PETITIONER BEFORE THE 1ST RESPONDENT DT.21-10-2020.
EXHIBIT P18 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 26TH PETITIONER BEFORE THE 1ST RESPONDENT DT.21-10-2020.
EXHIBIT P19 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 27TH PETITIONER BEFORE THE 1ST RESPONDENT DT.22-10-2020.