IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 1077 of 2009(M)
1. P.BERNAD, S/O. PATHROSE, AGED 45
... Petitioner
Vs
1. P.MANI,S/O.PATHROSE, JAYA MATHA BHAVAN
... Respondent
2. KERALA STATE ELECTION COMMISSION,
For Petitioner :SRI.K.B.PRADEEP
For Respondent :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :08/06/2010
O R D E R
ANTONY DOMINIC, J.
-------------------------
R.P.No.1077 of 2009
in
W.P.(C.) No.9156 of 2008 (M)
---------------------------------
Dated, this the 8th day of June, 2010
O R D E R
Heard learned counsel for the petitioner, learned counsel
appearing for the 1st respondent and also learned standing counsel
appearing for the 2nd respondent.
2. WP(C) No.9156/2008 was filed by the petitioner herein
challenging Ext.P3 proceedings of the 2nd respondent rejecting an
application made by him seeking to disqualify the 1st respondent.
When the writ petition came up for orders before this Court, on
behalf of the Election Commission it was reported that the 1st
respondent had tendered his resignation and that the same was
accepted. It was also stated that he raised a dispute that the
resignation was under compulsion and coercion; and the said
application was also rejected by the Election Commission as time
barred. Taking note of these developments, on the ground that
nothing further survived in the writ petition to be considered on
R.P.1077/2009 in WP(C) No.9156/2008
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merits, the writ petition was closed by judgment dated 01/09/2008.
3. It would now appear that subsequently against the
proceedings of the Election Commission rejecting the application
made by the 1st respondent challenging the order accepting his
resignation, a writ petition was filed by him and that this Court by
judgment dated 25/11/2008 disposed of the writ petition directing
reconsideration of the matter. Accordingly, the matter was
reconsidered and the Election Commission by its order dated
28/03/2009 restored the membership of the 1st respondent. The
Panchayat challenged the order passed by the 2nd respondent, in WP
(C) No.10387/2009. This Court by judgment dated 21/05/2009
dismissed the writ petition and that judgment is reported in Anad
Grama Panchayat v. Kerala State Election Commission (2009(2) KLT
874).
4. It is thereafter that the petitioner has filed this review
petition contending that in view of subsequent developments
noticed above, the judgment should be reviewed and that he should
be given an opportunity to contest the case on merits. He has also
explained the delay in approaching this Court mainly stating that he
R.P.1077/2009 in WP(C) No.9156/2008
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was unaware of the proceedings resulting the order of the Election
Commission and the judgment of this Court restoring membership
of the 1st respondent.
5. Counter affidavit has been filed by the 1st respondent
wherein this assertion made by the Review Petitioner has been
denied. It is stated that the petitioner had filed Annexure R1
impleading petition seeking impleadment in the proceeding before
the Election Commission and that the said application was rejected.
On this basis, the plea that the Review Petitioner was ignorant of the
proceedings is disputed.
6. Although from the counter affidavit filed by the 1st
respondent it would appear that the assertion of the petitioner that
he was unaware of the proceedings before the Election Commission
does not appear to be fully justified, the Election Commission’s
proceedings restoring membership of the 1st respondent attained
finality only with the dismissal of the writ petition filed by the
Panchayat by judgment dated 21/05/2009. This review petition
was filed on 20/08/2009 and therefore, at best there is a delay of
three months, which is not an inordinate delay requiring rejection of
R.P.1077/2009 in WP(C) No.9156/2008
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the request of the petitioner on the ground of delay.
7. Facts show that in view of the developments subsequent
to the filing of the writ petition, resulting the resignation of the 1st
respondent, the petitioner was denied an opportunity to contest the
case on merits. In view of the still subsequent developments, I feel,
it is only appropriate that he should be given an opportunity to
argue the case on merits recalling the judgment in the writ petition.
Having regard to the above, I feel, the review petition deserves
to be allowed. Accordingly, R.P.No.1077/2009 is allowed.
Judgment dated 01/09/2008 in WP(C) No.9156/2008 is recalled.
Post the writ petition for hearing afresh.
Sd/-
(ANTONY DOMINIC, JUDGE)
jg
//TRUE COPY//
PA TO JUDGE.