A.V.Gopinathan Nair vs The State Election Commission on 16 February, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 5082 of 2009(E)



1. A.V.GOPINATHAN NAIR
                      ...  Petitioner

                        Vs

1. THE STATE ELECTION COMMISSION
                       ...       Respondent

                For Petitioner  :SRI.SUNIL CYRIAC

                For Respondent  :SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :16/02/2009

 O R D E R
                        S. SIRI JAGAN, J.
            --------------------------------------------
              W.P.(C)Nos. 5082 & 5083 OF 2009
            ---------------------------------------------
              Dated this the 16th day of February, 2009

                           JUDGMENT

These writ petitions are filed by the respondents in petitions

seeking to declare that they are disqualified from holding the post

of member of the Kozhuvanal Grama Panchayat, pending before

the State Election Commission, seeking a direction to the Election

Commission to decide the maintainability of the petitions as a

preliminary point in O.P.Nos.143/08 and 148/08.

2. The contention of the petitioners is that since under

Section 36(3) of the Kerala Panchayat Raj Act, the Election

Commission has to decide petitions before it in accordance with

the procedure applicable under the Code of Civil Procedure, the

Commission ought to have decided the maintainability of the

petition as a preliminary issue.

3. I am of opinion that the Election Commission should

not adjudicate petitions before it on piecemeal basis. The issue

of maintainability can also be considered and decided by the

Election Commission while passing final orders. Even under the

W.P.(c)No.5082/09 & Con.case 2

Code of Civil Procedure there is no inviolable Rule that

whenever a party seeks consideration of an issue as a

preliminary issue the Court should mandatorily decide the

issue before taking evidence. It depends on the facts and

circumstances of each case and also on the question as to

whether for deciding the preliminary issue also evidence is

necessary. Petitions before the Commission are to be decided

expeditiously by the very nature of the petitions. If

preliminary issues are to be decided separately, matter would

be prolonged unnecessarily. The petitioners herein would not

be prejudiced in any way by deciding the issue of

maintainability also in the final order. They can challenge the

decision on maintainability also while challenging the final

order.

In the above circumstances, I am not inclined to

entertain these writ petitions. Accordingly the writ petitions

are dismissed.

S. SIRI JAGAN, JUDGE
Acd

W.P.(c)No.5082/09 & Con.case 3