UTHAMAN P R Vs. KERALA STATE ELECTION COMMISSION

JUDGEMENT

(1.) The petitioner was the returned candidate from Ward No. II of Mavelikkara Municipality in the election held on 25.10.2010. The petitioner had contested the said election as an independent candidate, admittedly, under the banner of the Left Democratic Front (LDF). In the election, out of the 28 seats, LDF and the United Democratic Front (UDF) shared 13 seats each and the remaining two seats went to the Bharathiya Janatha Party. The election to the post of Chairperson was held on 8.11.2010. One Smt.Leela Abhilash stood as the candidate of the LDF. But, on account of the non-affixture of signature by the petitioner on the reverse side of the ballot paper the vote cast by him was declared as invalid. Thereupon, the petitioner had tendered his resignation to the Secretary of the Municipality on 8.11.2010 itself. According to the petitioner, on 15.11.2010 he had submitted Ext.P2 complaint before the Secretary of the Municipality and then moved the Election Commission by filing Ext.P4 petition in terms of the provisions under section 40(3) of the Kerala Municipality Act (for short 'the Act'). Ext.P5 is the order passed thereon. On finding that Ext.P4 was filed after the expiry of the statutorily prescribed period and the delay thereof could not be condoned the first respondent declined to entertain Ext.P4. It is in the said circumstances that this writ petition has been filed challenging Ext.P5 and seeking a declaration that the petitioner had initiated proceedings under section 40(3) of the Act within the period of limitation in view of Exts.P2 and P3.

(2.) Before considering the rival contentions, on merits, it is relevant to refer to the relevant provisions under the Act on the subject matter. Section 40 of the Act reads thus:-

(3.) It is thus obvious that any dispute that arose in respect of resignation of the Chairperson, Deputy Chairperson or Councillor shall be referred to the State Election Commission for decision and its decision shall be final. The proviso to section 40(3) enjoins that no dispute referred after the expiry of 15 days from the date of effect of the resignation shall be considered by the State Election Commission. Going by the provisions under section 40(1) resignation tendered by the Chairperson, Deputy Chairperson or any other Councillor of a Municipality would take its effect from the very date of receipt of the same by the Secretary and the Secretary is bound to report that fact forthwith to the Council and also to the Election Commission. Indisputably, date of resignation in the case on hand is 8.11.2010 and the same was received by the 2nd respondent, the Secretary of the Municipality on 8.11.2010 itself. So, going by the above provisions, dispute, if any, ought to have been referred to the Election Commission within 15 days from 8.11.2010 to bring it within the jurisdiction. Admittedly, the petitioner had preferred Ext.P4 petition only on 7.12.2010, that is, beyond the said statutorily prescribed period. The contention of the petitioner is that within three days from the date of submission of resignation he had submitted Ext.P2 complaint dated 15.11.2010 before the second respondent. According to him, the second respondent ought to have referred the dispute in terms of the provisions under section 40 of the Act to the first respondent. Ext.P3 is the receipt given in token of acceptance of Ext.P2. It is in the said circumstances that the petitioner contends that in view of Exts.P2 and P3, Ext.P4 petition moved by the petitioner under section 40(3) of the Act has to be treated as a petition filed within the stipulated time.