SHAILA TEACHER Vs. KERALA STATE ELECTION COMMISSION

JUDGEMENT

(1.) The petitioner Shaila Teacher is a Councillor of the Alappuzha Municipal Council. Ms. Shanimol Usman, the Chairperson of the said Municipal Council resigned on 20.9.2002. The Kerala State Election Commission has issued Ext. P11 order directing the Returning Officer, Alappuzha Municipality to conduct election to the office of the Chairperson on 17.10.2002. On the basis of Ext. P11, the Returning Officer has issued Ext. P10 election notice on 4/7.10.2002 notifying that the election of the Chairperson will be held on 17.10.2002 at 10.30 a.m. The petitioner has filed this Writ Petition praying for a direction to respondents 1 to 3 and 5 to postpone the election to fill up the casual vacancy of Chairperson by a few weeks. She has also prayed for direction to respondents 1 to 3 and 5 not to hold the election to fill up the casual vacancy of Chairperson till the dispute regarding illegal acceptance of 4th respondents resignation is resolved in the pending Original Petition, as the majority to rule the Municipality depends on it.

(2.) The 4th respondent Ms. Zeenath Nazar was a Councillor from Ward No. 37 of the Alappuzha Municipality. On 29.6.2002 she submitted a resignation letter (Ext. P2) to the Secretary of the Alappuzha Municipality. In Ext. P2 the 4th respondent stated that she was resigning as Councillor with effect from 29.6.2002. It is stated that, on 29.6.2002 itself, the 4th respondent submitted Ext. P3 letter to the Secretary of the Alappuzha Municipality stating that Ext. P2 resignation letter was given by her under threat and coercion and due to mental tension and that she was objecting to the bringing into force of the resignation under S.40(3) of the Kerala Municipality Act. The 4th respondent also requested that the dispute relating to the resignation may be referred to the State Election Commission. Accordingly, the Secretary of the Municipality referred the dispute to the State Election Commission. After hearing the parties the State Election Commission passed Ext. P7 order holding that the resignation of Ms. Zeenath Nazar (4th respondent herein) took effect at about 11 a.m. on 29.6.2002 and that she ceased to be a Councillor of Ward No. 37 of Alappuzha Municipality from 11 a.m. on 29.6.2002. Challenging the said order of the State Election Commission, the said Zeenath Nazar filed O.P. No. 24375/2002. Along with the Original Petition, C.M.P. No. 41275/2002 also was filed praying for stay of operation of the order of the State Election Commission and for allowing the petitioner to continue as Councillor of Ward No. 37 of Alappuzha Municipality pending disposal of the Original Petition. A learned Single Judge of this Court, on 28.8.2002, passed an order in the said C.M.P. directing that there shall not be any proceedings for election to Ward No. 37 of the second respondent Municipality without obtaining orders from the court. In other words, the prayer for stay of operation of the order of the State Election Commission was not granted by the court. Similarly, the prayer for allowing the petitioner to continue as Councillor of Ward No. 37 of Alappuzha Municipality also was not granted by the court. The only relief granted in C.M.P. No. 41275/2002 was the direction not to hold any election of Councillor from Ward No. 37 without obtaining orders from the court.

(3.) At the best, the petitioner in this Original Petition can only say that the resignation of the 4th respondent as Councillor from Ward No. 37 is pending in dispute in O.P. No. 24375/2002, because the prayer for stay of the order of the State Election Commission and the prayer for allowing the 4th respondent to continue as Councillor of Ward No. 37 were not granted by the learned Single Judge in C.M.P. No. 41275/2002 in O.P. No. 24375/2002. It cannot be said that the 4th respondent still continues to be a Councillor or that a vacancy does not exist in Ward No. 37 of the Alappuzha Municipality. At present this Court can proceed only on the basis that the 4th respondent has resigned as Councillor and a vacancy has arisen in Ward No. 37.