"CR"

1. Petitioners are respondents in different petitions filed by the first respondent before the Kerala State Election Commission under Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999, for short, the "Act".

2. The first respondent sent a petition to the Commission on 2.2.2009 by registered post alleging that the writ petitioners committed defection. The Commission's office received that on 4.2.2009, well within the period of fifteen days prescribed in Rule 4A(2) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000, for short, the "Rules".

3. Going by the files, the Commission's Secretary sent a letter by ordinary post on 16.2.2009 to the first respondent stating that the petition submitted through registered post could not be acted upon and that if the first respondent is desirous of filing petitions, he has to do so in terms of Civil Procedure Code either in person or through counsel. The first respondent pleads to have not got that. He thereafter filed different petitions under Section 4(1) of the Act and applied for condonation of delay in terms of clause 2 of Rule 4A of the Rules. The Commission condoned the delay, in exercise of discretion. That is impugned.

4. The facts being as noticed above, the petitioners contend that the Commission had acted unreasonably in the exercise of its discretion, in condoning the delay on a ground referable to the earlier petition. It is contended that the so-called institution through registered post could not have been acted upon at all, as it was contrary to law. Relying on Rule 29(2) of the Civil Rules of Practice which applied to the civil courts, it is argued that institution through registered post, telecommunication etc. are excluded and that the petition ought to have been instituted in terms of the Code of Civil Procedure. Based on this, it is pointed out that the application to condone the delay was groundless in as much as the earlier petition by registered post could never have been so made.

5. Per contra, learned counsel for the first respondent relying on Ramji Dayawala and Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80, dilated on the concept of discretion and further argued that the discretion being available and it having been exercised after adverting to and considering all relevant facts and factors, it may not be within the realm of writ jurisdiction to undo the exercise of discretion by the Commission, a statutory authority; more so because, the case in hand does not disclose any perverse, unfounded or arbitrary exercise of discretion. It is argued that the conduct of the first respondent in sending the petition on 2.2.2009 promptly after the writ petitioners allegedly defected, demonstrates the bonafides in prosecuting the matter before the Commission.

6. The Act stands without any prescription as to the period of limitation within which the jurisdiction of the Commission is to be invoked. Fundamentally, the prescription of a period of limitation abridges the remedy. This is normally made by primary legislation. Be that as it may, Rule 4A(2) of the Rules, made in exercise of power under Section 7 (1) of the Act, provides a period of fifteen days for filing the petition. If sufficient cause is shown, an application beyond time could also be entertained by the Commission.

7. The power of the Commission under Section 4 of the Act is to decide on the question as to disqualification on the ground of defection. Sub-section 2 of Section 4 requires that the Commission shall decide such issue after making such enquiry as it deems necessary. That provision also gives statutory finality to the decision of the Commission. The prescription in Section 5(1) that the provisions of CPC as may be applicable for trial of suit would apply for the disposal of the petition filed under Section 4(1) and the enumeration in Section 5(2), of the different powers from among those contained in CPC, which the Commission ma