Abdul Hameed v. Cyriac Thomas and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **FRIDAY, THE 6TH DAY OF MAY 2016/16TH VAISAKHA, 1938** ## **WP(C).No. 16916 of 2016 (L)** ## **-------------------------------------------** ## **PETITIONER(S) :** **--------------------------** **ABDUL HAMEED, AGED 47 YEARS, S/O.HASSANKHANI, KOLLAMPARAMBIL HOUSE, PUSHPAKANDAM P.O., IDUKKI DISTRICT.** ## **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENT(S) :** - **----------------------------** **1. CYRIAC THOMAS, S/O.THOMAS, UDF CANDIDATE TO 092 PEERUMEDU ASSEMBLY CONSTITUENCY, UDF ELECTION COMMITTEE OFFICE, PEERUMEDU, IDUKKI DISTRICT 685 602.** **2. BIJIMOL E.S, W/O.P.J.REJI, LDF CANDIDATE TO 092 PEERUMEDU ASSEMBLY, CONSTITUENCY, LDF ELECTION COMMITTEE OFFICE, PEERUMEDU, IDUKKI DISTRICT 685 602.** **3. SREEKUMAR,** - **BJP CANDIDATE TO 092 PEERUMEDU ASSEMBLY, CONSTITUENCY, BJP ELECTION COMMITTEE OFFICE, PEERUMEDU, IDUKKI DISTRICT 685 602.** **4. ABDUL KHADER, AIADMK CANDIDATE TO 092 PEERUMEDU ASSEMBLY CONSTITUENCY, AIADMK ELECTION COMMITTEE OFFICE, PEERUMEDU, IDUKKI DISTRICT 685 602.** **5. THE RETURNING OFFICER, 092 PEERUMEDU LAC, ASSISTANT CARDAMOM SETTLEMENT OFFICER, KUMALY, IDUKKI DISTRICT 685 509.** **6. THE DISTRICT ELECTION OFFICER, IDUKKI 685 602.** **7. THE ELECTION COMMISSION OF INDIA REPRESENTED BY THE SECRETARY NIRVACHAN SADAN, ASOKA ROAD, NEW DELHI 110 001.** - **R5 & R6 BY GOVERNMENT PLEADER SRI.P.S.SAJEEV R7 BY ADV. SRI.MURALI PURUSHOTHAMAN, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 16916 of 2016 (L) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **P1 TRUE COPY OF THE RECEIPT OF THE 5TH RESPONDENT FOR HAVING FILED THE NOMINATION.** - **P2 TRUE COPY OF THE RECEIPT OF THE 5TH RESPONDENT FOR HAVING THE AFFIDAVIT OF THE PETITIONER.** - **P3 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** - **P4 TRUE COPY OF THE DECISION DATED 30/04/2016 ISSUED BY THE 5TH RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **ANIL K.NARENDRAN, J** **--------------------------------------------------** **W.P.(C.)No.16916 of 2016 -------------------------------------------------DATED THIS THE 6[th] DAY OF MAY, 2016** ## **JUDGMENT** The petitioner has submitted nomination as a candidate sponsored by the Social Democratic Party of India, a political party recognised by the Election Commission of India to 092 Peerumedu Assembly Constituency. The petitioner is before this Court in this Writ Petition aggrieved by Ext.P4 decision taken by the 5[th] respondent. By Ext.P4, the nomination submitted by the petitioner has been rejected due to 'incomplete affidavit'. In the Writ Petition, the petitioner has raised various grounds contending that the rejection of nomination for the defect noted in Ext.P4 is _per se_ arbitrary and as such it has to be interfered with by this Court in exercise of the discretionary jurisdiction under Article 226 Constitution of India. 2. A statement has been filed on behalf of the 7[th] respondent pointing out that improper rejection of nomination is a ground available to the petitioner in an election petition filed under Section 100(1)(c) of the Representation of People Act, 1951. The learned Standing Counsel for the 7[th] respondent has also relied on W.P.(C).No.16916/16 -2- various judgments of the Apex Court in order to contend that the present Writ Petition is not maintainable in view of the provision contained under Article 329(b) of the Constitution of India. 3. I heard arguments of the learned counsel for the petitioner and also the learned Standing Counsel for the Election Commission of India, appearing for respondents 5 to 7. 4. In the case of **Election Commission of India Vs. Ashok Kumar reported in (2000) 8 SCC 216)** the Apex considered the jurisdiction of the High Court to entertain petitions under Art.226 of the Constitution of India to issue interim direction after commencement of electoral process. After taking into consideration of the decisions of the Constitution Bench in N. P. Ponnuswami v. Returning Officer, Namkkal Constituency, AIR 1952 SC 64 and Mohinder Singh Gill v. Chief Election Commissioner, 1978 (1) SCC 405, the Apex Court held as hereunder:- ''32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove: W.P.(C).No.16916/16 -3- (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to ''calling in question an election '' if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well - settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or W.P.(C).No.16916/16 -4- to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court. (5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Art.329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the Court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material. '' Further, their Lordships, considering the facts of the case in Election Commission of India vs. Ashok Kumar (supra), wherein the ground alleged was malafide exercise of power, held as follows: - (para 34, page 233) Such a dispute could have been raised before and decided by the High Court if the dual test was satisfied: (i) the order sought from the Court did not have W.P.(C).No.16916/16 -5- the effect of retarding, interrupting, protracting or stalling the counting of votes and the declaration of the results as only that much part of the election proceedings had remained to be completed at that stage, (ii) a clear case of mala fides on the part of Election Commission inviting intervention of the Court was made out, that being the only ground taken in the petition.” 5. In the case on hand, going by the stand taken by the 7[th] respondent in its statement dated 4.5.2016, the list of contesting candidates has been published on 2.5.2016; symbols were allotted to the contesting candidates; and postal ballot papers have already been printed and are in the process of despatch to service voters. Since the election process has reached an advanced stage, any interference at this stage will interrupt, obstruct and delay the progress of election and would stall the election progress. 6. In the above circumstances, in view of the law laid down by the Apex Court in the judgment cited supra, no interference in the election process is permissible at this stage. If the petitioner is aggrieved by the rejection of his nomination, it is for him to move an appropriate petition in terms of Section 100 W.P.(C).No.16916/16 -6- ## (1)(c) of the Representation of People Act. Reserving the aforesaid right of the petitioner, this Writ Petition is dismissed as not maintainable. All contentions raised by the petitioner in this Writ Petition are left open to be raised before the appropriate Forum. Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S.to Judge