High Court of KeralaSingle Judge2020-11-25Writ petition dismissed

Abdulla v. Kerala State Election Commission and Others

Case / Petition Number:WP(C) No.25778 of 2020 (V)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. B. Suresh Kumar
Judgment Date: 2020-11-25
Court Decision / Holding: The writ petition is dismissed. The court finds that the impugned decision does not satisfy the threshold to interfere in the ongoing election; however, the judgment clarifies that the petitioner may challenge the decision in an election petition under the relevant statute.
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

Abdulla

Respondents

Kerala State Election Commission
Returning Officer for election to Ward Nos. 22 to 42, Kalamassery Municipality and Executive Engineer, Irrigation Minor Irrigation Division, Ernakulam, Kakkanad, Kochi - 682030
Assistant Returning Officer for election to Ward Nos. 22 to 42, Kalamassery Municipality and General Superintendent, Kalamassery Municipality, Changamangalam Naga r P.O, Cochin - 682033
Seena T.O., Returning Officer for election to Ward Nos. 22 to 42 of Kalamassery Municipality and Executive Engineer, Irrigation, Minor Irrigation Division, Ernakulam, Kakkanad, Kochi - 682030
V. Aswini Kumar, Assistant Returning Officer for Election to Ward Nos.22 to 42, Kalamassery and General Superintendent, Kalamassery Municipality, Changamangalam Nagar P.O, Cochin - 682033
Kalamassery Municipality represented by its Secretary, Changamangalam Nagar P.O, Cochin - 682033

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Babu Karukpadath
• Smt. M.A. Vaheeda Babu
• Shri.P.U.Vinod Kumar
• Smt.Vaisakhi V.
• Shri.T.M.Muhammed Musthaq
• Shri.Unais K.P.

Counsels for Respondents

• SC. Murali Purushothaman
• GP. C.M Nazar

Case Synopsis & Summary

The writ petition challenges Ext.P11, an order of the Returning Officer rejecting Abdulla’s nomination papers for Ward No.31 in Kalamassery Municipality on 19.11.2020, purportedly for submission after 3 p.m. Abdulla contends that the nomination papers were submitted at 2.56 p.m. and relies on receipts Exts.P2–P5 showing time stamps before the cutoff; Ext.P11’s finding of late submission is disputed. The State Election Commission’s Standing Counsel raises a preliminary objection on maintainability under Article 243-O(b) of the Constitution, arguing Courts cannot intervene in electoral matters during an ongoing election. The judgment surveys landmark constitutional jurisprudence: NP Ponnuswami v. Returning Officer (AIR 1952 SC 64), Mohinder Singh Gill v. Chief Election Commissioner (AIR 1978 SC 851), and Manda Jaganath v. K.S. Rathnam (AIR 2004 SC 3600), to delineate the scope of writ jurisdiction in election matters. It notes that while a broad bar to interference exists, subsequent decisions authorize intervention where the conduct interferes with the free flow or progress of elections. Applying this, the court finds that the impugned decision did not hinder the election’s progress and hence the petition does not meet the test for interference. The writ petition is dismissed, with a caveat that the petitioner may seek relief in an election petition under the relevant statute. The order thus upholds the election process’s integrity while preserving a pathway for challenge through election petition.”

Provisions of Law Cited

Article 243-O(b) of the ConstitutionArticle 243-K of the ConstitutionArticle 329(b) of the ConstitutionSection 110 of the ActSection 15Section 30

Legal Doctrines & Maxims

pari materia
Mohinder Singh Gill doctrine on writ jurisdiction
Manda Jaganath principle
free flow of the scheduled election

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he submitted three nomination papers for Ward No.31 within the permissible time on 19.11.2020 and that Ext.P11’s conclusion that the nomination was submitted after 3 p.m. is incorrect. He relies on receipts Exts.P2–P5 to show times before the cutoff and seeks quashing of Ext.P11. He argues that the delay was administrative or technical rather than substantive and that denial of nomination should be permissible only through an election petition. He also asserts maintainability notwithstanding Article 243-O(b) given the potential impact on the electoral process.

Contentions of Respondents

The Standing Counsel for the State Election Commission argued that Article 243-O(b) bars court interference in electoral matters and that a writ petition challenging a nomination cutoff cannot be entertained during elections. The respondents rely on constitutional precedents (Ponnuswami, Mohinder Singh Gill, Manda Jaganath) to assert that the High Court should refrain from interfering in ongoing elections unless the contested action directly disrupts the free flow or progress of the poll. They maintain that the proper remedy for challenged nomination decisions lies in an election petition under relevant statute.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
N.P. Ponnuswami v. The Returning Officer, Namakkal, Salem Dist	AIR 1952 SC 64	Partly Overruled / Limited	Cited for its earlier broad rule against writ petitions in ongoing elections; later decisions restrict this scope and limit applicability.
Mohinder Singh Gill and another v. The Chief Election Commissioner	AIR 1978 SC 851	Positive	Constitution Bench decision used to delineate the permissible scope of writ review in election matters and to permit interference when the conduct hinders the election.
Manda Jaganath v. K.S. Rathnam and others	AIR 2004 SC 3600	Positive	Affirms that certain questions, such as the Returning Officer’s justification in denying a symbol, belong in an election petition rather than writ proceedings, refining the writ jurisdiction doctrine.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** ## **WP(C).No.25778 OF 2020(V)** **PETITIONER:** **ABDULLA, AGED 46 YEARS S/O. IBRAHIM, KIZHAKKE ANJIKKATH, CHANGAMPUZHA NAGAR P.O, COCHIN - 682033.** **BY ADVS.** **SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SHRI.P.U.VINOD KUMAR SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SRI.T.M.MUHAMMED MUSTHAQ SHRI.UNAIS K.P.** ## **RESPONDENTS:** **1 KERALA STATE ELECTION COMMISSION CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM - 695033, REPRESENTED BY ITS SECRETARY. 2 THE RETURNING OFFICER FOR ELECTIO TO WARD NOS. 22 TO 42, KALAMASSERY MUNICIPALITY AND EXECUTIVE ENGINEER, IRRIGATION MINOR IRRIGATION DIVISION, ERNAKULAM, KAKKANAD, KOCHI - 682030. 3 THE ASSISTANT RETURNING OFFICER FOR ELECTION TO WARD NOS.22 TO 42, KALAMASSERY MUNICIPALITY AND GENERAL SUPERINTENDENT, KALAMASSERY MUNICIPALITY, CHANGAMPUZHA NAGAR P.O, COCHIN- 682033.** ..2.. ## W.P.(C) No.25778 of 2020 - **4 SEENA T.O., RETURNING OFFICER FOR ELECTION TO WARD NOS. 22 TO 42 OF KALAMASSERY MUNICIPALITY AND EXECUTIVE ENGINEER, IRRIGATION, MINOR IRRIGATION DIVISION, ERNAKULAM, KAKKANAD, KOCHI - 682030.** - **5 V. ASWINI KUMAR ASSISTANT RETURNING OFFICER FOR ELECTION TO WARD NOS.22 TO 42, KALAMASSERY AND GENERAL SUPERINTENDENT, KALAMASSERY MUNICIPALITY, CHANGAMPUZHA NAGAR P.O, COCHIN - 682033.** - **6 KALAMASSERY MUNICIPALITY REPRESENTED BY ITS SECRETARY, CHANGAMPUZHA NAGAR P.O, COCHIN - 682033.** ## **R1 BY SHRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM** ## **OTHER PRESENT:** **SC. MURALI PURUSHOTHAMAN,GP. C.M NAZAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2020, THE COURT ON 25-11-2020 DELIVERED THE FOLLOWING:** W.P.(C) No.25778 of 2020 ..3.. ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.25778 of 2020** ## **-----------------------------------------------** ## **Dated this the 25th day of November, 2020** ## **J U D G M E N T** The petitioner has submitted three sets of nominations for election to the Kalamassery Municipality from Ward No.31. The nominations should have been submitted before 3 p.m. on 19.11.2020. It is stated by the petitioner that he submitted the nominations at 2.56 p.m. on that day. The nominations of the petitioner were however rejected by the Returning Officer as per Ext.P11 order holding that the petitioner has submitted the nominations after 3 p.m. on 19.11.2020. The petitioner asserts that the finding in Ext.P11 order that he has submitted the nominations after 3 p.m. on 19.11.2020 is incorrect. The petitioner relies on the recitals/endorsements in Exts.P2 to P5 receipts issued by the Assistant Returning Officer as regards the Serial numbers of the nomination papers and the time of submission of the nomination W.P.(C) No.25778 of 2020 ..4.. papers, to establish his case that he has submitted the nominations before 3 p.m. on 19.11.2020. The petitioner, therefore challenges Ext.P11 order on that ground in this proceedings. 2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the State Election Commission. 3. The learned Standing Counsel for the State Election Commission has raised a preliminary objection as to the maintainability of the writ petition. According to him, in the light of Article 243-O(b) of the Constitution, the writ petition is not maintainable. 4. Article 243-O of the Constitution reads thus: ## “ **243-O. Bar to interference by Courts in electoral matters.** — ## Notwithstanding anything in this Constitution,— (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court; W.P.(C) No.25778 of 2020 ..5.. (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.” It is seen that the question whether the jurisdiction of the High Court under Article 226 of the Constitution could be invoked to challenge an improper rejection of a nomination paper, while the election is in progress, has been answered in the negative by a Constitution Bench of the Apex Court in **N.P. Ponnuswami v. The Returning Officer** , **Namakhal Constituency, Namakkal, Salem Dist** [AIR 1952 SC 64], in the context of the _pari materia_ provision in Article 329(b) of the Constitution, holding that irregularities vitiating the election cannot be made the subject matter of a dispute before any court while the election is in progress. In **Mohinder Singh Gill and** **another v. The Chief Election Commissioner** , **New Delhi and others** [AIR 1978 SC 851], another Constitution Bench of the Apex Court however demarcated the area which is available for interference by the High Court under Article 226 of the Constitution. The relevant passage of the judgment dealing with the same reads thus: W.P.(C) No.25778 of 2020 ..6.. "But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrary wise. For example, after the President notifies the nation on the holding of elections under S.15 and the Commissioner publishes the calender for the poll under S.30, if the latter orders Returning Officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not. Because the Commissioner is preventing anelection, not promoting it and the Court's review of that order will facilitate theflow, not stop the stream. Election, wide or narrow be its connotation, means choice from a possible plurality monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all." In **Manda Jaganath v. K.S.Rathnam and thers** [AIR 2004 SC 3600], after referring to **Mohinder Singh Gill,** the Apex Court held, in the context of a decision taken by the Returning Officer in declining to allot to a candidate the symbol reserved for his political party, that the question whether the Returning Officer is justified in taking such a decision is not a matter for the High Court to decide in exercise of its writ jurisdiction. Paragraph 12 of the judgment in the W.P.(C) No.25778 of 2020 ..7.. said case dealing with the said conclusion reads thus: **12** . In our opinion, whether the Returning Officer is justified in rejecting this Form B submitted by the first respondent herein or not, is not a matter for the High Court to decide in the exercise of its writ jurisdiction. This issue should be agitated by an aggrieved party in an election petition only. After arriving at the conclusion aforesaid, referring to the passage from **Mohinder Singh Gill** extracted above, the Apex Court has explained in **Manda Jaganath,** the scope of interference under Article 226 of the Constitution thus: "Of course, what is stated by this Court hereinabove is not exhaustive of a Returning Officer's possible erroneous action which are amenable to correction in the writ jurisdiction of the Courts. But the fact remains that such errors should have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration. If by an erroneous order conduct of the election is not hindered then the Courts under Art.226 of the Constitution should not interfere with the orders of the Returning Officers, remedy for which lies in an election petition only." In the light of Article 243-O(b) of the Constitution and the decisions of the Apex Court referred to above, I am of the view that only if the W.P.(C) No.25778 of 2020 ..8.. impugned decision/action has the effect of interfering in the free flow of the scheduled election or hinder the progress of the election, this court would be justified in entertaining the writ petition. The case on hand does not satisfy the aforesaid requirement of law. The correctness or otherwise of the finding in Ext.P11 order cannot be adjudicated in this proceedings while the election is in progress. The writ petition, in the circumstances, is devoid of merits and the same is accordingly dismissed. It is, however, made clear that this judgment will not preclude the petitioner from challenging the decision impugned in the writ petition in an election petition instituted in accordance with the relevant statute. Sd/- **P.B.SURESH KUMAR, JUDGE.** ds W.P.(C) No.25778 of 2020 ..9.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ELECTION NOTIFICATION NO.2763 DATED 12.11.2020 ISSUED BY THE ELECTION COMMISSION. EXHIBIT P2 A TRUE COPY OF THE RECEIPT NO.ARO-202 DATED 19.11.2020 ISSUED BY THE 3RD RESPONDENT ARO ACKNOWLEDGING THE RECEIPT OF NOMINATION PAPERS BEFORE THE SPECIFIED TIME AS REQUIRED UNDER SECTION 110 OF THE ACT. EXHIBIT P3 A TRUE COPY OF THE RECEIPT NO. ARO 203 DATED 19.11.2020 ISSUED BY THE 3RD RESPONDENT ARO ACKNOWLEDGING THE RECEIPT OF NOMINATION PAPERS BEFORE THE SPECIFIED TIME AS REQUIRED UNDER SECTION 110 OF THE ACT. EXHIBIT P4 A TRUE COPY OF THE RECEIPT NO.ARO -204 DATED 19.11.2020 ISSUED BY THE 3RD RESPONDENT ARO ACKNOWLEDGING THE RECEIPT OF NOMINATION PAPERS BEFORE THE SPECIFIED TIME AS REQUIRED UNDER SECTION 110 OF THE ACT. EXHIBIT P5 A TRUE COPY OF THE RECEIPT DATED 19.11.2020 ISSUED TO ANOTHER CANDIDATE MR.AJITH KUMAR BY THE 3RD RESPONDENT, WHICH WERE ASSIGNED SERIAL NO.ARO -209. EXHIBIT P6 A TRUE COPY OF THE RECEIPT DATED 19.11.2020 ISSUED TO ANOTHER CANDIDATE MR. AJITH KUMAR BY THE 3RD RESPONDENT,** W.P.(C) No.25778 of 2020 ..10.. **WHICH WERE ASSIGNED SERIAL NO.ARO -210. EXHIBIT P7 A TRUE COPY OF THE RECEIPT DATED 19.11.2020 ISSUED ANOTHER CANDIDATE MR. ANTONY PRINCE BY THE 3RD RESPONDENT, WHICH WERE ASSIGNED SERIAL NO.ARO -211. EXHIBIT P8 A TRUE COPY OF THE RECEIPT DATED 19.11.2020 ISSUED TO ANOTHER CANDIDATE MR.ANTONY PRINCE BY THE 3RD RESPONDENT, WHICH WERE ASSIGNED SERIAL NO.ARO -212. EXHIBIT P9 A TRUE COPY OF THE RECEIPT DATED 19.11.2020 ISSUED TO ANOTHER CANDIDATE MR.ANTONY PRINCE BY THE 3RD RESPONDENT, WHICH WERE ASSIGNED SERIAL NO.ARO -213. EXHIBIT P10 A TRUE COPY OF THE REQUEST NO.ARO 203 DATED 20.11.2020 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT RETURNING OFFICER. EXHIBIT P11 A TRUE COPY OF THE INTIMATION/ORDER NO.A6/2301/2020 DATED 20.11.2020 ISSUED BY THE 2ND RESPONDENT RETURNING OFFICER TO THE PETITIONER.**